United States v. Ibrahim

Decision Date15 February 2013
Docket NumberNo. CR 11-811 EMC (DMR),CR 11-811 EMC (DMR)
PartiesUNITED STATES, Plaintiff(s), v. HASAN IBRAHIM and MEDCHEM CORP., Defendant(s).
CourtU.S. District Court — Northern District of California
ORDER RE DEFENDANTS' MOTION
TO COMPEL DISCOVERY ON
SELECTIVE PROSECUTION

Before the court is the parties' joint discovery letter of February 8, 2013. [Docket No. 65.] The present dispute concerns Defendants Hasan Ibrahim and MedChem Corporation's request for discovery on selective prosecution. The court held a hearing on February 15, 2013. For the reasons set forth below, the court denies the motion.

I. Background

Defendant Ibrahim, a Muslim of Palestinian origin, was the owner and president of Defendant MedChem Corporation. MedChem exported chemicals, including hazardous materials, medical equipment, and diagnostics, to Constant Trading Activity ("CTA"), a business in Saudi Arabia. Ibrahim and MedChem are charged with several criminal offenses, including attemptedplacement of destructive substances on an aircraft, 18 U.S.C. § 32(a)(2) and (8);1 transportation of hazardous materials without shipping papers, 49 U.S.C. § 5124(c) and (d);2 failure to file export information, 13 U.S.C. § 305; and attempt to smuggle goods, 18 U.S.C. § 554(a).3 (See generally Superseding Indictment.) Specifically, the section 32(a) counts allege that Defendants "willfully attempt[ed] to cause to be placed in, upon, and in proximity to a civil aircraft used, operated, and employed in foreign air commerce, a destructive substance . . . , and otherwise cause[d] such aircraft to be made hazardous to use, likely endangering the safety of such aircraft." (Superseding Indictment ¶ 21.) The section 5124 counts allege that Defendants "willfully and recklessly offered for transportation hazardous materials . . . without shipping papers describing those materials, in violation of 49 C.F.R. §§ 172.101, 172.200, 172.202, and 172.204," and that they "willfully and recklessly offered for transportation hazardous materials in packages . . . without labeling the packages, in violation of 49 C.F.R. § 172.40." (Superceding Indictment ¶¶ 23, 25.)

II. Defendants' Contentions

Defendants claim that the government has selectively prosecuted Ibrahim, as well as his business, MedChem, "because [Ibrahim] is a Muslim . . . and is of Palestinian origin." [Docket No. 65 at 3.] Defendants present several arguments to support this claim and obtain discovery. First, they contend that reported cases do not disclose a single case in which a shipper similarly situated to Defendants was prosecuted for violations of sections 32(a) or 5124. Defendants also argue that the Federal Aviation Administration ("FAA") regularly resolves hazardous shipping regulation violations administratively, rather than through criminal prosecution. Finally, Defendants point to the FBI's July 2010 interview with Ibrahim. Defendants argue that the agents' line of inquiry dwelt for a significant period on Ibrahim's place of birth, religious activities, affiliations, and political beliefs, thus demonstrating that the government has targeted Ibrahim based on his national origin and religion. [Docket No. 65 at 8-10.]

III. Legal Standard

The government has "broad discretion" when deciding whom to prosecute. Wayte v. United States, 470 U.S. 598, 607 (1985) (citations and quotation marks omitted). As long as a prosecutor has probable cause to believe that the accused committed an offense defined by statute, "the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Id. (citation and quotation marks omitted). A "presumption of regularity" buttresses prosecutorial decisions, and "in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." United States v. Armstrong, 517 U.S. 456, 464 (1996) (citation and quotation marks omitted).

Nevertheless, prosecutorial powers are subject to constitutional constraints. Wayte, 407 U.S. at 608 (citation and quotation marks omitted). One of these constraints arises from the equal protection component of the Due Process Clause of the Fifth Amendment, Armstrong, 517 U.S. at 464 (citation and quotation marks omitted), which mandates that "the decision to prosecute may not be "'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,"'" including "the exercise of protected statutory and constitutional rights." Wayte, 407 U.S. at 608 (citation omitted) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962))); accord Armstrong, 517 U.S. at 464.

The requirements for a selective prosecution claim derive from "ordinary equal protection standards." Armstrong, 517 U.S. at 465 (citation and quotation marks omitted). The claimant must demonstrate that "the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose." Id. (citations and quotation marks omitted). "[D]iscriminatory purpose" means that the prosecutor "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Wayte, 470 U.S. at 610 (brackets in original) (citation and quotation marks omitted).

To obtain discovery regarding selective prosecution, a defendant must "produce some evidence that similarly situated defendants outside of [their national origin or religious group] could have been prosecuted, but were not." Armstrong, 517 U.S. at 469. This standard "is a 'rigorous' one." United States v. Arenas-Ortiz, 339 F.3d 1066, 1068 (9th Cir. 2003) (quoting Armstrong, 517 U.S. at 468); cf. id. at 1071 ("Merely demonstrating that better evidence cannot be obtained without discovery does not suddenly render otherwise insufficient evidence sufficient."). Thus, in the present case, to obtain the requested discovery, Defendants must show that non-Arab or non-Muslim individuals, or entities associated with them, were not prosecuted under 18 U.S.C. § 32(a) or 49 U.S.C. § 5124, even though they could have been. See Lacey v. Maricopa Cnty.,649 F.3d 1118, 1134 (9th Cir. 2011); United States v. Arenas-Ortiz, 339 F.3d at 1068. If Defendants meet this burden, the government "must assemble from its own files documents which might corroborate or refute" their selective prosecution claim. Armstrong, 517 U.S. at 468.

IV. Discussion

Defendants direct the court to a handful of cases to support their contention that the government has engaged in selective prosecution in its section 32(a) and 5124 counts. [Docket No. 65 at 4-7 (citing United States v. Mena, 933 F.2d 19 (1st Cir. 1991); United States v. Bradley, 540 F. Supp. 690, 692 (D. Md. 1982); United States v. Yousef, 327 F.3d 56 (2d Cir. 2003); United States v. Evertson, No. A 05-63 CR, (D. Alaska 2005); United States v. Sabretech, 271 F.3d 1018 (11th Cir. 2001); United States v. Shearer, 479 F.3d 478 (7th Cir. 2007); United States v. Silesia Flavorings, Inc., No. 03 CR 851 (N.D. Ill. 2004)).] In United States v. Mena, Edward Ramon Mena was prosecuted for and convicted of violating section 32(a) after hijacking a passenger plane and threatening to detonate a bomb if the pilot did not divert the plane to Cuba. 933 F.2d at 22-23. InUnited States v. Bradley, the government prosecuted Martin Thomas Bradley under section 32(a) because he placed a bomb in his wife's suitcase before she boarded a plane. 540 F. Supp. at 691. In United States v. Yousef, Ramzi Yousef was convicted pursuant to section 32(a) for, inter alia, conspiring to place bombs on United States airliners. 327 F.3d at 77-80. In United States v. Evertson, Krister Sven Evertson was prosecuted for violating section 5124 after allegedly shipping sodium metal to another individual via UPS ground service.4 See Everston Trial Br. at 2, Evertson, 2006 WL 4791758. In United States v. Sabretech, Sabretech, Inc. was prosecuted for violating sections 32(a) and 5124 for willfully placing destructive devices on the plane and willfully failing to train its employees in accordance with hazardous materials regulations, respectively, after its employees placed old oxygen generators on a commercial airliner. 271 F.3d at 1020-21. In United States v. Shearer, Kenneth Shearer was prosecuted and convicted under section 5124 for tampering with a marking, label, and placard required on display fireworks. 479 F.3d at 481.5 Finally, in United States v. Silesia Flavorings, Inc., the company and two if its employees, Ortwin Winter and Juan Carlos Rodas-Misa, were prosecuted pursuant to section 5124 for conspiring to transport by aircraft certain flammable liquid flavoring extracts without proper declarations, packaging, markings, and labeling. 2004 WL 419904, at *1 (N.D. Ill. Mar. 1, 2004).

Defendants do not clearly explain the import of these cases. [Docket No. 65 at 4-7.] The court assumes that Defendants cite them to make two points. First, Defendants appear to argue that because the government rarely prosecutes cases under sections 32(a) and 5124, their prosecution of Defendants must therefore be selective. Such an argument is inapposite. Infrequent prosecution does not demonstrate that Defendants were selected for prosecution on the basis of religion or national origin.

Second, Defendants argue that their case - prosecution under both section 32(a) and 5124 "for shipping materials in the ordinary course of business" - is out of step with other prosecutions. [Docket No. 65 at 5.] These cases do not illustrate that point. Defendants' attempts to compare and contrast themselves with these cases do not bear up under scrutiny. Although Defendants argue that the failure to prosecute Everston and Shearer under section 32(a) suggests selective prosecution here, it is quite possible that the defendants in those cases could not have been prosecuted under section 32(a)...

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