United States v. Mostafa

• Decision Date: 22 October 2013
• Docket Number: No. 04 Cr. 356–1(KBF).,04 Cr. 356–1(KBF).
• Citation: 965 F.Supp.2d 451
• Parties: UNITED STATES OF AMERICA v. MOSTAFA Kamel Mostafa, Defendant.
• Court: U.S. District Court — Southern District of New York

965 F.Supp.2d 451

UNITED STATES OF AMERICA

v.MOSTAFA Kamel Mostafa, Defendant.

No. 04 Cr. 356–1(KBF).

United States District Court, S.D. New York.

Aug. 30, 2013.

Order Denying Reconsideration Oct. 22, 2013.

Eric B. Bruce, U.S. Attorney, Michael E. Farbiarz, Edward Young Kyu Kim, John Peter Cronan, U.S. Attorney's Office, New York, NY, for United States of America.

Jeremy Schneider, Rothman, Schneider, Soloway & Stern, LLP, Joshua Lewis Dratel, Law Offices of Joshua L. Dratel, P.C., Sabrina P. Shroff, Federal Defenders of New York Inc., New York, NY, for Defendant.

OPINION & ORDER

KATHERINE B. FORREST, District Judge:

In 2004, Mostafa Kamel Mostafa, also referred to in this action as Abu Hamza and Abu Hamza al-Masri, was indicted on eleven separate counts. (Indictment (“Ind.”), ECF No. 1.) He was arrested in England in 2004 and, after facing charges there, was extradited to the United States in 2012. Trial is scheduled to commence March 31, 2014. Currently before the Court is defendant's motion to dismiss all counts in the indictment, for a bill of particulars, and to strike surplusage. For the reasons set forth below, defendant's motion to dismiss and for a bill of particulars is denied. Defendant's motion to strike surplusage from the indictment is denied with leave to renew.

I. THE COUNTS

The indictment contains eleven counts:

Count One: Conspiracy to Take Hostages in violation of 18 U.S.C. § 1203¹;

Count Two: Hostage–Taking in violation of 18 U.S.C. §§ 2², 1203;

Count Three: Conspiracy to Provide and Conceal Material Support and Resources to Terrorists (The Bly, Oregon Jihad Training Camp), in violation of 18 U.S.C. §§ 956³ and 2339A⁴;

Count Four: Providing and Concealing Material Support and Resources to Terrorists (The Bly, Oregon Jihad Training Camp), in violation of 18 U.S.C. §§ 2, 956 and 2339A;

Count Five: Conspiracy to Provide Material Support and Resources to a Foreign Terrorist Organization (The Bly, Oregon Jihad Training Camp), in violation of 18 U.S.C. § 2339B⁵;

Count Six: Providing Material Support and Resources to a Foreign Terrorist Organization (The Bly, Oregon Jihad Training Camp), in violation of 18 U.S.C. §§ 2, 2339B;

Count Seven: Conspiracy to Provide and Conceal Material Support and Resources to Terrorists (Facilitating Violent Jihad in Afghanistan), in violation of 18 U.S.C. §§ 956, 2339A;

Count Eight: Providing and Concealing Material Support and Resources to Terrorists (Facilitating Violent Jihad in Afghanistan), in violation of 18 U.S.C. §§ 2, 2339A;

Count Nine: Conspiracy to Provide Material Support and Resources to a Foreign

Terrorist Organization (Facilitating Violent Jihad in Afghanistan), in violation of 18 U.S.C. § 2339B;

Count Ten: Providing Material Support and Resources to a Foreign Terrorist Organization (Facilitating Violent Jihad in Afghanistan), in violation of 18 U.S.C. § 2339B; and

Count Eleven: Conspiracy to Supply Goods and Services to the Taliban (IEEPA Violations), in violation of 18 U.S.C. § 371,⁶50 U.S.C. § 1705(b),⁷31 C.F.R. §§ 545.204, 545.206(b).⁸

II. CONDUCT ALLEGED IN THE INDICTMENT ⁹

The indictment alleges that from in or about December 23, 1998, up to and including December 29, 1998, defendant conspired to detain U.S. nationals. (Ind.¶ 1.) As part of this conspiracy, in late 1998, defendant is alleged to have provided a co-conspirator (“Co–Conspirator 1”), the leader of the Abyan faction of the Islamic Army of Aden, and a group of other co-conspirators with a satellite phone. (Id. ¶ 3(a).) On December 27, 2004, defendant is alleged to have received three telephone calls at his home from this satellite phone. (Id. ¶ 3(b).) On or about December 28, 1998, the co-conspirators took sixteen tourists hostage by use of force, including two U.S. nationals. (Id. ¶ 3(c).) That same day, while the hostage taking was in progress, defendant spoke with Co–Conspirator 1 on the satellite phone and gave advice relating to the hostage-taking. (Id. ¶ 3(d).) He also agreed to act as an intermediary. ( Id.)

On December 29, 1998, defendant ordered five hundred British pounds worth of additional airtime for the satellite phone being used by the hostage-takers. (Id. ¶ 3(e).) That same day, the Yemeni military attempted to rescue the hostages; during the rescue attempt, hostages were used as human shields; four of the hostages were killed and several others wounded. (Id. ¶ 3(f).)

From in or about October 1999 to early 2000, defendant and others are alleged to have conspired to provide material support to terrorists. (Id. ¶ 5.) In this regard, on several occasions in October 1999, defendant discussed with Co–Conspirator 2 creating a jihad training camp in Bly, Oregon. (Id. ¶ 7(a).) On October 25, 1999, Co–Conspirator 2 communicated with defendant that he and other co-conspirators were stock-piling weapons and ammunition in the United States. (Ind.¶ 7(b).) On that same day, defendant received a fax proposal regarding the creation of the Bly, Oregon jihad training camp. (Id. ¶ 11(a).) Defendant is alleged to have concealed the nature, location, source and ownership of material support and resources, knowing and intending that they were to be used by a foreign terrorist organization (al Qaeda, led by Osama Bin Laden) in preparation for, and in carrying out, killing, maiming and injuring persons and property in a foreign country. ( Id. ¶¶ 10, 12.)

In June 2000, defendant is alleged to have conspired with Co–Conspirator 2, a U.S. national, to provide and conceal material support to terrorists by raising money for an individual to travel to Afghanistan to wage violent jihad. ( Id. ¶ ¶ 13, 15.) Co–Conspirator 2 traveled through Manhattan, New York, en route to attempt to collect money in Long Island, New York. (Id. ¶ 15(a).) Co–Conspirator 2 did collect money which was then added to a “migration” or “hijrah” fund maintained by the Finsbury Park Mosque in England. ( Id.)

In November 2000, defendant requested that Co–Conspirator 2 accompany another co-conspirator, Co–Conspirator 3, from London, England, to a jihad training camp in Afghanistan. (Id. ¶ 15(b).) Defendant introduced Co–Conspirator 2 to Co–Conspirator 4, to arrange safehouses and lodging in Pakistan, and safe passage and travel into Afghanistan. (Id. ¶ 15(d).) Money from the Finsbury Park Mosque's hijrah fund was used for certain travel expenses thereafter incurred by Co–Conspirators 2 and 3. (Id. ¶ 15(c).) Later that month, Co–Conspirators 2 and 3 did in fact travel to Afghanistan. (Id. ¶ 15(e).)

In late 2000, at the request of defendant, Co–Conspirator 2 delivered compact discs containing defendant's statements to individuals located in the territory of Afghanistan controlled by the Taliban. (Id. ¶ 26(c).)

In March or April 2001, defendant directed Co–Conspirator 3 (who was still in Afghanistan), to seek out a front-line commander of al Qaeda. (Id. ¶ 19(a).) During the period from March through September 6, 2001, defendant and Co–Conspirator 2 discussed plans to set up a computer lab to be located in Kandahar, Afghanistan to service Taliban officials. (Id. ¶ 26(d).) Defendant gave Co–Conspirator 2 six thousand British pounds in furtherance of this project. (Id. ¶ 26(e).)

On September 6, 2001, defendant, assisted by Co–Conspirator 2, posted messages on a website “Supporters of Shariah” or “SOS”, urging defendant's followers to donate money, goods and services to Taliban-sponsored programs in the area of Afghanistan controlled by the Taliban. (Id. ¶ 26(a).)

III. DEFENDANTS ARGUMENTS

Defendant makes the following arguments in support of dismissal of all counts in the indictment:

1. Counts One and Two and Seven through Eleven must be dismissed because there is an insufficient nexus between the conduct alleged and the United States to warrant extraterritorial application, denying defendant his due process rights as guaranteed by the Fifth Amendment to the U.S. Constitution.

2. All counts should be dismissed because none states an offense.

3. Counts Three, Four, Seven and Eight should be dismissed because each fails to identify key elements of a conspiracy under 18 U.S.C. § 956.

4. Multiplicitous counts must be dismissed as a violation of the Fifth Amendment's prohibition on double jeopardy.

In addition, defendant seeks an order requiring the Government to provide a bill of particulars and to strike what he characterizes as “irrelevant and prejudicial surplusage” from the indictment.

IV. EXTRATERRITORIAL REACH

Defendant argues that there is an insufficient jurisdictional nexus between defendant and the United States to support Counts One, Two, and Seven through Eleven. He further asserts that applying the statutes underlying these counts to his conduct would violate his Fifth Amendment due process rights.

As to Counts One and Two (the Yemeni hostage-taking), defendant states there are no allegations that he intended to involve the United States. (Def.'s Mem. in Suppt. of Mot. to Dismiss Ind. (“Def.'s Br.”) at 6, ECF No. 175.) Similarly, defendant asserts that Counts Seven through Ten also fail to allege a sufficient nexus between the conduct charged and the United States. ( Id. at 9.) While defendant acknowledges that these counts allege that Co–Conspirator 2 travelled to the United States to raise money for the Finsbury Mosque's hijrah fund ( id. at 9), the “allegations central to this charge, that of facilitating violent jihad in Afghanistan, all took place outside of the United States and exclusively involved and/or were aimed at London, Pakistan and Afghanistan.” ( Id. at 9–10.)

Finally, with respect to Count Eleven, defendant argues that all of the overt acts alleged were directed at an area of Afghanistan controlled by the Taliban. ( Id. at 13–15.)

Defendant misconstrues the now well-established law relating to the extraterritorial application of criminal statutes.

As an initial matter, criminal statutes may have extraterritorial reach. See, e.g., United States v. Siddiqui, 699 F.3d 690, 700 (2d Cir.2012); ...