United States v. Shafi

• Decision Date: 03 May 2017
• Docket Number: Case No. 15-cr-00582-WHO-1.
• Citation: 252 F.Supp.3d 787
• Parties: UNITED STATES of America, Plaintiff, v. Adam SHAFI, Defendant.
• Court: U.S. District Court — Northern District of California

252 F.Supp.3d 787

UNITED STATES of America, Plaintiff,

v.Adam SHAFI, Defendant.

Case No. 15-cr-00582-WHO-1.

United States District Court, N.D. California.

Signed May 3, 2017

Candace Kelly, Jeffrey L. Shih, United States Attorney's Office, San Francisco, CA, for Plaintiff.

Frederick Randall Remer, Law Offices of Frederick R. Remer, Hayward, CA, Joshua Lewis Dratel, Joshua L. Dratel, PC, New York, NY, Harris Tayback, for Defendant.

ORDER DENYING MOTION TO DISMISS

William H. Orrick, United States District Judge

INTRODUCTION

Adam Shafi is charged with violating 18 U.S.C. § 2339B(a)(1) attempting to provide material support (namely himself) to the al–Nusrah Front, a foreign terrorist organization. He argues here that the indictment should be dismissed because it fails to allege sufficiently how he put himself under the organization's direction or control, which he contends is either an element or essential fact that must be included in the indictment. It is neither. Shafi knows what the government believes he was attempting to do and how he was attempting to do it. The motion to dismiss the indictment is DENIED.

BACKGROUND

I. THE CRIMINAL COMPLAINT.

On June 30, 2015, the government filed a criminal complaint against Shafi for one count of "attempt[ing] to provide material support to a foreign terrorist organization," as prohibited under 18 U.S.C. § 2339B. Compl. According to the complaint, Shafi "disappeared" during a family trip to Cairo, Egypt, in August 2014. Compl. ¶ 15. His father reported Shafi's disappearance to the United States embassy in Cairo, Egypt, explaining that Shafi had not told anyone in the family where he was going. Comp. ¶¶ 15–16. His father also reported that subsequent to his disappearance, Shafi sent a text message to a relative that he had gone to "protect Muslims." Compl. ¶ 15. Shafi's father was concerned that he had "been recruited and that it was important to find him quickly to prevent him from doing harm to himself or others at the direction of those who recruited him." Compl. ¶ 16. It was later revealed that Shafi had traveled to Turkey. Compl. ¶ 18. He eventually rejoined his family and returned to the United States. Compl. ¶ 17.

After obtaining a warrant, the FBI conducted a search of Shafi's e-mail account on December 2, 2014. Compl. ¶ 22. The search revealed that once back in the United States, Shafi began researching ways to reach Syria through Turkey. Compl. ¶ 22–24. He had also e-mailed with others regarding possible travel to Turkey. Compl. ¶ 22.

While at home, Shafi led his two younger brothers in "paramilitary style" training exercises, including calisthenics, running through the neighborhood, and "crawling through the mud at a park near their home in Fremont, California." Compl. ¶ 25. Shafi also spoke with others via telephone, making statements such as "I am completely fine with dying with [an unspecified foreign terrorist organization]," discussing living in an area in Syria controlled by that foreign terrorist organization, and condemning America as the enemy. Compl. ¶ 27–38.

On June 30, 2015, Shafi purchased a one-way ticket to Istanbul, Turkey. Compl. ¶ 39. Prior to boarding, he was intercepted by federal agents, who told him they "needed to speak with him" and escorted him to an interview room. Compl. ¶ 41. He told the agents that he was traveling to Turkey because he no longer wanted to live in the United States; he said that he had planned to inform his parents once he arrived in Turkey. Compl. ¶ 42.

Shortly after that, a different federal agent conducted another interview with him. Compl. ¶ 43. Shafi reiterated his desire to move to Turkey. Compl. ¶ 43. The agent asked him if he was traveling to Turkey so that he could cross into Syria and join a foreign terrorist organization. Compl. ¶ 43. Shafi denied this, but noted that there were many refugees in Turkey; he said he would try to help the refugees if he could. Compl. ¶ 43. He said that some people "helped by building a house, while others picked up a gun." Compl. ¶ 43. When the agent asked Shafi if he intended to travel to Turkey so he could "pick up a gun" and become a fighter, Shafi said no. Compl. ¶ 43. With Shafi's consent, the agent then conducted a search of Shafi's backpack. Compl. ¶ 44. The agent found personal items along with a copy of the Quran and a "small paper-back book of Islamic prayers," among other things. Compl. ¶ 44.

After completing the interview and search, the agents escorted Shafi out of the airport to public transit so that he could return to his family's home. Compl. ¶ 45. On his way home, Shafi made a phone call that was intercepted by the government. He related his experience at the airport with the agents and expressed that only some "kind of idiot" would say yes in response to the questions asked by the agents regarding his intentions to travel to Syria in order to join a foreign terrorist organization. He then made another phone call, where he expressed similar sentiments about the questions asked by the agents. The person Shafi called asked if he could say where he intended to travel; Shafi responded, "You know where I was going to go ... I was going to Turkey." Compl. ¶ 48.

II. PROCEDURAL BACKGROUND.

On February 9, 2017, Shafi moved to dismiss the indictment because it fails to state an essential element of the offense of material support. Motion [Dkt. No. 123] at 3. He claims that an essential element of "material support" to a terrorist organization in the form of personnel is that the personnel must be under the "direction or control" of that terrorist organization. Id. at 6. He asserts that neither the criminal complaint nor the indictment state facts to indicate that he attempted to place himself under the "direction or control" of, or attempt to "organize, manage, supervise, or otherwise direct the operation of" a "foreign terrorist organization." 18 U.S.C. § 2339B(h) ; Compl.; Dkt. No. 15.

He argues in the alternative that if the "direction or control" provision is merely affirmative defense that does not need to be pleaded in the indictment, I should require the government at trial to prove beyond a reasonable doubt that Mr. Shafi acted under the "direction or control" of a terrorist organization. Id. at 13.

The government opposed, arguing that: (i) the indictment contains all essential elements of attempting to provide material support for a foreign terrorist organization, Opposition [Dkt. No. 133] at 2; (ii) subsection (h) is a "definitional provision" and not an "essential element" of the offense, id. at 3–10; and (iii) it need not prove that Shafi acted under the "direction or control" of a foreign terrorist organization at trial. Id. at 11–12.

In reply, Shafi advanced two new arguments. Reply [Dkt. No. 134]. First, he contends that the rule of lenity requires that subsection (h) be construed as an element of the offense and that it must be pleaded in the complaint. Second, he asserts that regardless of whether the requirements of subsection (h) are elements of the offense or merely definitional, they must be pleaded in the complaint because otherwise the indictment is unconstitutionally vague. Reply 9.

LEGAL STANDARD

Rule 7 of the Federal Rules of Criminal Procedure requires an indictment to be "a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). To be sufficient, an indictment must "(1) contain[ ] the elements of the offense charged and fairly inform[ ] a defendant of the charge against him which he must defend; and (2) enable[ ] him to plead an acquittal or conviction in bar of future prosecutions of the same offense." United States v. Lazarenko , 564 F.3d 1026, 1033 (9th Cir. 2009) (internal quotation marks omitted). However, an indictment that tracks the language of the statute charging the offense is sufficient if it unambiguously sets forth all of the elements necessary to constitute the offense. United States v. Givens , 767 F.2d 574, 584 (9th Cir. 1985).

If an indictment fails to include an essential element of the charged offense, it must be dismissed. United States v. Du Bo , 186 F.3d 1177, 1179 (9th Cir. 1999). An indictment may also be dismissed if it contains an error and there is "some evidence that the error misled the defendant to the defendant's prejudice." United States v. Berger , 473 F.3d 1080, 1103 (9th Cir. 2007).

A party may raise "by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). When considering such a motion, the Court accepts the allegations of the indictment as true. United States v. Blinder , 10 F.3d 1468, 1471 (9th Cir. 1993). The indictment "should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied." United States v. King , 200 F.3d 1207, 1217 (9th Cir. 1999).

DISCUSSION

18 U.S.C. § 2339B makes it unlawful to "knowingly provide[ ] material support ... to a foreign terrorist organization or attempt[ ] or conspire[ ] to do so." To violate Section 2339B, a person "must have knowledge that the organization is a designated terrorist organization, that the organization has engaged or engages in terrorist activity, or that the organization has engaged or engages in terrorism." "Material support or resources" includes "personnel (1 or more individuals who may be or include oneself)." 18 U.S.C. §§ 2339A(b)(1) and 2339B(g)(4).

In 2003, the Ninth Circuit declared Section 2339B unconstitutional on the basis that the term "personnel" was "impermissibly overbroad, and thus void for vagueness under the First and Fifth Amendments." Humanitarian Law Project v. U.S. Dep't of Justice , 352 F.3d 382, 385 (9th Cir. 2003). Congress responded by amending the statute with subsection (h), clarifying and limiting the scope of Section 2339B. That subsection provides:

No person may be prosecuted under this section in connection with the term

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