U.S. v. Damrah

• Citation: 412 F.3d 618
• Decision Date: 15 March 2005
• Docket Number: No. 04-4216.,04-4216.
• Parties: UNITED STATES of America, Plaintiff-Appellee; v. Fawaz Mohammed DAMRAH, a/k/a Fawaz Damra, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 618

412 F.3d 618

UNITED STATES of America, Plaintiff-Appellee; v. Fawaz Mohammed DAMRAH, a/k/a Fawaz Damra, Defendant-Appellant.

No. 04-4216.

United States Court of Appeals, Sixth Circuit.

Argued: February 1, 2005.

Decided and Filed: March 15, 2005.^*

COPYRIGHT MATERIAL OMITTED

ARGUED: S. Michael Lear, Zukerman, Daiker & Lear, Cleveland, OH, for Appellant. Arnold C. Celnicker, Department of Justice, Washington, DC, for Appellee. ON BRIEF: S. Michael Lear, Zukerman, Daiker & Lear, Cleveland, OH, for Appellant. Arnold C. Celnicker, Department of Justice, Washington, DC, James V. Moroney, Asst. U.S. Attorney, Cleveland, OH, for Appellee. Jeffrey M. Gamso, American Civil Liberties Union of Ohio, Cleveland, OH, for Amicus Curiae.

Before NORRIS and GIBBONS, Circuit Judges; TODD, District Judge.^**

OPINION

GIBBONS, Circuit Judge.

Fawaz Mohammed Damrah was found guilty of unlawfully obtaining citizenship in violation of 18 U.S.C. § 1425 by making false statements in a citizenship application and interview. Damrah was sentenced to two months of incarceration, four months of home confinement with electronic monitoring, and three years of supervised release. The district court also ordered Damrah's citizenship revoked pursuant to 8 U.S.C. § 1451(e). Damrah now appeals, asking this court to overturn his conviction.

I.

Fawaz Mohammed Damrah, a/k/a Fawaz Damra, entered the United States on a visa in 1984. Approximately two years later he became the Imam, or religious leader, of the Al-Farooq Mosque in Brooklyn, New York. Damrah left New York City in 1990 and moved to Cleveland, Ohio, where he became the Imam of the Islamic Center of Cleveland, the position he held at the time of his June 2004 trial. Damrah filed an application for naturalization on October 18, 1993. A naturalization interview was conducted on December 17, 1993, and he was naturalized on April 24, 1994.

Damrah was involved in establishing the New York office of Afghan Refugee Services, Inc., ("ARS") an organization created to support fighters in Afghanistan attempting to expel the Russians in the late 1980's. Specifically, Damrah approached the Board of Directors of the Al-Farooq Mosque and obtained approval to open an ARS office within the Mosque. Additionally, Damrah was an initial director of ARS and traveled around the United States with the leader of ARS raising money for the organization. Damrah's 1990 departure from the Al-Farooq Mosque resulted from a dispute over the use of contributions to ARS after the Soviets were expelled from Afghanistan in February 1989.

Damrah was also involved with the Palestinian Islamic Jihad ("PIJ") an the Islamic Committee for Palestine ("ICP"). The PIJ opposes the existence of the State of Israel and is committed to eliminating it. Terrorist attacks orchestrated by the PIJ have resulted in its designation as a Specially Designated Global Terrorist Organization by the United States Department of State and its inclusion, since 1989, as a major terrorist group in the Department of State publication, Patterns of Global Terrorism. The ICP was used to raise funds for the PIJ in the United States. Damrah's own characterization of the ICP, captured on video at a fund-raising event, is instructive: "A brief note about the Islamic Committee for Palestine: It is the active arm of the Islamic Jihad Movement in Palestine. We preferred to call it the `Islamic Committee for Palestine' for security reasons."¹ Videotapes containing footage showing Damrah speaking at fund raisers for the ICP and PIJ were seized in 1995 during a search of the home and offices of Sami Al-Arian, the president of the ICP.

Damrah submitted his application for naturalization, INS Form N-400, to the Cleveland Immigration and Naturalization Service ("INS") office on October 18, 1993. Question 3, Part 7 asked: "Have you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?" Damrah answered no. Part 9 of Form N-400, captioned "Memberships and organizations," instructed the applicant to:

List your present and past memberships in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place. Include any military service in this part. If none, write "none." Include the name of the organization, locations, dates of membership and the nature of the organization.

Damrah listed only the "Islamic Council of Ohio" and the "Islamic Center of Cleveland" in response to this question; he did not list ARS, the PIJ, or the ICP. Damrah signed Part 11 of Form N-400, which requires that the applicant "swear or affirm, under penalty of perjury under the laws of the United States of America, that this application, and the evidence submitted with it, is all true and correct."

Kim Adams, an INS examiner, interviewed Damrah on December 17, 1993. The interview was a naturalization requirement and was intended to permit the INS to make a determination about Damrah's qualifications for naturalization. Adams had the authority to deny the application based on information provided in the interview. Adams reviewed each of Damrah's answers on the INS Form N-400, noting any changes Damrah wished to make. Adams testified that a "yes" response to the persecution question "could render [the applicant] ineligible for naturalization." A dishonest answer to the persecution question would permit the INS to deny the application, as could providing information about organizations that might have been involved in persecution. Adams also testified that if an applicant reported a membership or affiliation with a suspect organization in response to Part 9 of Form N-400, she would elicit more information, request documentation, or "forward the application over to the investigative section for further inquiry." Intentionally providing false answers on Part 9 of the form could result in a denial of the application. Damrah signed the form, under penalty of perjury, at the conclusion of the interview. Damrah was granted naturalization on April 29, 1994. The omissions from Damrah's naturalization application were discovered in 1995 when videotapes were seized from Al-Arian's home and offices.

On December 16, 2003, a single count indictment was returned in the United States District Court for the Northern District of Ohio charging Damrah with unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(a) and (b). Specifically, Damrah was charged with (1) knowingly procuring naturalization contrary to law and to which he was not entitled by failing to disclose membership in or affiliation with ARS, the PIJ, and the ICP; (2) falsely stating that he had never ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion; and (3) failing to disclose that he had been arrested and charged with assault in January of 1989 in New York City.

On April 26, 2004, the United States filed a Notice of Intent to Use Foreign Intelligence Surveillance Act ("FISA") Information pursuant to 50 U.S.C. 1801 et seq. The intended evidence included audio tapes of phone conversations and two faxes. On the same day, Damrah filed a motion to suppress the evidence obtained from FISA surveillance of Al-Arian as well as a motion to compel production of FISA applications, orders, and related documents. The trial court denied both of Damrah's motions on June 9, 2004. A jury trial began on June 15, 2004. At the conclusion of the government's case, the district court granted Damrah's motion to dismiss the portion of the indictment regarding Damrah's arrest in 1989. The jury returned a guilty verdict on June 17, 2004. On September 20, Damrah was committed to the Bureau of Prisons for two months, followed by four months home confinement with electronic monitoring and three years of supervised release. On September 23, 2004, the district court ordered Damrah's citizenship revoked pursuant to 8 U.S.C. § 1451(e). Damrah filed a timely notice of appeal.

II.

A.

The indictment in this case was a one-count indictment charging Damrah with violating 18 U.S.C. § 1425(a) and (b). Damrah argues that the indictment was duplicitous because § 1425(a) and (b) are separate offenses, rather than different means of committing the same offense, and as such must be charged in separate counts in an indictment. See Fed. R.Crim.P. 8(a); United States v. Campbell, 279 F.3d 392, 398 (6th Cir.2002) (holding that a count charging two or more offenses is impermissibly duplicitous). Damrah further argues that the indictment was duplicitous because 18 U.S.C. §§ 1001 (making a false statement in a matter within the jurisdiction of the federal government) and 1015(a) (making a false statement relating to naturalization) were predicate offenses to the charged violation of § 1425. The crux of Damrah's argument is that the jury was instructed to consider four different statutes with different elements under a one-count indictment. Damrah asserts that this violated his rights to due process, jury unanimity, and to be informed of the nature of the accusations against him as guaranteed by the Fifth and Sixth Amendments.

Whether an indictment is duplicitous is a legal question that is reviewed de novo. Campbell, 279 F.3d at 398. "In determining whether there is duplicity or multiplicity [in an indictment] the decisive criteria are legislative intent and separate proof." United States v. Duncan, 850 F.2d 1104, 1108 n. 4 (6th Cir.1988). Rather than defining two crimes, § 1425(a) and (b) provide two means by which unlawful naturalization can be obtained. Under the statute, one can procure naturalization "contrary to law" (§ 1425(a)) or naturalization to which one is not entitled (§ 1425(b)). It is not duplicitous to allege in one count that multiple means...