United States v. Minh Quang Pham
| Docket Number | 12-cr-423 (AJN) |
| Decision Date | 01 April 2022 |
| Parties | United States of America v. Minh Quang Pham, Defendant. |
| Court | U.S. District Court — Southern District of New York |
The Defendant Minh Quang Pham on January 8, 2016, pled guilty to two terrorism offenses and to using a firearm in relation to a crime of violence. This Court subsequently sentenced Pham to 480 months' imprisonment, which included a mandatory 360 months for the firearm offense. Following the terms of the Government's plea agreement, the Court then dismissed the two remaining terrorism charges against Pham. In 2020 Pham and the Government agreed that the Supreme Court's intervening decision in United States v. Davis required the Court to vacate Pham's firearms charge. With the consent of both parties, the Court on September 24, 2020 vacated Pham's all three guilty pleas, vacated the dismissal of the two other terrorism charges, and nullified the plea agreement.
The Government filed a superseding indictment against Pham on April 8, 2021, which contains the four original terrorism charges, Counts 1 through 4, and five new charges, Counts 5 through 9, arising from a suicide bombing that Pham allegedly attempted in 2011. Pham does not currently contest Counts 1 through 4, but moves to dismiss Counts 5 through 9, arguing that they are barred by the statute of limitations, are the product of an impermissible vindictive prosecution, and violate the rule of specialty that governs extradition from the United Kingdom. For the reasons that follow, the Court DENIES Pham's motion as to all terrorism charges Counts 5 through 8, but GRANTS Pham's motion to dismiss as to Count 9 because it was filed well past the applicable 5-year statute of limitations and because the plea agreement that waived the statute-of-limitations defense was nullified with the Government's consent. The Court further DENIES Pham's request that the Government go beyond its obligations under Rule 5(f) and Brady and affirmatively identify exculpatory information in the discovery it has produced.
In evaluating a motion to dismiss, the Court “accept[s] as true all of the allegations of the indictment.” United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985). The following facts are drawn from the superseding indictment filed April 8, 2021. S1 Indictment, Dkt. No. 202.
In or about December 2010, Defendant Minh Quang Pham travelled from the United Kingdom to Yemen and, while in Yemen, associated with al Qa'ida in the Arabian Peninsula (“AQAP”), which the United States designates as a foreign terrorist organization. Pham agreed with others to provide, and actually did provide, material support and his personal services to AQAP. This support included the production of online propaganda. Further, while in Yemen, Pham agreed to receive, and actually did receive, military-type training from and on behalf of AQAP.
Additionally, in 2011, Pham received instructions to conduct a suicide bombing at Heathrow International Airport, in the United Kingdom, with the intent of targeting U.S. nationals. Pham constructed and detonated an explosive device as a test of the design he would use to carry out this planned attack. In July 2011, Pham travelled to the United Kingdom to carry out the attack, but he did not complete it.
A grand jury originally returned an indictment charging Pham with five counts: (1) conspiracy to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B; (2) providing and attempting to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B; (3) conspiracy to receive military-type training from a foreign terrorist organization, in violation of 18 U.S.C. § 2339D; (4) receipt of militarytype training from a foreign terrorist organization, in violation of 18 U.S.C. § 2339D; and (5) possessing, carrying, and using a firearm during and in relation to Count 4, in violation of 18 U.S.C. § 924(c). Dkt. No. 3.
On February 26, 2015, Pham was extradited from the United Kingdom to the United States to face the above charges. On January 8, 2016, Pham pled guilty before this Court to Counts 2, 3, and 5, pursuant to a plea agreement. See Dkt. No. 184-1 (“Plea Agreement”); Plea Hearing Tr., Dkt. No. 88. Relevant here, the agreement included a statute-of-limitations waiver that states:
It is further agreed that should the conviction following the defendant's pleas of guilty pursuant to this Agreement be vacated for any reason, then any prosecution that is not time-barred by the applicable statute of limitations on the date of the signing of this agreement (including any counts that the Government has agreed to dismiss at sentencing pursuant to this Agreement) may be commenced or reinstated against the defendant, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement or reinstatement of such prosecution. It is the intent of this Agreement to waive all defenses based on the statute of limitations with respect to any prosecution that is not time-barred on the date that this Agreement is signed.
This Court on May 27, 2016, sentenced Pham to 480 months' imprisonment, which included the 360 months' imprisonment for Count 5 that was required to run consecutively with the other charges. Sentencing Tr., Dkt. No. 130; Judgment, Dkt. No. 121. Pursuant to the plea agreement, the Court dismissed Counts 1 and 4. Sentencing Tr. at 56. Though the plea agreement included a waiver of Pham's right to appeal, he noticed an appeal of his conviction and sentence. Dkt. No. 132. The Second Circuit granted Pham's appellate counsel's motion to withdraw under Anders v. California, 386 U.S. 738 (1967), and summarily affirmed Pham's conviction and sentence. Dkt. No. 134.
On August 21, 2018, the Court notified the parties that it had received a letter from Pham that questioned his conviction under § 924(c) in light of the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Dkt. Nos. 135, 137. The Court construed the letter as a motion to vacate his sentence under 28 U.S.C. § 2255. Dkt. No. 137. Following the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019), the parties engaged in plea discussions. On July 17, 2020, the parties informed the Court that “further plea discussions are not likely to result in a pretrial disposition” of the case and the Government noticed its intent to “reinstate charges that were dismissed at sentencing.” Dkt. No. 181. In a letter dated August 14, 2020, the Government proposed that the Court grant Pham's § 2255 motion, vacate all three of his convictions, and reinstate Counts 1 through 4. Dkt. No. 184. The Government further informed the Court and Pham that it “intend[ed] to file additional charges against Pham based on additional evidence secured following his conviction and sentencing.” Id. at 9. Specifically, the Government explained that it had video and other evidence linking Pham to “high-ranking members of AQAP” that substantiated his intention to attack Heathrow International Airport in a suicide bombing. Id. Pham stated that he “d[id] not object” to the Government's application, which he understood would “vacate Pham's plea agreement.” Dkt. No. 187.
The parties on September 24, 2020, jointly proposed an order, Dkt. No. 189-1, which the Court entered that same day, Dkt. No. 191. That order vacated Pham's guilty pleas to Counts 2, 3, and 5; vacated the Court's order dismissing Counts 1 and 4; and ordered that the “plea agreement is NULLIFED upon vacating the convictions.” Dkt. No. 191.
The Government sought from the United Kingdom an exception to the rule of specialty to permit the United States to charge Pham with additional counts not charged in his original indictment. The United Kingdom confirmed receipt of that request on October 26, 2020. Oct. 28 Tr. at 10-11, Dkt. No. 222. The United Kingdom granted the request on January 12, 2021. Dkt. No. 201; Sternheim Decl., Ex. 9, Dkt. No. 217.
The Government filed a superseding indictment on April 8, 2021. The first four counts of the superseding indictment are identical to those charged in the original indictment. Counts 5 through 9 are as follows: (5) conspiracy to bomb a place of public use, in violation of 18 U.S.C. § 2332f; (6) attempted bombing of a place of public use, 18 U.S.C. § 2332f; (7) conspiracy to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a; (8) attempted use of a weapon of mass destruction, in violation of 18 U.S.C. § 2332a; and (9) possessing, carrying, and using a destructive device in relation to the crimes of violence charged in Counts 6 through 8, in violation of 18 U.S.C. § 924(c). S1 Indictment at 7-11
Pham filed the present motion to dismiss Counts 5 through 9, and for the disclosure of Brady materials, on August 30, 2021. Dkt. No. 216; Pham Br., Dkt. No. 218. The motion is fully briefed. Gov't Br., Dkt. No. 228; Pham Reply, Dkt. No. 234; Sternheim Reply Decl., Dkt. No. 233. The Court on February 25, 2022, held an oral argument on the statute-of-limitations issue raised in Pham's motion. Dkt. No. 235.
Because “federal crimes are solely creatures of statute, a federal indictment can be challenged on the ground that it fails to allege a crime within the terms of the applicable statute.” United States v. Aleynikov, 676 F.3d 71, 75-76 (2d Cir. 2012) (cleaned up). However, “[a] defendant faces a high standard in seeking to dismiss an indictment, because an indictment need provide the defendant only a plain, concise, and definite written statement of the...
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