U.S. v. Hassoun

• Decision Date: 12 March 2007
• Docket Number: No. 04-60001-CR.,04-60001-CR.
• Citation: 477 F.Supp.2d 1210
• Court: U.S. District Court — Southern District of Florida
• Parties: UNITED STATES of America, Plaintiff, v. Adham Amin HASSOUN, et. al., Defendant.

Page 1210

477 F.Supp.2d 1210

UNITED STATES of America, Plaintiff, v. Adham Amin HASSOUN, et. al., Defendant.

No. 04-60001-CR.

United States District Court, S.D. Florida, Miami Division.

March 12, 2007.

COPYRIGHT MATERIAL OMITTED

Marshall Dore Louis, Sinclair Louis Heath Nussbaum & Zavertnik, Miami, FL, William W. Swor, William W. Swor, Detroit, MI, for Defendant.

Richard Daniel Gregorie, Russell R. Killinger, Stephanie K. Pell, Brian K. Frazier, John Charlton Shipley, Jr., United States Attorney's Office, Miami, FL, for Plaintiff.

ORDER DENYING DEFENDANT HASSOUN'S MOTION TO DISMISS COUNTS 5-11, THE FALSITY COUNTS AND GRANTING HASSOUN'S MOTION TO SEVER THE FALSITY COUNTS

COOKE, District Judge.

THIS CAUSE came before the Court upon the defendant Adham Amin Hassoun's respective Motions to Dismiss Counts 5-11, the Falsity Counts [D.E. 592], and to Sever the Falsity Counts (Counts 5-11) [D.E. 591], both filed on October 2, 2006. This Court has reviewed the motions, the subsequent pleadings and conducted a hearing with regard to these motions on December 18, 2006, and finds as follows:

I. FACTS AND PROCEDURAL HISTORY

In the Fifth Superseding Indictment [D.E. 141] (the "Indictment"), the government jointly charged five defendants — Adham Amin Hassoun, Mohamed Hesham Youssef, Kifah Wael Jayyousi, Kassem Daher and Jose Padilla¹ — with three counts relating to the defendants' collective efforts to further jihad overseas.² These three counts, "the material support and conspiracy counts," are the only counts in the Indictment that implicate all of the defendants. In fact, these three counts are the only counts in the Indictment that charge any defendant other than Mr. Hassoun. The remaining eight counts in the Indictment — Counts 4 through 11 — charge only defendant Hassoun, and are related to his own independent acts, perpetrated without the assistance or support of the other four defendants. Of these eight counts, seven currently remain included in the Indictment. Count 4 charged Hassoun with unlawful possession of a firearm, and has already been severed [D.E. 483]. However, Counts 5 through 11, "the falsity counts," have remained intact and are the subject of Defendant Hassoun's motions that are presently before this Court.

The falsity counts cover Mr. Hassoun's various acts of alleged obstruction, all related to the underlying substantive material support and conspiracy counts. Count 11 charges Hassoun with obstructing his immigration proceedings, based in large part on his, alleged complicity in the activities charged in Counts 1, 2 and 3. The remaining counts all relate to individual instances of alleged obstruction; Count 5 charges Hassoun with making false statements to federal agents regarding the scope, of his involvement with co-defendant Youssef in the activities charged in Counts 1, 2 and 3 and Counts 6 through 10 charge Hassoun with perjury for testifying falsely during the immigration proceeding.

Defendant Hassoun's Motion to Dismiss Counts 5-11, filed on October 2, 2006 [D.E. 592], argues that the seven falsity counts are fatally defective as a matter of law. Accordingly, Hassoun contends that these counts should be dismissed from the face of the Indictment. The government filed its Response on October 26, 2006 [D.E. 627]. Defendant Hassoun subsequently filed his Reply on November 22, 2006 [D.E. 683]. Additionally, in conjunction with the Motion to Dismiss, Hassoun filed a Motion to Sever Counts 5-11 on October 2, 2006 [D.E. 591]. In this motion, Hassoun requests that in the event that this Court does not dismiss the falsity counts, they be severed from the material support and conspiracy counts and be tried separately. Defendant Hassoun contends that joinder of the falsity counts with the material support and conspiracy counts is prejudicial. Accordingly, Hassoun claims that all of the falsity counts should be severed from the material support and conspiracy counts under Rule 14. Additionally, Hassoun asserts that since Count 10, in particular, has no "common thread" with any of the other counts, it is mis-joined under Rule 8 and consequently should be severed. The government refuted these contentions in its October 24, 2006 Response [D.E. 618]. Defendant Hassoun subsequently filed his Reply to the government's Response on November 22, 2006 [D.E. 684]. For the reasons addressed in this Order, Defendant Hassoun's Motion to Dismiss the Falsity Counts is DENIED and Hassoun's Motion to Sever the Falsity Counts is GRANTED.

II. LEGAL STANDARD

A. MOTION TO DISMISS THE FALSITY COUNTS

When judging the sufficiency of an indictment, this Court is obligated to take the indictment's allegations to be true and assess whether a criminal offense has been stated. See United States v. Fitapelli, 786 F.2d 1461, 1463 (11th Cir.1986). At this stage in the proceeding, the factual allegations in the indictment must be viewed in the light most favorable to the government. United States v. Belcher, 927 F.2d 1182, 1185 (11th Cir.1991). Furthermore, in considering the Indictment's allegations for purposes of a motion to dismiss, this Court is limited to reviewing the face of the Indictment, and more specifically, the language used to charge the crimes. See United States v. Sharpe, 438 F.3d 1257 (11th Cir.2006).

Although Federal Rule of Criminal Procedure 12(b) permits dismissal where there is an infirmity of law in the prosecution, "a court may not dismiss an indictment ... on a determination of facts that should have been developed at trial." See United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir.1987), see also United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.1978)³ (noting that on a motion to dismiss the indictment, it is improper for the district court to pierce the pleadings or make a premature resolution of the merits of the allegations). "The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the, defendant of [the charges against him so that he may adequately prepare his defense and preserve subsequent double jeopardy defenses]." United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953).

Consistently, the Eleventh Circuit has cautioned against the premature dismissal of indictment counts. In United States v. Plummer, 221 F.3d 1298, 1302 (11th Cir. 2000), the Eleventh Circuit noted that the district court's premature dismissal resulted from its consideration of facts not alleged in the indictment. Id. at n. 3. The court held that "[a]t [the pretrial] stage ... the focus is the indictment itself." Id.

Limiting the Court's analysis to the contents of the indictment comports with a criminal defendant's right to have issues of fact decided by a jury; there is no summary judgment mechanism in a criminal trial. See United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992) (per curiam) (noting that the Rules do not provide for a pre-trial sufficiency of the evidence determination). Put simply, "[t]he Court may dismiss the case based upon: (1) a legal infirmity or defect in the charging instrument; or (2) a purely legal question, such as a determination that the statute is unconstitutional." United States v. Ferguson, 142 F.Supp.2d 1350, 1353-54 (S.D.Fla. 2000). Issues that require consideration of facts outside the narrow realm of these wholly legal inquiries are not the proper subject of a pretrial motion to dismiss in a criminal prosecution. Id.

For the Indictment counts at issue in this case to effectively overcome the challenges raised in the defendant's Motion to Dismiss, this Court must first consider the constituent elements of the crimes charged. Once the crimes' elements are laid out, it is incumbent upon this Court to review the Indictment's allegations and, taking the allegations to be true, assess whether the prosecution has stated a criminal offense.

Count 5 charges Hassoun with providing false statements to FBI and Department of Homeland Security (DHS) agents in contravention of 18 U.S.C. § 1001. A conviction under 18 U.S.C. § 1001 requires proof that the defendant: (1) specifically intended (2) to make a materially (3) false (4) statement (5) in a matter over which a federal agency exercises jurisdiction. United States v. Godinez, 922 F.2d 752, 755 (11th Cir.1991).

Counts 6-10 charge Hassoun with providing perjured testimony during an Immigration Court proceeding in contravention of 18 U.S.C. § 1621(1). To prove a defendant has violated 18 U.S.C. § 1621(1) the prosecution must show that the defendant (1) provided testimony made under oath or affirmation (2) that was false (3) with regard to a material matter, (4) and was given with the willful intent to provide false testimony and not as a result of a mistake, confusion or faulty memory. Id.; United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). In other words, "Mil order to prove that a defendant committed perjury, the government must prove that his statements were false and that he did not believe them to be true." United States v. Forrest, 623 F.2d 1107, 1110 (5th Cir.1980).

The crime of perjury is committed the moment the defendant utters the perjurious statements. Thus, there is no need to prove any governmental reliance. Rather, "[t]o satisfy the element of materiality, it is enough if the statements had a `natural tendency to influence or be capable of affecting or influencing', a governmental function." United States v. Diaz, 690 F.2d 1352, 1357 (11th Cir.1982) (quoting United States v. Markham, 537 F.2d 187, 196 (5th Cir.1976)).

Lastly, Count 11 charges Hassoun with Obstruction of Justice in violation of 18 U.S.C. § 1505. The count alleges that Hassoun is guilty of corruptly endeavoring to influence, obstruct, and impede the due and proper administration of law during a pending...