United States v. Young

• Decision Date: 09 May 2017
• Docket Number: 1:16–cr–265 (LMB)
• Citation: 260 F.Supp.3d 530
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES, v. Nicholas YOUNG, Defendant.

260 F.Supp.3d 530

UNITED STATES,

v.Nicholas YOUNG, Defendant.

1:16–cr–265 (LMB)

United States District Court, E.D. Virginia, Alexandria Division.

Signed May 9, 2017

Gordon D. Kromberg, John T. Gibbs, United States Attorney's Office, Alexandria, VA, for United States.

David Benjamin Smith, Smith & Zimmerman PLLC, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is defendant's Motion to Suppress Items Unconstitutionally Seized from his Residence, Backpack, Pickup Truck, and Worplace [sic] Locker ("Motion to Suppress") [Dkt. No. 69] and Motion for Reconsideration of March 10, 2017 Order ("Motion for Reconsideration") [Dkt. No. 84]. The Motion to Suppress has been fully briefed, oral argument has been held, and for the reasons stated in open court and more fully developed in this Memorandum Opinion, the motion has been denied. Mar. 10, 2017 Order [Dkt. No. 78]. Defendant's Motion for Reconsideration has also been fully briefed and, because oral argument will not assist the decisional process, the motion has been resolved on the papers. For the reasons stated in this Memorandum Opinion, the Motion for Reconsideration will be denied.

I. BACKGROUND

The Criminal Complaint Affidavit

On August 2, 2016, a magistrate judge issued an arrest warrant for the defendant based on a criminal complaint alleging that, from October 2014 through July 28, 2016, Nicholas Young ("Young" or "the defendant") attempted to provide material support to a designated foreign terrorist organization ("FTO"), specifically the Islamic State of Iraq and the Levant ("ISIL"), in violation of 18 U.S.C. § 2339B ("Criminal Complaint"). [Dkt. No. 1]. The complaint was supported by an affidavit signed by FBI Special Agent David Martinez ("Criminal Complaint Affidavit"), who stated that al–Qa'ida in Iraq ("AQI"), also known as ISIL and the Islamic State of Iraq and al–Sham ("ISIS"), has been a designated FTO since October 15, 2004 and that Sunni extremists as well as foreign fighters from Western countries have been traveling to Syria, usually through Turkey, to join ISIL. [Dkt. No. 2] ¶¶ 5, 7.

The affidavit described how Young, a police officer with the Washington Metropolitan Area Transit Authority ("WMATA") since 2003, had been interviewed in September 2010 by Federal Bureau of Investigation ("FBI") agents regarding his connection to Zachary Chesser, who had been arrested in 2010 for attempting to provide material support to al–Shabaab, another designated FTO. Id. ¶¶ 8, 9. A few months later, in January 2011, Young told an undercover law enforcement officer ("UCO") that he was wary of surveillance, frequently took the battery out of his cell phone when he wanted to go somewhere to talk, and had several "burner phones." Id. ¶ 10, 16. Young also told the UCO that he once aimed an AK–47 style rifle out of his window while scanning for law enforcement, that he was angry with the FBI for contacting his family and co-workers before interviewing him about Chesser, and that he was stockpiling weapons to use against law enforcement if they ever attempted to search his home. Id. ¶ 10, 15, 19. According to the UCO, Young said if someone ever betrayed him, their head would be in a cinder block at the bottom of Lake Braddock. Id. ¶ 11. In addition, Young spoke of kidnapping and torturing the FBI Special Agent who questioned him. Id. ¶ 15. On March 21, 2011, Young and the UCO met with Amine El Khalifi, who was later charged with attempting to use a weapon of mass destruction (an improvised explosive device or "IED") to detonate himself in the U.S. Capitol Building. Id. ¶ 13, 22. Over a meal, they discussed the fundamentals of marksmanship and Young and the UCO cautioned Khalifi to be careful about his online posts, as Chesser had recently been arrested for online activity. Id. ¶ 14. The three met again on April 1, 2011, during which Khalifi spoke of how shaheeds (which the affidavit translates as "martyrs; in this context, those who die while conducting violent jihad") are sent to the highest levels of heaven and Young said that one of the greatest shaheeds is a convert who fights the kaffirs [infidels or unbelievers] for the Muslims." Id. ¶ 17. At another meal with the UCO and Khalifi on April 4, 2011, Young said that he would never talk about the things he was going to do; instead people would find out after it happened. Id. ¶ 19.

In an interview with the FBI in September 2011, Young admitted that he had traveled to Libya twice in 2011 and had been with rebels attempting to overthrow the Qaddafi regime. Id. ¶ 20. Baggage searches by Customs and Border Protection on Young's outbound flights revealed that he carried body armor, a Kevlar helmet, and several other military style items. Id.

In 2014, Young met on 20 separate occasions with an FBI Confidential Human Source ("CHS"), who was posing as a U.S. military reservist of Middle Eastern descent who was eager to become more religious and leave the military as a result of having to fight against Muslims during his deployment to Iraq. Id. ¶ 24. In August 2014, the CHS told Young he wanted to join ISIS and Young advised him to watch out for informants and avoid discussing his plans with others. Id. ¶ 25. Young also gave him suggestions on how to travel to ISIS territory without being detained by law enforcement. Id. On September 11, 2014, Young showed the CHS a pro–ISIL video on YouTube, id. ¶ 26, and throughout September and October gave him additional advice on how to evade authorities while joining ISIL, id. ¶ 26–28. During an October 2, 2014 conversation, Young suggested that the CHS contact representatives of ISIL through social media using a burner phone and advised him on the types of gear to pack. Id. ¶ 28. As part of a conversation recorded by the CHS on October 24, 2014, Young and the CHS discussed the CHS's imminent departure from the United States and his cover story. Id. ¶ 33. Earlier, Young had offered to send a text a few weeks after the CHS left asking whether he was back from his vacation in the hope that the text would be found by law enforcement if they started investigating the CHS. Id. ¶ 32. On October 25, 2014, Young and the CHS went to a FedEx Office store and set up email accounts specifically for communicating with each other. Id. ¶ 34.

The CHS led Young to believe that he left the United States and succeeded in joining ISIL. Id. ¶ 35. In reality, the CHS had no further contact with Young and all communications between Young and the CHS's email account were between Young and FBI personnel posing as the CHS, referred to as "UCO2." Id. Young texted the CHS on November 20, 2014 saying, "Salam. Hope you had a good vacation."

That same day, the UC02 (posing as the CHS) sent an email to Young confirming that he had "made it to dawlah," another name for ISIL. Id. ¶¶ 2, 36. On December 17, 2014, Young emailed the CHS, congratulating him for making it to ISIL. Id. ¶ 37. Another email from Young on January 9, 2015 approvingly referenced the murders of the Charlie Hebdo magazine staff in Paris. Id. ¶ 38. Between February and July 2015, the two continued to email and Young told the CHS to let him know if he met any of the "Abo Salem Suhada Brig" mujahedeen with whom Young said he served when he was in Libya. Id. ¶ 39. The FBI understood "Abo Salem Suhada Brig" to refer to the Abu Salim Martyrs Brigade, a militia group in Libya with "possible links to al–Qaeda." Id.

On March 21 and 22, 2015, while Young was in email communication with the CHS, he attended an off-duty weapons training hosted by another WMATA officer. Id. ¶ 41. The officer observed Young bring a large amount of ammunition to the training and operate four firearms ranging from an Egyptian AK–47 to a .45 caliber pistol. Id. Young stated that he owned at least three other guns, including a World War II-era Russian Negant rifle, and said he wanted to buy a crate of Negant rifles to hand out if things went bad. Id. On June 1, 2015, Young was interviewed at his residence by law enforcement regarding an allegation of domestic violence. Id. ¶ 42. During the interview, Young admitted that he had dressed up as "Jihadi Kohn" for Halloween in 2014, periodically dressed up as a Nazi, had a Nazi eagle tattooed on his neck, and collected Nazi memorabilia. Id.

On June 15, 2015, Young emailed the CHS to ask him to get advice from his commanders on how Young could move his money out of the United States, noting that law enforcement officials were probably watching his bank account. Id. ¶ 40.

Law enforcement interviewed Young again on December 3, 2015, ostensibly in connection with an investigation into the whereabouts of the CHS. Id. ¶ 43. Young stated that the CHS had left for a vacation in Turkey approximately one year before. Id. He also said he had not been in contact with the CHS since October 2014 and denied talking with the CHS about Syria. Id. Law enforcement asked if he had the CHS's email address and Young supplied one but it was not the email address through which Young had been in contact with the CHS. Id. Two days later, on December 5, 2015, Young was interviewed by law enforcement again and said essentially the same thing. Id. ¶ 44.

On January 14, 2016, the UC02 (posing as the CHS) emailed Young and said, among other things, that the CHS's mother had been questioned about the CHS's whereabouts. Id. ¶ 45. Young replied on February 17, 2016, explaining that his response was delayed because he had to be careful about his communications, and sharing that he too had been questioned by law enforcement about the CHS. Id. That same day, Young replied to an earlier email from the CHS and commented on the Paris attacks where 130 people were killed and 400 injured, which had occurred just days earlier, saying the attackers were misunderstood and this gave the West a taste of what Muslims experience every day. Id. ¶ 46.

The UC02 (still posing as the CHS) sent Young an email on April 18, 2016, stating...