United States v. Ahmed
| Decision Date | 24 March 2015 |
| Docket Number | 12-CR-661 (SLT) (S-2) |
| Court | U.S. District Court — Eastern District of New York |
| Parties | UNITED STATES OF AMERICA v. ALI YASIN AHMED, et al., Defendants. |
In a second superseding indictment filed on December 1, 2014, Ali Yasin Ahmed, Madhi Hashi, and Mohamed Yusuf ("Defendants") have been charged with crimes relating to their alleged support of a foreign terrorist organization. Defendants are charged with conspiring to provide, providing, and attempting to provide "material support or resources to" and "receiving military-type training from" al-Shabaab, a "designated foreign terrorist organization," in violation of 18 U.S.C. §§ 2339B and 2339D, and using, carrying, or possessing, including brandishing and discharging, firearms, including a machine gun, in relation to and in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Trial in this case is scheduled to commence on May 18, 2015. Currently before the Court are Defendants' omnibus motions to dismiss the indictment and for other relief. (ECF Nos. 99, 100, 101, 103, 129, 130, 131, 147.)
Federal Rule of Criminal Procedure 12(b) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). In other words, Rule 12 authorizes defendants to challenge the lawfulness of a prosecution on purely legal, as opposed to factual, grounds. See United States v. Aleynikov, 676 F.3d 71, 75-76 (2d Cir. 2012) (). "The sufficiency of an indictment and the interpretation of a federal statute are both matters of law" reviewable on a motion to dismiss an indictment. Id. at 76. However, "[u]nless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial[,] ... the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment." United States v. Alfonso, 143 F.3d 772, 777-78 (2d Cir. 1998). In considering the sufficiency of an indictment, the indictment "must be read to include facts which are necessarily implied by the specific allegations made," United States v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002) (citation and internal quotation marks omitted), and the Court must accept all pertinent allegations in the indictment as true, Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n.16 (1952). See also United States v. Heicklen, 858 F. Supp. 2d 256, 261-63 (S.D.N.Y. 2012).
On August 5, 2012 Defendants were arrested by Djiboutian authorities after illegally crossing the border from Somalia into Djibouti on their way to Yemen, allegedly to join another designated foreign terrorist organization: al-Qaeda in the Arabian Peninsula. (ECF No. 153 at 17). Djiboutian authorities detained Defendants and Defendants allege that they were tortured by Djiboutian officials and subsequently questioned, while still in Djiboutian custody, by two separate FBI teams. (ECF Nos. 99-2, 100-1, 101-1.)
On October 18, 2012, a grand jury empaneled in the Eastern District of New York returned an indictment charging the defendants with crimes related to their provision of material assistance to al-Shabaab. (ECF No. 153 at 19.) In November 2012, Djiboutian officials turned Defendants over to the United States government, at which point they were brought to the United States for prosecution. (Id. at 17). On November 15, 2012, a grand jury returned a firstsuperseding indictment. (ECF No. 15.) On December 1, 2014, a grand jury returned a five-count second superseding indictment against Defendants. (ECF No. 138.) Count One charges Defendants with conspiring to provide material support to a foreign terrorist organization, to wit: al-Shabaab, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2339B(d). Count Two charges that Defendants, together with others, provided material support to al-Shabaab, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2339B(d). Count Three charges that Defendants, together with others, attempted to provide material support to al-Shabaab, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2339B(d). Count Four charges that Defendants Ahmed and Yusuf, together with others, received military-type training from al-Shabaab, in violation of 18 U.S.C. §§ 2339D(a) and 2339D(b). Finally, Count Five charges that Defendants, together with others, unlawfully used, carried, and possessed one or more firearms, including a machinegun, in relation to and in furtherance of the crimes of violence charged in Counts One through Four, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii) and 924(c)(1)(B)(ii). The Government alleges that Defendants brandished and discharged one or more of these firearms.
Defendants filed the instant motions to dismiss the indictment, raising various constitutional challenges and challenging the sufficiency and timeliness of the operative indictment. Defendants also (1) move for a bill of particulars, (2) move in limine for an order directing the government not to use the terms: "terrorist," "terrorist activity," or "terrorism," and (3) move for notice pursuant to Fed. R. Evid. 404(b)(2) of uncharged crimes about which the Government intends to offer evidence at trial. (ECF Nos. 129, 130, 131.)1 Defendants also renew their motions to suppress, for all purposes, statements made to FBI agents while in Djiboutian custody and related relief. (ECF Nos. 99, 100, 101, 103.)
While Defendants' motions were pending, the Government filed a superseding indictment. In response, Defendant Yusuf filed a supplemental motion to dismiss, addressing the counts added in the superseding indictment, moving: (1) to dismiss Count Three, which charges Defendants with attempting to provide material support to al-Shabbab on multiplicity grounds, or in the alternative, for an order requiring the Government to "elect between" Count Two, the substantive count, and Count Three, the attempt count, and (2) to strike aliases recited in the indictment. (ECF No. 147.)
On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law. On December 17, 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act ("IRTPA") which amended AEDPA. Three sections of these anti-terrorism statutes are at issue in Defendants' motions. Section 219 of the Immigration and Nationality Act, as amended by AEDPA, codified at 8 U.S.C. § 1189, empowers the Secretary of State to designate an organization as a "foreign terrorist organization" ("FTO"). 8 U.S.C. § 1189; P.L. 104-132, Apr. 24, 1996, 110 Stat 1214, Sec. 302. Section 2339B of Title 18, enacted by AEDPA, makes it a crime to provide "material support" and resources to an FTO. 18 U.S.C. § 2339B; P.L. 104-132, Apr. 24, 1996, 110 Stat 1214, Sec. 303. Section 2339D of Title 18, which was enacted by the IRTPA, makes it a crime to knowingly receive "military-type training" from or on behalf of an FTO. 18 U.S.C. § 2339D; PL 108-458, Dec. 17, 2004, 118 Stat 3761, Sec. 6602.
Under § 1189, the Secretary of State may designate an organization as an FTO if the Secretary finds: (1) that the organization is a foreign organization; (2) that the organization engages in terrorist activity; and (3) that the terrorist activity or terrorism of the organizationthreatens the security of United States nationals or the national security of the United States. 8 U.S.C. § 1189(a)(1)(A)-(C).
As amended, § 2339B imposes criminal liability, up to life in prison, upon "[w]hoever knowingly provides material support or resources to [an FTO], or attempts or conspires to do so." 18 U.S.C. § 2339B(a)(1). The term "material support or resources" includes, inter alia, "personnel (1 or more individuals who may be or include oneself)." 18 U.S.C. § 2339A(b)(1). As amended, § 2339D imposes criminal liability, up to 10 years imprisonment, upon "[w]hoever knowingly receives military-type training from or on behalf of any organization designated at the time of the training [as an FTO]." Both statutes include an identical mens rea requirement, which requires that a person who "knowingly provides material support or resources" to an FTO or "knowingly receives military-type training from or on behalf of" an FTO must also know that (1) "the organization is a designated [FTO] terrorist organization," (2) "the organization has engaged or engages in terrorist activity" as defined in 8 U.S.C. § 1182(a)(3)(B), or (3) "the organization has engaged or engages in terrorism" as defined in § 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989.2 18 U.S.C. §§ 2339B(a)(1), D(a). Both statutes also include an identical "extraterritorial jurisdiction" element, which provides a disjunctive list of circumstances under which the statute has extraterritorial reach, specifically, if:
18 U.S.C. §§ 2339B(d)(1) and D(b). A defendant in a criminal action under §§ 2339B and 2...
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