U.S. v. Ressam, No. CR99-666C (W.D. Wash. 4/3/2001), CR99-666C.

• Decision Date: 03 April 2001
• Docket Number: No. CR99-666C.,CR99-666C.
• Court: U.S. District Court — Western District of Washington
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. AHMED RESSAM, Defendant.

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UNITED STATES OF AMERICA, Plaintiff,
v.
AHMED RESSAM, Defendant. No. CR99-666C. United States District Court, W.D. Washington at Seattle. April 3, 2001.

Thomas W. Hillier, II, Federal Public Defender, Michael Filipovic, Assistant Federal Public Defender, Jo Ann Oliver, Assistant Federal Public Defender, Attorneys for Ahmed Ressam.

MOTION AND MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 1

COUGHENOUR, Chief Judge.

NOW COMES the defendant, Ahmed Ressam, by undersigned counsel, and asks this Court to consider the following motion and memorandum of law in support of his motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29(a).

ARGUMENT

In various pretrial pleadings (Dkt. Nos. 123, 146 183), the defendant has argued that Count 1 is fundamentally flawed in several respects: because the Indictment is too vague and indefinite to provide adequate notice of the charge against him, because it alleges a crime that does not exist, i.e., conspiracy to commit a conspiracy; because it may allege a conspiracy that does not exist under Washington law insofar as it alleges a conspiracy to commit offenses defined in terms of recklessly causing a result; and because it could not prove that the State of Washington would have criminal jurisdiction over the offenses alleged. As the defendant pointed out, these defects appeared to stem from the inability of the government to identify the target of the alleged conspiracy.

In its case-in-chief, the government introduced no evidence about the target of the conspiracy. Consequently, the defendant hereby renews all of his objections to Count 1. Additionally, apart from any legal deficiencies in the Indictment, there is simply a failure of proof, which compels this motion for a judgment of acquittal as to this count.¹

It is undisputed that, in order to prove a violation of 18 U.S.C. § 2332b(a)(1)(B), the government must introduce evidence from which a jury could conclude beyond a reasonable doubt that the defendant conspired "to destroy or damage any structure, conveyance, or other real or personal property within the United States." This requires proof that the defendant was a member of a conspiracy that had as its objective the destruction of property within the United States, that he knew this was the objective of the conspiracy, and that he intended to help accomplish that objective. See, e.g., Ingram v. United States, 360 U.S. 672 (1959) (knowledge of the objective of the conspiracy is an essential element of any conspiracy conviction); United States v. Monroe, 552 F.2d 860, 862-63 (9th Cir.), cert. denied, 431 U.S. 972 (1977).

The government has not established proof of any of these elements. There is an absence of any evidence, either direct or circumstantial, that Mr. Ressam knew there were explosives in the car, let alone their intended destination. Most glaring however, is the lack of evidence that he intended to help accomplish the objective of the alleged conspiracy, or that he even knew what the objective was. In fact, the government has not even introduced sufficient evidence from which a jury could find that any two persons, even excluding Mr. Ressam, agreed to destroy property within the United States. Under these circumstances, Mr. Ressam is entitled to a judgment of acquittal on this count.

Where the government has proven a conspiracy, evidence establishing a defendant's connection with it, even though the connection is slight, is sufficient to convict the defendant of conspiracy.² United States v. Bautista-Avila, 6 F.3d 1360, 1362 (9th Cir. 1993). However, the evidence must show that the defendant had "knowledge of the conspiracy and acted in furtherance of it. Mere casual association of conspiring people is not enough." Id. (quotation and citation omitted) (emphasis in original). See also United States v. Roy, 589 F.2d 1258, 1268-69 (5th Cir. 1979) ("The essence of conspiracy is agreement; `(n)obody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it.'").

Although the evidence introduced by the government would support a finding that Mr. Ressam had knowledge of the timing devices found in the trunk of the car he was driving, it would not support a finding that he knew there were explosives in the car. Still less was there any evidence that he knew the explosives would be used to destroy real or personal property, that the property was located within the United States, and that he intended to help accomplish that goal. See, e.g., United States v. Hrasonich, 819 F.2d 253, 254 (9th Cir. 1987) (even if defendant knew alleged conspirator intended to use him to hide true ownership of property in order to evade income tax, defendant's conviction of conspiracy to defraud the United States in the "ascertainment, computation, assessment and collection" of the personal income taxes of a third party could not stand because government did not show defendant knew that was alleged objective of conspiracy).

Even if Mr. Ressam's behavior is consistent with someone involved in a conspiracy of this nature, it is equally consistent with someone who is "unwittingly associating with individuals" involved in such a conspiracy. Bautista-Avila, 6 F.3d at 1362. Consequently, he is entitled to a judgment of acquittal on this count. "When there is an innocent explanation for defendant's conduct as well as one that suggests that the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one." Id. (quoting United States v. Vasquez-Chan, 978 F.2d 546, 549 (9th Cir. 1992)). The government introduced no evidence that Mr. Ressam knew the goal of the conspiracy was to destroy real or personal property and more specifically, that the target of the conspiracy was within the United States. Where the objective of conspiracy, as here, includes a particular location, the defendant's knowledge must extend to the identity of that location. See, e.g., United States v. Conroy, 589 F.2d 1258, 1270 (5th Cir. 1979) ("Conspiracy to import a controlled substance into the United States requires proof of an agreement to commit every element of that substantive offense. Just as defendant cannot be convicted of such a conspiracy without knowledge that the substance he was...