U.S. v. Warsame

• Decision Date: 12 March 2008
• Docket Number: Criminal No. 04-29(JRT).
• Citation: 537 F.Supp.2d 1005
• Parties: UNITED STATES of America, Plaintiff, v. Mohamed Abdullah WARSAME, Defendant.
• Court: U.S. District Court — District of Minnesota

537 F.Supp.2d 1005

UNITED STATES of America, Plaintiff, v. Mohamed Abdullah WARSAME, Defendant.

Criminal No. 04-29(JRT).

United States District Court, D. Minnesota.

March 12, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas M. Hollenhorst and William H. Koch, Assistant United States Attorneys, Office of the United States Attorney, Minneapolis, MN, Joseph N. Kaster, United States Department of Justice, Washington DC, for plaintiff.

David C. Thomas, Law Offices of David C. Thomas, Chicago, IL, Andrea K. George, Assistant Federal Public Defender, Office of the Federal Public Defender, Minneapolis, MN, for defendant.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS COUNTS 1 AND 2 OF THE SUPERSEDING INDICTMENT

JOHN R. TUNHEIM, District Judge.

Defendant Mohamed Abdullah Warsame ("Warsame") is charged with conspiracy to provide material support and resources to a designated Foreign Terrorist Organization and with providing material support and resources to a designated Foreign Terrorist Organization, in violation of 18 U.S.C. § 2339B. Warsame is further charged with making false statements in violation of 18 U.S.C. § 1001(a)(2). This matter is before the Court on Warsame's Motion to Dismiss Counts 1 and 2 of the Superseding Indictment. Warsame argues that § 2339B violates the First, Fifth, and Sixth Amendments of the United States Constitution. For the reasons discussed below, the Court denies Warsame's motion.

BACKGROUND

On June 21, 2005, the prosecution filed a five-count Superseding Indictment against Warsame. Counts One and Two of the Superseding Indictment charged Warsame with conspiracy to provide and with providing material support and resources to a designated Foreign Terrorist Organization ("FTO"), in violation of 18 U.S.C. § 2339B. According to the Superseding Indictment, Warsame traveled to Afghanistan and Pakistan between 2000 and 2001 and attended Al Qaeda training camps. The Superseding Indictment also alleges that Al Qaeda paid Warsame's travel expenses to return to Canada, that Warsame sent money back to an Al Qaeda associate as repayment, and that Warsame maintained communications with individuals associated with Al Qaeda after his return to Canada.

On February 16, 2007 the Court issued an Order granting in part Warsame's motions for a bill of particulars. The Court determined that the charges of material support contained in the Superseding Indictment were not sufficiently detailed to allow Warsame to effectively challenge the constitutionality of 18 U.S.C. § 2339B. The Court therefore ordered the prosecution to file a bill of particulars specifying the activities it contends constitute material support and resources, as enumerated in the statutory definition of 18 U.S.C. § 2339A(b)(1). On March 16, 2007, the prosecution filed a bill of particulars specifying the two counts of material support contained in the Superseding Indictment. The prosecution alleged that Warsame conspired to provide and provided material support and resources to a FTO in the form of "currency," "personnel," and "training." See 18 U.S.C. § 2339(A)(b)(1).

ANALYSIS

Warsame presents three separate arguments attacking the constitutionality of § 2339B and its related statutory provisions. First, Warsame contends that § 2339B violates the First Amendment because it restricts freedom of association and is unconstitutionally vague and overbroad. Second, Warsame argues that § 2339B violates the Due Process Clause of the Fifth Amendment because it imposes criminal liability in the absence of personal guilt. Third, Warsame contends that the statutory procedure for designating FTO's under 8 U.S.C. § 1189 violates the First, Fifth, and Sixth Amendments because it deprives a designated organization of notice and a hearing, and precludes a defendant from challenging the validity of the FTO designation in a subsequent criminal prosecution. Before addressing the merits of Warsame's constitutional arguments, which present issues of first impression in this circuit, the Court considers the relevant statutory framework at issue, as well as the adequacy of the Superseding Indictment and the bill of particulars.

I. STATUTORY FRAMEWORK

Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") in 1996, in an effort to eradicate fundraising in the United States for foreign terrorist organizations. See Pub.L. No. 104-132, 110 Stat. 1214. Recognizing the increasing sophistication of terrorist organizations, which often raise money for international terrorism under the guise of humanitarian or political causes, Congress criminalized the provision of material support or resources to foreign terrorist organizations that are designated by the Secretary of State. Section 303(a) of the AEDPA, codified at 18 U.S.C. § 2339B, provides that

[w]hoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.

18 U.S.C. § 2339B(a)(1).¹ "Material support or resources" is further defined as

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation except medicine or religious materials.

18 U.S.C. § 2339A(b)(1). To violate § 2339B, a person "must have knowledge that the organization is a designated terrorist organization ..., that the organization has engaged or engages in terrorist activity ..., or that the organization has engaged or engages in terrorism." 18 U.S.C. § 2339B(a)(1).

Under 8 U.S.C. § 1189, the Secretary of State is authorized to designate foreign terrorist organizations if the Secretary finds that (1) the organization is a foreign organization, (2) the organization engages in terrorist activity or retains the capability and intent to engage in terrorist activity, and (3) the terrorist activity threatens national security or the security of United States nationals. 8 U.S.C. § 1189(a)(1). The Secretary is not required to notify an organization that is being considered for designation as a FTO.² See 8 U.S.C. § 1189(a)(2)(A). Instead, prior to an organization's designation, the Secretary must notify select members of Congress by classified communication and shall publish the designation in the Federal Register seven days after the notification. 8 U.S.C. § 1189(a)(2)(A)(i)-(ii). Additionally, the Secretary may consider classified information in making a designation, which is unavailable for review by the designated organization. 8 U.S.C. § 1189(a)(3)(B). As such, the FTO designation procedure does not afford a designated FTO an opportunity to submit or review evidence on its behalf prior to its designation.

Following its designation, however, a FTO may seek judicial review in the Court of Appeals for the District of Columbia not later than 30 days after publication in the Federal Register. 8 U.S.C. § 1189(c)(1). Under § 1189(a)(8), "a defendant in a criminal action ... shall not be permitted to raise any question concerning the validity of the issuance of such designation as a defense or an objection at any trial or hearing." 8 U.S.C. § 1189(a)(8).

II. THE BILL OF PARTICULARS

On February 16, 2007, the Court granted in part Warsame's motions for a bill of particulars, finding that the prosecution's failure to provide specific charges in the Superseding Indictment impeded Warsame's ability to prepare an effective defense. In particular, the Court found that Warsame's as-applied constitutional challenge to 18 U.S.C. § 2339B required a more precise description of the material support allegedly provided by Warsame. On March 16, 2007, the prosecution filed with the Court its bill of particulars. The prosecution alleged that Warsame provided material support or resources to Al Qaeda in the form of "personnel," "currency," and "training." The prosecution specified in subsequent briefing that Warsame allegedly provided "personnel" by voluntarily participating in an Al Qaeda training camp in Afghanistan. The prosecution further alleged that Warsame provided "currency" by sending money to a former Al Qaeda training camp instructor, and that he provided "training" by giving English-language lessons to Al Qaeda members in Pakistan.

The Court finds that the bill of particulars is sufficiently precise to enable Warsame to effectively challenge the constitutionality of § 2339B as it applies to his alleged conduct in this case. As discussed below, Warsame's vagueness challenge to § 2339B requires an examination of whether the statute provides sufficient notice of the criminality of Warsame's alleged conduct. As such, the prosecution must set forth both the precise charges of material support under 18 U.S.C. § 2339A(b)(1), as well as specific factual allegations of criminal conduct. Based on the allegations described in the Superseding Indictment and the bill of particulars, the Court finds that Warsame now has sufficient information to challenge § 2339B on constitutional grounds.

Warsame contends that the bill of particulars cannot cure an alleged pleading deficiency of the Superseding Indictment, and that the Superseding Indictment should therefore be dismissed. Under Rule 7(c) of the Federal Rules of Criminal Procedure, an indictment must be "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c). The Eighth Circuit has held that an indictment is "legally sufficient on its face if it contains all of the essential elements of the offense...