United States v. Elshinawy

• Decision Date: 16 December 2016
• Docket Number: Criminal No. ELH–16–0009
• Citation: 228 F.Supp.3d 520
• Parties: UNITED STATES of America, Plaintiff, v. Mohamed ELSHINAWY, Defendant.
• Court: U.S. District Court — District of Maryland

228 F.Supp.3d 520

UNITED STATES of America, Plaintiff,

v.Mohamed ELSHINAWY, Defendant.

Criminal No. ELH–16–0009

United States District Court, D. Maryland.

Signed December 16, 2016

As Amended March 6, 2017

Christine Manuelian, Office of the United States Attorney, Baltimore, MD, for Plaintiff.

Chelsea J. Crawford, Joshua R. Treem, Brown Goldstein & Levy LLP, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

Ellen L. Hollander, United States District Judge

Mohamed Elshinawy, a United States citizen of Egyptian descent, was arrested in Maryland on December 11, 2015, and indicted about a month later, on January 13, 2016. ECF 19. The Indictment, which contains four counts, charges defendant, inter alia , with conspiracy to provide and with providing material support, in the form of personnel, services (including means and methods of communication), and financial services, to a designated foreign terrorist organization, in violation of 18 U.S.C. §§ 2339B(a)(1) ; 2339B(d)(1)(A), (D), (E), and (F). That foreign terrorist organization is ISIS (Islamic State of Iraq and al-Sham or the Islamic State of Iraq and Syria), also known as ISIL (Islamic State of Iraq and the Levant). ECF 19.

In particular, Count One charges conspiracy from in or about February 2015 to December 11, 2015, and Count Two charges the substantive offense of providing material support. In Count Three, Elshinawy is charged with the willful collection of funds, "directly and indirectly, with the knowledge that they were to be used, in full or in part, to carry out a terrorist act....", in violation of 18 U.S.C. §§ 2339C(a)(1)(B) ; 2339C(a)(3).¹ And, Count Four charges the defendant with knowingly and willfully making materially false statements to agents of the Federal Bureau of Investigation ("FBI") in July 2015, in violation of 18 U.S.C. § 1001(a)(2).

Defendant has moved to dismiss the Indictment (ECF 51), supported by a memorandum. ECF 51–1 (collectively, "Motion to Dismiss"). In addition, he has filed a Motion to Sever Count Four of the Indictment (ECF 52), along with a memorandum. ECF 52–1 (collectively, "Motion to Sever"). The government has filed a consolidated opposition (ECF 66, "Opposition"), to which defendant has replied. ECF 79 ("Reply").²

The Court held a motions hearing on November 10, 2016, at which argument was presented concerning the Motion to Dismiss. Defendant submitted on the Motion to Sever. For the reasons that follow, I shall deny both motions.

I. Summary of Allegations

Count One, the conspiracy count,³ alleges that defendant is a United States citizen of Egyptian descent. ECF 19, ¶ 2. Beginning in or about February 2015 and continuing until on or about December 11, 2015, defendant allegedly conspired with "Coconspirator # 1" and others "to knowingly provide material support or resources" to ISIL. Id. ¶ 4. Coconspirator # 1 is an Egyptian national who resides overseas and is defendant's childhood friend. Id. ¶ 3. Coconspirator # 1 stated that he is a member of ISIL. ECF 19, ¶ 36.

The Indictment further alleges that on February 17, 2015, during a discussion with Coconspirator # 1 through social media, defendant "pledged his allegiance to ISIL ... [and] asked Coconspirator # 1 to convey his message of loyalty to ISIL leadership...." Id. ¶ 10. In addition, defendant "committed himself to committing violent jihad."⁴ Id. Defendant "acknowledged that committing [a terrorist] attack would be a crime in the United States." Id. The Indictment also alleges that, as part of the conspiracy, defendant and others used " 'pay as you go' " cellular phones. ECF 19, ¶ 5. And, the Indictment alleges that, as part of the conspiracy, defendant used financial accounts and services to transfer funds to the United States "from overseas ... to conduct a terrorist attack...." Id. ¶ 6.

The defendant's brother allegedly resides in Saudi Arabia. ECF 66 at 7. In a discussion over social media on March 11, 2015, between defendant and an individual believed to be defendant's brother, defendant encouraged his brother to join ISIL and expressed, among other things, his own desire to "become a mujahideen...." ECF 19, ¶ 11.⁵

According to the Indictment, on March 23, 2015, defendant received, through a transfer of funds from a company headquartered overseas (the "Overseas Company"), the sum of approximately $1,500, which he deposited to his online financial account, to be used to conduct a terrorist attack on behalf of ISIL. Id. ¶ 13. Defendant purchased a new cellular phone a few days later, on March 28, 2015, to further his communications with Coconspirator # 1 and other ISIL operatives." Id. ¶ 14. Defendant registered the phone on April 2, 2015, under the name " 'Black Eyes,' " using the address " 'earth planet, Aberdeen, Maryland' ...." Id. ¶ 15.⁶

According to the Indictment, defendant received another transfer of funds from the Overseas Company into his financial account on April 16, 2015, in the approximate sum of $1,000. Id. ¶ 17. Again, it was "to be used to conduct a terrorist attack on behalf of ISIL." Id.

During a conversation over social media on April 22, 2015, defendant and Coconspirator # 1 allegedly discussed defendant's "plans to obtain or make some sort of explosive device." Id. ¶ 18. Shortly thereafter, on April 25, 2015, Coconspirator # 1 told defendant "to provide him with an unattributable phone number in order to enable covert communication with ISIL operatives."Id. ¶ 19. Then, on April 27, 2015, defendant again encouraged an individual, believed to be his brother, to join ISIL. Id. ¶ 20.

Defendant received another transfer of funds through the Overseas Company on May 1, 2015, in the sum of about $1,000, again to be used to conduct a terrorist attack on behalf of ISIL. Id. ¶ 21. Defendant reiterated his commitment to ISIL during a discussion with Coconspirator # 1 on May 2, 2015. Id. ¶ 22. Then, on May 14, 2015, defendant received a transfer of funds from the Overseas Company, in the approximate amount of $3,000. Id. ¶ 23. Elshinaway told his brother on May 25, 2015, of his desire to "die as a martyr." Id. ¶ 24. Defendant received another transfer of funds on June 7, 2015, in the amount of $1,200, to be used to conduct a terrorist attack. Id. ¶ 26. On June 25, 2015, via social media, Coconspirator # 1 attempted to recruit an individual to join ISIL. Id. ¶ 27. Then, on June 28, 2016, defendant received a wire transfer from an individual located in Egypt, in the approximate amount of $1,000. Id. ¶ 28.

On July 17, 2015, Elshinaway allegedly made several false statements to agents of the FBI. See ECF 19, ¶ 29; see also ECF 66 at 2. For example, defendant told agents of the FBI that he only received a total of $4,000 from an overseas ISIL operative. ECF 19, ¶ 29. During a second interview with FBI agents on July 20, 2016, defendant amended his earlier statement and claimed that he had received no more than $5,200 from an ISIL operative. Id. ¶ 31. In fact, he had received over $8,000. Id.⁷

In its Opposition, the government asserts that a review of bank and business records indicate that the defendant spent at least $1,350 of the money in question to purchase communication devices, such as phones, calling cards, a laptop computer, a hotspot for internet access, and a virtual private network. ECF 66 at 5. About $3,000 was converted into cash and is not traceable. And, a portion of the funds was used by defendant for personal expenses. Id.

Further, the government maintains that, during the FBI interview on July 17, 2015, defendant consented to a search of his Dell and HP laptop computers. Id. at 6. However, forensic analysts were unable to obtain information from defendant's HP laptop because the hard drive had been damaged. Id. Moreover, as to the HP laptop, defendant used a thumb drive with a type of operating system that does not permit storage of information on the computer. Id.

The government also alleges in its Opposition that a search of defendant's residence on December 11, 2015, disclosed a large box containing numerous newspaper articles reporting on ISIL, including a recent bombing and FBI terrorism investigations. Id. at 10. Although defendant had denied ever having seen photos of an attack on the Italian Consulate in Cairo, Egypt on July 11, 2015, forensic analysis of his Dell laptop revealed several pictures documenting damage to the Italian Consulate. ECF 66 at 6. Also, forensic analysis revealed that the defendant used multiple email accounts, in some instances utilizing pseudonyms. Id. at 6–7. And, "the login IP addresses for Coconspirator # 1 .... resolved to proxy servers located in Europe and Africa, fixed locations in Turkey near the Iraq/Syria border, or locations inside of Iraq." Id. at 8.

II. The Material Support Statute

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") "in an effort to eradicate fundraising in the United States for foreign terrorist organizations." United States v. Warsame , 537 F.Supp.2d 1005, 1010 (D. Minn. 2008) ; see Pub. L. No. 104–132, 110 Stat. 1214 (April 24, 1996). As the Warsame Court explained, 537 F.Supp.2d at 1010, Congress recognized "the increasing sophistication of terrorist organizations, which often raise money for international terrorism under the guise of humanitarian or political causes[.]" Therefore, "Congress criminalized the provision of material support or resources to foreign terrorist organizations that are designated by the Secretary of State." Id.

Conspiracy to provide material support to terrorists became a crime in October of 2001. United States v. Kahn , 461 F.3d 477, 489 (4th Cir. 2006). Until that time, the offense "was a substantive crime only." Id.

In 2001, Congress amended the definition of "material support or resources." Holder v. Humanitarian Law Project , 561 U.S. 1, 11, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). It added to the statute the term "expert advice or assistance." Id. (citing Uniting and Strengthening America by Providing Appropriate Tools...