U.S. v. Elmardoudi, 06-CR-112-LRR.
| Decision Date | 05 July 2007 |
| Docket Number | No. 06-CR-112-LRR.,06-CR-112-LRR. |
| Citation | 611 F.Supp.2d 864 |
| Parties | UNITED STATES of America, Plaintiff, v. Abdel-Ilah ELMARDOUDI, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Christopher A. Clausen, Boliver Law Firm, Marshalltown, IA, for Defendant.
Kandice A. Wilcox, Richard L. Murphy, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
ORDER ON DEFENDANT'S MOTION TO DISMISS ON DOUBLE JEOPARDY GROUNDS
I. INTRODUCTION ........................................................ 865
II. RELEVANT PROCEDURAL HISTORY ......................................... 865
A. Summary in Prior Order ........................................... 865
B. Relevant Details of the Michigan Proceedings ..................... 866
C. The Instant Indictment ........................................... 867
D. The Double Jeopardy Motion ....................................... 868
III. ANALYSIS ............................................................ 868
A. Double Jeopardy Principles are Not Implicated .................... 868
B. Alternative Holding: The Offenses are Not the "Same" ............. 870
IV. DISPOSITION ......................................................... 871
The matter before the court is Defendant Abdel-Ilah Elmardoudi's Motion to Dismiss for Violation of Double Jeopardy Clause of the Fifth Amendment and Request for Evidentiary Hearing ("Double Jeopardy Motion") (docket no. 57).
The court's January 22, 2007, 2007 WL 186526 order sets forth the relevant procedural history of this case, as well as criminal cases involving Defendant in the United States District Court for the District of Minnesota, the United States District Court for the Eastern District of Michigan ("Michigan Proceedings") and a prior case in this court. See Order (docket no. 26), at 1-4. The court shall not reiterate the entirety of this procedural history herein.
On January 29, 2003, Defendant was charged as one of four defendants in a four-count Third Superseding Indictment in the United States District Court for the Eastern District of Michigan ("Michigan Indictment"). Defendant was charged in Counts 1 and 2. The Michigan Indictment also charged Karim Koubriti, Ahmed Hannan and Farouk Ali-Haimoud.1
Count 1 of the Michigan Indictment charged all four defendants with conspiracy to provide material support or resources to terrorists, in violation of 18 U.S.C. §§ 371, 956(b), 2332b and 2339A ("Terrorism Count"). The Terrorism Count charged that the offense lasted from "about February 1998" and continued through the "time of [the Michigan Indictment]," that is, January of 2003.2 The nature of this alleged conspiracy was to perform services and acquire items which would be used to engage in or support a holy war, or "global jihad." The conspiracy included recruitment and production of false identification documents. The scope of the conspiracy was wide. The co-conspirators were alleged to have, planned "specific violent attacks," including ones in Turkey and Jordan; they were alleged to have conducted surveillance on landmarks in California and Nevada; they were alleged to have planned to send money and weapons to individuals in Algeria; and they received a wire transfer of money from an individual in Amsterdam. The conspiracy took place mainly in Detroit and Dearborn, Michigan, and Chicago, Illinois.
Count 2 of the Michigan Indictment charged the same four individuals with conspiracy to engage in fraud and misuse of visas, permits and other documents, in violation of 18 U.S.C. §§ 371, 1546(a) and 1546(b) ("Document Fraud Count"). The Document Fraud Count charged that the offense lasted "from in or about November, 2000, and continuing to on or about September 17, 2001." As for the nature and scope of the activity charged, the coconspirators were alleged to have attempted to obtain false U.S. and foreign passports, false resident alien cards, false Social Security cards and false Michigan operators' licenses. They are alleged to have done so for several purposes, including to attempt to conceal their true identities, to assist others in entering the United States illegally and "to secure and maintain a mail repository in a name other than their own in order to disguise, hide or otherwise conceal the true identity of the actual individual to whom mail was directed." The events of the conspiracy were alleged to have taken place in Michigan and Illinois.
Defendant was eventually tried on the Michigan Indictment in the Michigan Proceedings. See United States v. Koubriti, 252 F.Supp.2d 437, 439 (E.D.Mich.2003); see also United States v. Koubriti, 305 F.Supp.2d 723, 727 n. 3 (E.D.Mich.2003). On June 3, 2003, a jury found Defendant guilty of both the Terrorism Count and the Document Fraud Count. See id. at 736.3 After the trial, the Honorable Gerald E. Rosen, United States District Court Judge for the Eastern District of Michigan ("Judge Rosen"), ordered that the government conduct an investigation into credible allegations that the government withheld exculpatory evidence in the Michigan Proceedings. United States v. Koubriti, 336 F.Supp.2d 676, 678 (E.D.Mich.2004). The government conducted the investigation and, in the end, confessed error, agreed to dismiss the Terrorism Count and concurred with Defendant's motion for a new trial as to the Document Fraud Count. Id. at 682. On September 2, 2004, Judge Rosen entered an order dismissing the Terrorism Count without prejudice and granting a new trial on the Document Fraud Count. Id. Eventually, the government dismissed the Document Fraud Count, as well. See United States v. Koubriti, 435 F.Supp.2d 666, 670 & n. 5 (E.D.Mich.2006) ().
Count 1 of the instant Indictment charges Defendant with Conspiracy to Commit Document Fraud, in violation of 18 U.S.C. §§ 371, 1001 and 1546(a), and 42 U.S.C. §§ 408(a)(6) and 408(a)(7)(A). It charges that the offense lasted "[b]etween about June, 2001, and September, 2001." Defendant is alleged to have conspired with "other persons," none of whom are named as co-defendants. The Indictment does, however, allege that Defendant conspired with "B.S." and "Y.H."4 As for the nature and scope of the activity charged, the co-conspirators are alleged to have "devised a scheme to obtain false government identification documents for foreign nationals residing in the United States." Indictment (docket no. 1), at 2, ¶ 1. The co-conspirators are alleged to have offered their fraudulent document services to foreign nationals for a "lump sum fee." (Id.). They are alleged to have used computers to produce the documents and leased mailboxes at commercial mailbox facilities in attempts to secure legitimate addresses for the receipt of the fraudulent documents. The co-conspirators are alleged to have brought "[a]t least 20" foreign nationals to Iowa to help them obtain false Social Security numbers and cards using fraudulent 1-94 documents. (Id.). The events of the conspiracy are alleged to have taken place in the Northern and Southern Districts of Iowa, primarily in Dubuque, Waterloo, Cedar Rapids and Iowa City.
Count 2 of the instant Indictment is not a conspiracy charge. It charges the following:
On about August 30, 2001, in the Northern District of Iowa, [Defendant], a/k/a "George Labibe," a/k/a "Jean-Pierre-Tardelli," a/k/a "Hussein Mohsen Safieddine," a/k/a "Abdullah," for the purpose of obtaining a thing of value and for other purposes, did willfully, knowingly, and with the intent to deceive, use social security account number XXX-XX-8421. Said account number had been assigned by the Commissioner of Social Security to "Jean-Pierre Tardelli," on the basis of false information furnished to the Commissioner of Social Security. Defendant used social security account number XXX-XX-8421 to apply for and receive a State of Iowa identification card, number XXX-XX-1493, in the name of "Jean-Pierre Tardelli" and to apply for a bank account at Marquette Bank in Cedar Rapids, Iowa.
This in violation of Title 42, United States Code, Section 408(a)(7)(A).
Indictment (docket no. 1), at 9.
On June 8, 2007, Defendant filed the Double Jeopardy Motion. On June 19, 2007, the government filed its resistance. (docket no. 65). On July 2, 2007, Defendant filed a supplement to the Double Jeopardy Motion. (docket no. 72). On July 3, 2007, the court held an evidentiary hearing ("Hearing") on the Double Jeopardy Motion and two other motions. Defendant introduced two affidavits (docket nos. 73 & 74) as evidence.5 After the Hearing, the government filed a response to one of the affidavits. (docket no. 76). Defendant was personally present at the Hearing with his Attorney Christopher A. Clausen. Assistant United States Attorney Kandice A. Wilcox represented the government. The court finds the Double Jeopardy Motion to be fully submitted and ready for decision.
Defendant argues that the charges in the instant Indictment violate the Double Jeopardy Clause, and he moves for dismissal of the Indictment.
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