United States v. Al Kassar

• Decision Date: 21 September 2011
• Docket Number: Docket Nos. 09–1051–cr(L),09–1057–cr(Con),09–3972–cr(Con).
• Parties: UNITED STATES of America, Appellee, v. Monzer AL KASSAR a/k/a Abu Munawar a/k/a El Taous, Luis Felipe Moreno Godoy, Tareq Mousa Al Ghazi, Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

660 F.3d 108

UNITED STATES of America, Appellee,

v.Monzer AL KASSAR a/k/a Abu Munawar a/k/a El Taous, Luis Felipe Moreno Godoy, Tareq Mousa Al Ghazi, Defendants–Appellants.

Docket Nos. 09–1051–cr(L)

09–1057–cr(Con)

09–3972–cr(Con).

United States Court of Appeals, Second Circuit.

Argued: Feb. 7, 2011.Decided: Sept. 21, 2011.

Roger Lee Stavis, Gallet Dreyer & Berkey LLP, New York, NY, for Monzer al Kassar and Luis Felipe Moreno Godoy.

Marc Antony Agnifilo, Brafman & Associates, New York, NY, for Tareq Mousa al Ghazi.

Brendan R. McGuire (Boyd M. Johnson III, Jesse M. Furman, on brief), On Behalf of Preet Bharara U.S. Attorney's Office, Southern District of New York, New York, NY, for Appellee.Before: DENNIS JACOBS, Chief Judge, PETER W. HALL, Circuit Judge, SHIRA A. SCHEINDLIN, District Judge.^*DENNIS JACOBS, Chief Judge:

Defendants Monzer al Kassar, Luis Felipe Moreno Godoy, and Tareq Mousa al Ghazi appeal their criminal convictions, entered after jury trials in the United States District Court for the Southern District of New York (Rakoff, J.), for conspiring to kill U.S. officers, to acquire and export anti-aircraft missiles, and to knowingly provide material support to a terrorist organization. Al Kassar and Godoy were also convicted of conspiring to kill U.S. citizens and of money laundering. Defendants argue on appeal that federal subject-matter jurisdiction is lacking, that their due process rights were violated, that exculpatory evidence was excluded, and that the evidence of a conspiracy among them was legally insufficient. As to the conviction for conspiring to acquire and export anti-aircraft missiles, defendants argue that the statute does not criminalize conspiracy, that the jury was improperly instructed on the statute's scienter requirements, and that the defendants' conduct falls within the statute's exception for conduct authorized by the U.S. government. As to the conviction for conspiring to knowingly support a terrorist organization, defendants argue that the statute violates due process by not requiring that the support be intended to further specifically criminal activities.

Affirmed.

BACKGROUND

Since the 1970s, the U.S. government has suspected Monzer al Kassar, a Spanish national and resident, of illegal arms trafficking. United States v. Al Kassar, 582 F.Supp.2d 488, 491 (S.D.N.Y.2008) (“ Al Kassar I ”). In 2005, the Drug Enforcement Administration (“DEA”) set up a sting operation to apprehend him for selling arms illegally.

To this end, the DEA sent Samir Houchaimi, a confidential informant, to locate Tareq Mousa al Ghazi, a known associate of al Kassar, and set up a meeting with al Kassar. Houchaimi went to Lebanon, where al Ghazi lived, and won his trust over several months. Houchaimi told al Ghazi that he was in the weapons trade, asked to meet with al Kassar, and gave al Ghazi a fake end-user certificate ¹ for Nicaragua supplied by the DEA. Houchaimi asked al Ghazi to arrange a meeting with al Kassar, and al Ghazi agreed.

Al Kassar arrived at the arranged meeting in Beirut holding the end-user certificate Houchaimi had given to al Ghazi. The meeting was fruitful, ending with al Kassar inviting Houchaimi to his mansion in Spain to further discuss the Nicaraguan arms deal.

At the meeting in Spain (in February 2007), Houchaimi introduced al Kassar to “Carlos” and “Luis”—two undercover DEA agents posing as members of FARC (a left-wing Colombian terrorist organization)—and al Kassar introduced his associate, Luis Felipe Moreno Godoy. The DEA agents told al Kassar they were interested in buying weapons for FARC's use against the U.S. military in Colombia. They gave al Kassar a list of weapons they wanted, which included anti-aircraft missiles (“SAMs”). Al Kassar agreed to negotiate.

Over the next several months, in the presence of Godoy and al Ghazi, al Kassar negotiated an arms deal with the two DEA agents.² The negotiators discussed at length FARC's intent to use the weapons against Americans and U.S. assets. When al Kassar left the room during a break in negotiations, al Ghazi advised the DEA agents how to negotiate effectively with al Kassar. At the end of March, 2007, when the parties had agreed to basic terms (including the sale of SAMs), Godoy took the DEA agents to an Internet café and helped them transfer a down payment(€ 100,000) to a bank account controlledby al Kassar.

The next day (after confirming receipt of the down payment), al Kassar again met with the DEA agents to discuss details. Before the meeting, al Ghazi again counseled the DEA agents on how best to secure the sale. At the meeting—again in the presence of Godoy and al Ghazi—al Kassar gave the DEA agents schematics for the SAMs he was selling and explained how he planned to smuggle the weapons into Colombia through a cargo ship destined for Suriname (with al Kassar, as usual, translating for al Ghazi).

In May 2007, al Kassar and Godoy facilitated a meeting between the DEA agents and the captain of the ship that would smuggle the weapons. Before the meeting, the DEA agents wired another payment ($135,000) to a bank account controlled by al Kassar. Afterward, al Kassar and Godoy visited arms factories in Bulgaria and Romania to secure the weapons.

In June 2007, the DEA agents agreed to meet al Kassar and Godoy in Bucharest to make final payment. Al Kassar stayed in Spain, however, and sent Godoy and al Ghazi to pick up the money. Pursuant to valid arrest warrants and in coordination with the DEA, Romanian authorities arrested al Ghazi and Godoy in Bucharest. The same day, Spanish authorities arrested al Kassar at the Madrid International Airport; he was carrying fake end-user certificates for the FARC weapons and documents confirming final arrangements to ship the weapons from Romania to Suriname. A search of al Kassar's mansion yielded documents establishing his and Godoy's participation in other arms deals and confirming that al Kassar controlled the bank accounts into which the DEA agents had wired money.

Godoy and al Ghazi were extradited here from Romania in October 2007. During the flight, al Ghazi agreed to waive his Miranda rights and admitted to the DEA agents that: (1) he knew al Kassar was selling weapons, including SAMs, to FARC; (2) he knew that FARC was a terrorist organization, which planned to use the weapons to kill Americans; and (3) he facilitated the deal because he was promised a € 125,000 commission. In June 2008, al Kassar was extradited here from Spain.

Once in the United States, the defendants were indicted on four counts:

[1] Conspiracy to kill U.S. citizens in violation of 18 U.S.C. § 2332(b).

[2] Conspiracy to kill U.S. officers and/or employees in violation of 18 U.S.C. §§ 1114, 1117.

[3] Conspiracy to acquire and export SAMs in violation of 18 U.S.C. § 2332g.

[4] Conspiracy to provide material support to a known terrorist organization in violation of 18 U.S.C. § 2339B.

Al Kassar and Godoy were also indicted on a fifth count:

[5] Money laundering in violation of 18 U.S.C. § 1956.

The district court denied defendants' motion to dismiss the indictments for violation of due process. Al Kassar I, 582 F.Supp.2d at 498. The district court likewise denied their motions (after hearings) to admit classified information related to prior and contemporaneous interactions with Spanish intelligence agents, allegedly for the benefit of the United States. United States v. Al Kassar, 582 F.Supp.2d 498, 500 (S.D.N.Y.2008) (“ Al Kassar II ”). The district court concluded that the proffered classified information was irrelevant, needlessly confusing, or inadmissible prior acts evidence. Fed.R.Evid. 402–405.

Al Ghazi's trial was severed when he was hospitalized a week before the scheduled trial. Al Kassar and Godoy were convicted by a jury on all five counts. Al Ghazi was tried several months later and convicted of conspiring to kill U.S. officials, to acquire and export SAMs, and to provide material support to a known terrorist organization. Al Ghazi was acquitted of conspiring to kill U.S. citizens. Al Kassar and Godoy were sentenced in February 2009 to 30 years and 25 years respectively. Al Ghazi was sentenced in July 2009 to 25 years.

The defendants timely appealed their convictions, but do not contest the sentences.

DISCUSSION

On appeal, the defendants challenge their convictions on the following grounds:

[I] The government lacked jurisdiction to prosecute because of an insufficient nexus between their actions and the United States.

[II] The government's investigation constituted “outrageous conduct” in violation of their due process rights.

[III] The district court erred in denying their motion to introduce exculpatory classified evidence.

[IV] The convictions under 18 U.S.C. § 2332g (acquiring and exporting SAMs) must be overturned because: the statute does not criminalize conspiracy; the jury was improperly instructed as to scienter; the defendants' actions fall under the statute's exception for authorized conduct; and there was insufficient evidence of conspiracy.

[V] The convictions under 18 U.S.C. § 2339B (aiding a known terrorist organization) must be overturned because: the statute requires that the aid be intended to support the illegal activities of the terrorist organization, or, in the alternative, the statute violates the Fifth Amendment's Due Process Clause by not requiring such intent.

Al Ghazi challenges his conviction on a sixth ground:

[VI] There was insufficient evidence he conspired with al Kassar or Godoy to kill U.S. officers and materially aid a known terrorist organization.

The Sections in this opinion correspond to these arguments.

I

The defendants argue that federal subject-matter jurisdiction is lacking because: First, there is an insufficient nexus between their conduct and the United States for U.S. law to apply to them; second, any nexus that does exist was created by the DEA agents, not the defendants.

A

In a challenge to subject-matter jurisdiction, we re...