U.S. v. Mubayyid
| Decision Date | 08 March 2007 |
| Docket Number | Criminal No. 05-40026-FDS. |
| Citation | 476 F.Supp.2d 46 |
| Parties | UNITED STATES of America v. Muhamed MUBAYYID and Emadeddin Z. Muntasser, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Michael C. Andrews, Law Offices of Michael C. Andrews, Boston, MA, Elizabeth A. Lunt, Malick W. Ghachem, Norman S. Zalkind, Susan Estrich, Zalkind, Rodriquez, Lunt & Duncan LLP, Boston, MA, Harvey A. Silvergate, Cambridge, MA, for Defendants.
B. Stephanie Siegmann, Aloke Chakravarty, Donald L. Cabell, U.S. Attorney's Office, Michael D. Ricciuti, Kirkpatrick & Lockhart Nicholson Graham LLP, Boston, MA, for United States of America.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
This is a criminal prosecution under 18 U.S.C. § 1001 (false statements), 18 U.S.C. § 371 (), and 26 U.S.C. § 7206(1) (). In essence, the indictment charges that defendants Muhamed Mubayyid and Emadeddin Z. Muntasser fraudulently obtained a charitable exemption under § 501(c)(3) of the Internal Revenue Code for an entity known as Care International, Inc. According to the indictment, defendants concealed the fact that Care solicited and distributed funds for, and issued publications supporting and promoting, Islamic holy war ("jihad") and holy warriors ("mujahideen").
Defendants have moved to dismiss the indictment on multiple grounds, not all of which are entirely clear. In essence, defendants appear to contend that the indictment should be dismissed (1) because the prosecution violates defendants' rights of free speech and free exercise of religion under the First Amendment; (2) because the indictment and prosecution violate defendants' right to fair notice under the Due Process Clause of the Fifth Amendment; and (3) because the prosecution was unlawfully selective and vindictive in violation of the Due Process and Equal Protection Clauses of the Fifth Amendment. For the reasons set forth below, the motion will be denied.
On May 11, 2005, a grand jury returned an indictment charging defendants Mubayyid and Muntasser with one count of scheming to conceal material facts in violation of 18 U.S.C. § 1001(a)(1) and one count of conspiring to defraud the United States in violation of 18 U.S.C. § 371. The indictment also charges Mubayyid with three counts of filing a false tax return in violation of 26 U.S.C. § 7206(1) and Muntasser with one count of making false statements in violation of 18 U.S.C. § 1001(a)(2).1
In support of these charges, the indictment alleges the following facts.
In the early 1990's, Emadeddin Muntasser was involved in operating the Boston branch office of the Al-Kifah Refugee Center, an organization that supported Muslim holy warriors ("mujahideen") engaged in violent, religious-based conflict ("jihad").2 The Boston office of AlKifah published a pro-jihad newsletter entitled "Al-Hussam," which is an Arabic term meaning "the Sword."
In 1993, media reports linked Al-Kifah's New York office to the bombing of the World Trade Center. Shortly thereafter, Muntasser founded and incorporated Care International, Inc., in Massachusetts. According to its articles of incorporation, Care was "organized exclusively for charitable, religious, educational, and scientific purposes including, but not limited to, engage in, establish, promote, contribute and carry out human welfare, charitable and relief activities, programs, projects, organizations, institutions and funds." Muntasser served as its president from 1993 to 1996.3
The indictment alleges that Care, like Al-Kifah, was engaged in activities involving the solicitation and expenditure of funds to support and promote the mujahideen and jihad. It further alleges that Care was located at Al-Kifah's Boston office and assumed publication of its AlHussam newsletter.
Shortly thereafter, Muntasser filed an application with the Internal Revenue Service, pursuant to 26 U.S.C. § 501(c)(3), seeking tax-exempt status for Care on the grounds that it was a charitable organization. An organization seeking such an exemption must submit an IRS Form 1023 (Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code). Form 1023 requires the organization to demonstrate that it is organized and operated exclusively for charitable purposes, and that any non-exempt purpose is incidental and not substantial to its operation.4 The IRS's initial determination as to whether an organization qualifies for tax-exempt status is based upon the information provided in Form 1023.
The Form 1023 filed by Muntasser stated that Care was recently incorporated; that it would become operational shortly; and that it would provide charitable services, such as Copies of Care's articles of incorporation and by-laws were attached to the Form 1023.
Among other things, the Form 1023 asked whether "the organization [is] the outgrowth of (or successor to) another organization, or does it have a special relationship with another organization by reason of interlocking directorates or other factors," and required the applicant to "explain" if the answer was "yes." Muntasser answered "no" to this question.
Muntasser filed the Form 1023 on behalf of Care in June 1993. He signed the form under the pains and penalties of perjury, affirming that the "application, including the accompanying schedules and attachments, ... to the best of my knowledge ... is true, correct, and complete."
The indictment alleges that defendants knowingly and willfully schemed to conceal material information from the IRS in connection with the application-specifically, that Care planned to solicit and distribute contributions for, and issue publications supporting and promoting, jihad and the mujahideen. The indictment further alleges that defendants schemed to conceal the fact that Care was an outgrowth of, and successor to, Al-Kifah.
The IRS granted Care tax-exempt status in October 1993. The letter notifying Muntasser of this decision instructed him to report any changes in Care's "purposes, character, or method of operation" to the IRS.5
An organization that has been granted tax-exempt status pursuant to § 501(c)(3) is required to file an IRS Form 990 (Return of Organization Exempt from Income Tax) for each year in which its contributions received exceed $25,000. The information provided in Form 990 is used by the IRS to determine, among other things, whether an organization that has been granted tax-exempt status remains so qualified. If the IRS determines that an organization is no longer operating consistently with its tax-exempt status, that status will be revoked.
Muhamed Mubayyid served as Care's treasurer from 1997 to 2003. From 1993 to 2003, Care — acting through Muntasser Mubayyid, and others-filed various Form 990 returns with the IRS. Question 76 on each Form 990 asked whether the organization has engaged in any activity not previously reported to the IRS. None of the returns reported any changes in Care's activities from the Form 1023, or disclosed that Care was engaged in activities involving the solicitation and expenditure of funds to support and promote the mujahideen and jihad, including the distribution of pro-jihad publications.
Finally, the indictment alleges that Muntasser made material misrepresentations and omissions to the Federal Bureau of Investigation and to the Immigration and Naturalization Service.6 Muntasser was interviewed by the FBI's Joint Terrorism Task Force in April 1999 and April 2003. At both interviews, Muntasser stated that Care was a charitable organization and did not disclose that it was engaged in activities supporting jihad and the mujahideen. During the April 1999 interview, Muntasser disclosed a trip he made to Pakistan in 1994 or 1995, but concealed the fact that during that trip he also traveled to Afghanistan in furtherance of Care's activities. During the April 2003 interview, he expressly denied traveling to Afghanistan.
In October 2002, Muntasser submitted an Application for Naturalization to the INS. In the naturalization application, he did not disclose his association with Care or Al-Kifah and the fact that he had traveled to Afghanistan. However, when interviewed by the Department of Homeland Security in November 2003 and April 2004, Muntasser admitted his membership in AlKifah and Care from 1993 to 1996 and having traveled to Pakistan and Afghanistan in 1994 and 1995.
Fed.R.Crim.P. 12(b)(2) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Here, defendants have filed a pretrial motion seeking to dismiss the indictment in its entirety.
"An indictment, or a portion thereof, may be dismissed if it is otherwise defective or subject to a defense that may be decided solely on issues of law." United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003); see also United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005); United States v. Tawahongva, 456 F.Supp.2d 1120, 1125 (D.Ariz. 2006). In considering a motion to dismiss an indictment, the Court assumes all facts in the indictment to be true and views all facts in the light most favorable to the government. United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); United States v. Ferris, 807 F.2d 269, 271 (1st Cir.1986). To the extent a motion to dismiss relies on disputed facts, the motion should be denied. United States v....
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