U.S. v. Hassoun, No. 06-15845.

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Tjoflat
• Citation: 476 F.3d 1181
• Decision Date: 30 January 2007
• Docket Number: No. 06-15845.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Adham Amin HASSOUN, Kifah Wael Jayyousi, a.k.a. Abu Mohamed, Jose Padilla, a.k.a. Ibrahim, a.k.a. Abu Abdullah Al Mujahir, a.k.a. Abu Abu Abdullah the Puerto Rican, Defendants-Appellees.

476 F.3d 1181 UNITED STATES of America, Plaintiff-Appellant,
v.
Adham Amin HASSOUN, Kifah Wael Jayyousi, a.k.a. Abu Mohamed, Jose Padilla, a.k.a. Ibrahim, a.k.a. Abu Abdullah Al Mujahir, a.k.a. Abu Abu Abdullah the Puerto Rican, Defendants-Appellees. No. 06-15845. United States Court of Appeals, Eleventh Circuit. January 30, 2007.

[476 F.3d 1183]

Lisa T. Rubio, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for U.S.

Kenneth M. Swartz (Court-Appointed), Law Office of Kenneth M. Swartz, P.A., Jeanne Baker (Court-Appointed), Jeanne Baker, P.A., Michael T. Caruso, Fed. Pub. Def., Miami, FL, William W. Swor (Court-Appointed), Law Office of William W. Swor, Detroit, MI, Kathleen, M. Williams, Fed. Pub. Def., West Palm Beach, FL, Andrew Patel, Law Office of Andrew Patel, New York City, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, and TJOFLAT and GIBSON,^* Circuit Judges.

TJOFLAT, Circuit Judge:

The Government appeals the dismissal of Count One of a superseding indictment that charges the defendants with various crimes arising from their alleged participation in a "support cell" with the aim of "promot[ing] violent jihad" as espoused by a "radical Islamic fundamentalist movement." The district court ruled that Count One was multiplicitous of Counts Two and Three — that is, that the superseding indictment charged the same offense in all three counts in violation of the defendants' rights against double jeopardy under the Fifth Amendment to the United States Constitution. For the reasons set forth below, we reverse the decision of the district court.

I.

On November 15, 2005, a grand jury in the Southern District of Florida returned an eleven-count superseding indictment against five individuals, three of whom — Adham Amin Hassoun, Kifah Wael Jayyousi, and Jose Padilla — are the respondents in this appeal. Counts One, Two, and Three are those relevant here, and for convenience of discussion we summarize them each slightly out of numerical order. Count One charges the defendants with violating 18 U.S.C. § 956(a)(1),¹ alleging that they conspired to commit acts of murder, kidnapping, and maiming outside the United States and that they committed one or more overt acts in the United States in furtherance thereof.² Count

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Three charges the defendants with violating 18 U.S.C. § 2339A(a) by providing material support and resources,³ and concealing and disguising the nature thereof, all with the knowledge and intent that the material support and resources be used in preparation for and carrying out a violation of § 956 (i.e., a conspiracy to murder, kidnap, or maim on foreign soil).⁴ Count Two states a charge under 18 U.S.C. § 371, which generally criminalizes conspiracies to commit offenses against the United States;⁵ specifically, that count charges that the defendants conspired to violate § 2339A(a) by providing material support and resources in preparation for and carrying out a violation of § 956. In other words, Count Two charges the defendants with conspiring to commit the substantive offense alleged in Count Three, which in turn has as its object the offense alleged in Count One.

Defendant Padilla moved to dismiss Count One as multiplicitous of Counts Two and Three, and defendants Hassoun and Jayyousi joined in the motion. The defendants argued that the three counts essentially seek to punish them thrice for the same offense by alleging the same set of facts to prove what are, in their estimation, three indistinct charges. By its Omnibus Order of August 18, 2006, the district court granted the motion. The district court additionally denied the Government's motion for reconsideration on September 20, 2006, and the Government timely noticed

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its appeal.⁶ We review de novo the dismissal of a count of an indictment on multiplicity grounds. See United States v. Sirang, 70 F.3d 588, 595 (11th Cir.1995) (Gibson, J.).

II.

This appeal turns on the proper application of the familiar rule established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), that "where the same act or transaction constitutes a violation of two distinct statutory provisions," cumulative punishment may not be imposed unless "each provision requires proof of an additional fact which the other does not." Id. The rule is one of statutory construction, applied in order to gauge Congress's intent "that two statutory offenses be punished cumulatively." Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). We apply the test with a "focus[] on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Id. at 338, 101 S.Ct. at 1142 (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975)); see also United States v. Boldin, 772 F.2d 719, 729 (11th Cir.1985).

As a preliminary matter, we note that the Blockburger elemental analysis gives rise to only a presumption of congressional intent to authorize cumulative punishments. United States v. Lanier, 920 F.2d 887, 894 (11th Cir.1991); Boldin, 772 F.2d at 729. Our precedent instructs us that if other evidence, such as the legislative history of the relevant statutory provisions, contradicts the presumption, we are to respect Congress's express intent. See Lanier, 920 F.2d at 894; Boldin, 772 F.2d at 729. Here, both the Government and the defendants aver that legislative history weighs in their respective favors, but we find that none of the language to which they refer provides "the clear indication of contrary legislative intent necessary" to obviate the Blockburger analysis. Lanier, 920 F.2d at 894-95 (internal quotations omitted). For example, both the Government and the defendants point to language from the legislative debate on § 2339A that suggests Congress intended that section to create criminal liability for those who provide material support to terrorist activities but who might not otherwise technically be liable under criminal conspiracy or aiding-and-abetting principles. The defendants interpret that language to mean that § 2339A was intended to serve essentially as a facilitation statute, drawing those who would materially support an object offense (such as a conspiracy to murder, kidnap, or maim) "into the net" of liability for the primary offense. The defendants' argument, however, "read[s] much into nothing." See Albernaz, 450 U.S. at 341, 101 S.Ct. at 1143. Aside from the obvious — that the plain language of § 2339A stands alone from its various enumerated object offenses and creates criminal liability apart from those object offenses — the congressional debate

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can just as easily be read to support the Government's position that § 2339A was intended to create a wholly independent new offense. Moreover, one cannot logically conclude that, because Congress arguably enacted § 2339A to create new liability for some individuals who may not otherwise be guilty of an object offense, it necessarily follows that Congress intended that those individuals could not be guilty of both offenses as a result of the same acts.

With no clear legislative intent to guide us, we turn to the Blockburger analysis and examine the elements of each of the counts that the defendants claim is multiplicitous. The heart of the parties' dispute in this appeal is how the test is properly to be applied in this case. The defendants urge us to undertake a searching analysis of the substance of the counts, taking into consideration the facts alleged in support of those counts in the superseding indictment. They claim that, in essence, the Government has "merely reiterated, in each count, the single conspiracy to violate § 956(a)," founding each count upon "the same factual premise." Accordingly, they suggest, the court must "determine whether, in substance as well as form, the indictment charged separate violations." (first emphasis added).

The defendants misapprehend the proper application of the Blockburger analysis to the superseding indictment against them. Our precedent establishes that when comparing charges under different statutory provisions — such as the contested counts here — we examine only the elements themselves; if an offense requires proof of an element that the other offense does not, we need look no further in determining that the prosecution of both offenses does not offend the Fifth Amendment. See, e.g., United States v. Adams, 1 F.3d 1566, 1574 (11th Cir.1993); Lanier, 920 F.2d at 893; Boldin, 772 F.2d at 726. Specifically, we need not examine the facts alleged in the indictment to support the counts nor the...