United States v. Aossey

• Decision Date: 25 August 2015
• Docket Number: No. 14-CR-138-LRR,14-CR-138-LRR
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JALEL AOSSEY; YAHYA NASSER AOSSEY; MIDAMAR CORPORATION; ISLAMIC SERVICES OF AMERICA; & ISA, INC., d/b/a Islamic Services of America, Inc., Defendants.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff, v. JALEL AOSSEY; YAHYA NASSER AOSSEY; MIDAMAR CORPORATION;ISLAMIC SERVICES OF AMERICA; & ISA, INC.,d/b/a Islamic Services of America, Inc., Defendants.

No. 14-CR-138-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

August 25, 2015

ORDER

TABLE OF CONTENTS

I. INTRODUCTION ....................................... 2

II. RELEVANT PROCEDURAL HISTORY ......................... 2

III. ANALYSIS ............................................ 3

A. Establishment Clause ................................. 5

1. Parties' arguments .............................. 5

2. Applicable law ................................. 5

3. Application ................................... 8

B. Free Exercise Clause ................................ 10

C. Secretary of Agriculture .............................. 12

D. Notice of Violations ................................. 16

E. Loss of Property ................................... 18

F. Vagueness ....................................... 21

G. Surplusage ....................................... 21

IV. CONCLUSION ....................................... 23

I. INTRODUCTION

The matters before the court are Defendants Islamic Services of America and ISA, Inc.'s "Motion to Dismiss Portions of Count 1 and Counts 5-92" (docket no. 56); Defendants Islamic Services of America and Midamar Corporation's "Joint Motion to Dismiss Portions of Count 1 and Counts 2-4" (docket no. 72); and Defendants Midamar Corporation, Jalel Aossey and Yahya Nasser Aossey's "Second Joint Motion to Dismiss" (docket no. 73) (collectively, "Motions").

II. RELEVANT PROCEDURAL HISTORY

On December 5, 2014, a grand jury returned a 92 count Indictment (docket no. 6) charging Defendants with: (1) conspiracy in violation of 18 U.S.C. § 371 (Count 1); (2) making false statements on export certificates in violation of 21 U.S.C. § 611 (Counts 2-4); (3) wire fraud in violation of 18 U.S.C. § 1343 (Counts 5-47); money laundering in violation of 18 U.S.C. § 1956(a)(2)(A) (Counts 48-91); and money laundering conspiracy in violation of 18 U.S.C. § 1956(h) (Count 92). The wire fraud and money laundering counts contain forfeiture allegations.

On June 5, 2015, Defendants Islamic Services of America and ISA, Inc. filed the Motion to Dismiss Portions of Count 1 and Counts 5-92. On June 8, 2015, Midamar Corporation and Jalel Aossey joined in the Motion to Dismiss Portions of Count 1 and Counts 5-92. See Joinder in Motion (docket no. 60). On June 23, 2015, Midamar Corporation and Yahya Aossey joined in the Motion to Dismiss Portions of Count 1 and Counts 5-92. See Joinder in Motion (docket no. 68). On June 30, 2015, Defendants Islamic Services of America and Midamar Corporation filed the Joint Motion to Dismiss Portions of Count 1 and Counts 2-4. Also on June 30, 2015, Defendants Midamar Corporation, Jalel Aossey and Yahya Aossey filed the Second Joint Motion to Dismiss. On July 1, 2015, Midamar Corporation and Yahya Aossey joined in the Joint Motion to Dismiss. See Joinder in Motion (docket no. 76). On July 20, 2015, Islamic Services ofAmerica joined in the Second Joint Motion to Dismiss. See Joinder in Motion (docket no. 81). On July 20, 2015, the government filed a Resistance to the Joint Motion to Dismiss Portions of Count 1 and Counts 2-4 and Second Joint Motion to Dismiss (docket no. 83). On July 21, 2015, the government filed a Resistance to the Motion to Dismiss Portions of Count 1 and Counts 5-92 (docket no. 85). On July 24, 2015, Midamar Corporation, Jalel Aossey and Yahya Aossey filed a Reply to the Second Joint Motion to Dismiss (docket no. 86). On July 27, 2015, Islamic Services of America filed Replies to the government's Resistances (docket nos. 88-89). On August 14, 2015, the court held a hearing on the Motions. See August 14, 2015 Minute Entry (docket no. 94). The Motions are fully submitted and ready for decision.

III. ANALYSIS

As an initial matter, the overlap among the various defense counsel and Defendants has considerably muddied the record. However, it appears that all Defendants have joined all the Motions. The court will therefore consider all the Motions at once. Defendants seek to dismiss the Indictment because: (1) it violates the Establishment Clause of the First Amendment; (2) it violates the Free Exercise Clause of the First Amendment; (3) the Secretary of Agriculture has exclusive jurisdiction to enforce alleged violations of 21 U.S.C. §§ 610-611; (4) the government did not provide Defendants with the required notice of alleged violations; (5) it fails to allege a loss of property as required by the wire fraud statute; and (6) 21 U.S.C. § 607(e) is unconstitutionally vague. The Motions further request that the court strike portions of the Indictment as surplusage. The government resists all of Defendants' arguments.

With respect to arguments (1)-(4), Defendants contend that the Indictment must be dismissed for lack of jurisdiction pursuant to Federal Rule of Criminal Procedure12(b)(2).¹ "The district courts of the United States shall have original jurisdiction . . . of all offenses against the laws of the United States." 18 U.S.C. § 3231. 18 U.S.C. § 3231's broad jurisdictional grant refers to "the court's statutory or constitutional power to adjudicate the case." United States v. White Horse, 316 F.3d 769, 772 (8th Cir. 2003) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)) (internal quotation marks omitted). The district court's power to adjudicate the case is independent from the particular allegations supporting a charged offense within the Indictment. Cotton, 535 U.S. at 630-31 (stating that "a district court has jurisdiction of all crimes cognizable under the authority of the United States," and a defective indictment "does not affect the jurisdiction of the trial court"); see also Camp v. United States, 587 F.2d 397, 399 (8th Cir. 1978) (noting that jurisdictional questions revolve around the "type of case" only, and that while "it is conceivable" that the violation of a right could affect jurisdiction, the Supreme Court has upheld district court jurisdiction even where constitutional violations were proven) (citing McMann v. Richardson, 397 U.S. 742 (1970)).

Concerning arguments (5)-(6), Defendants contend that the Indictment must be dismissed for failure to state an offense pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v).

An indictment adequately states an offense if: it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, andalleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.

United States v. Beasley, 688 F.3d 523, 532 (8th Cir. 2012) (quoting United States v. Hayes, 574 F.3d 460, 472 (8th Cir. 2009)). To be sufficient, "[a]n indictment need not use the specific words of the statute, so long as by fair implication it alleges an offense recognized by law." United States v. Villarreal, 707 F.3d 942, 957 (8th Cir. 2013) (quoting United States v. Pennington, 168 F.3d 1060, 1065 (8th Cir. 1999)) (internal quotation marks omitted). "[F]ederal criminal procedure does not 'provide for a pre-trial determination of sufficiency of the evidence.'" United States v. Ferro, 252 F.3d 964, 968 (8th Cir. 2001) (quoting United States v. Critzer, 951 F.2d 306, 307-08 (11th Cir. 1992)).

A. Establishment Clause

1. Parties' arguments

Defendants argue that "the government's attempt to mandate truthful statements in foreign export documents regarding Halal slaughter is prohibited by the Establishment Clause." Brief in Support of the Motion to Dismiss Portions of Count 1 and Counts 5-92 (docket no. 56-1) at 24. The government argues that "[t]he mere fact [D]efendants' false and fraudulent statements, representations, documents, and certificates happen to concern, or even touch upon, religion or religious matters or beliefs does not" cause the Indictment to violate the Establishment Clause. Government Resistance (docket no. 85) at 28-29.

2. Applicable law

The First Amendment to the United States Constitution provides, in relevant part that: "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. The parties agree that the test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971) applies to Establishment Clause claims. But see Roark v. South Iron R-1 Sch.Dist., 573 F.3d 556, 563 n.4 (8th Cir. 2009) ("The Lemon test may be better suited to cases challenging statutes and policies, rather than specific government actions."). The Lemon test states that a government action does not violate the Establishment Clause "so long as it: (1) has a secular legislative purpose, (2) neither advances nor inhibits religion in its principal or primary effect, and (3) does not foster an excessive government entanglement with religion." United States v. Corum, 362 F.3d 489, 495 (8th Cir. 2004) (citing Lemon, 403 U.S. at 612-13).

The Second Circuit Court of Appeals applied the Lemon test in two cases challenging the State of New York's kosher fraud statutes. In Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir. 2002) (hereinafter "Commack I"), the Second Circuit found that the kosher fraud statutes violated the Establishment Clause because they had a primary effect of advancing and inhibiting religion and created an excessive government entanglement with religion. Commack I, 294 F.3d at 425. The New York statutes "define[d] 'kosher' as 'prepared in accordance with orthodox Hebrew religious requirements,' mandate[d] adherence to those requirements, or [were] integral to the State's enforcement of such requirements." Id. at 423. The Second Circuit held that the statutes required the...