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Feds Utilize FISA and Charge Orange County Pharmacist with Providing Material Support to Terrorists and False Statements.
The U.S. Attorney’s Office for the Central District of California recently announced the indictment of Oytun Ayse Mihalik, a Turkish citizen and resident of La Palma, California. The 4-count indictment names Ms. Mihalik and alleges that she sent three wire transfers to an individual in Pakistan with knowledge that the money would be used to prepare for and carry out attacks that would kill United States military personnel overseas. Ms. Mihalik is also alleged to have provided the FBI and the Department of Homeland Security with false statements during the course of the agencies’ investigations into her wire transfers.
The allegations against Ms. Mihalik are substantial. The charge of providing material support to terrorists carries a statutory maximum penalty of 15 years in federal prison. Ms. Mihalik is facing three of these charges. Additionally, the charge of making false statements in a matter involving international terrorism carries a maximum sentence of eight years in federal prison. Even though the charges carry significant maximum penalties, the most unsettling aspect of these charges against Ms. Mihalik is that the charges are premised on classified evidence that neither Ms. Mihalik nor defense counsel has reviewed.
The Foreign Intelligence Surveillance Act (“FISA”) permits the U.S. Government to perform electronic surveillance and physical searches to obtain intelligence in the U.S. on foreign powers (such as enemy agents or spies) or individuals connected to international terrorist groups. As such, most of the information and evidence collected pursuant to such surveillance and searches pertains to the national defense and is classified. The prosecution may therefore protect the interests of the United States by requesting protective orders or offer to provide redacted summaries of the evidence against the defendant pursuant to the Classified Information Procedure Act (“CIPA”). Nonetheless, CIPA provides the defense with some very valuable tools.
Therefore defense counsel must be familiar with CIPA. Proper access to classified information is critically important to ensuring the government is put to its burden of proof and to afford defense counsel a meaningful opportunity to put forth applicable defenses. However, the defense’s needs are tempered by CIPA to avoid instances of “graymail” by defendants who might threaten to reveal classified information if prosecuted without saying what the evidence was or allowing the court to determine its relevance.
Accordingly, CIPA states that “if a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving criminal prosecution, the defendant shall . . . within 30 days prior to trial . . . notify the attorney for the United States and the court in writing.” Failing to follow such procedure risks empowering the court to deny the defense from accessing, reviewing, disclosing, or otherwise benefiting from classified information in its case. There is also a continuing obligation to disclose and describe any new classified information that may come up. This continuing responsibility states that such disclosures should be made “in writing as soon as possible” to both the attorney for the government and the court.
Defending national security related crimes presents both intellectual and procedural challenges. Defense counsel should therefore be well versed in both national security and criminal jurisprudence.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
Two Individuals Indicted for Narcotics Trafficking and Conspiring to Provide Support to Hizballah; Extradited to the U.S.
The U.S. Attorney’s Office for the Southern District of New York recently announced the extraditions of Siavosh Henareh and Cetin Asku from Romania on charges of conspiring to provide narcotics and, in the case of Aksu, material support to Hizballah through an individual whom they believed to be an associate of Hizballah, but who was in fact, a Drug Enforcement Administration (“DEA”) confidential source. Aksu is further charged with conspiring to acquire, transfer, and possess anti-aircraft missiles.
The indictment alleges that Henareh and Aksu, the defendants, and others known and unknown, carried out a series of over acts for the purpose of brokering a heroin transaction with confidential sources working for the DEA. One of those confidential sources was posing as an associate of Hizballah, which has been designated by the United States Secretary of State as a foreign terrorist organization in 1997. From about December 2010 to about April 2011 Henareh and Aksu were part of a plan with the confidential sources to acquire hundreds of kilograms of high-quality heroin to import into and sell in the United States. Henareh and Aksu were informed by the confidential sources that the profits and proceeds from this proposed sale of heroin would be used to purchase weapons for Hizballah.
The indictment further alleges that Henareh received $23,000 from a confidential source and sent the money via hawala from one confidential source in Bucharest, Romania to another confidential source in Istanbul, Turkey for the purpose of acquiring a sample of the heroin to be used in the anticipated deal to sell the drug in the United States and benefit Hizballah. It is alleged that Aksu further indicated that he had an additional 200 kilograms of heroin available for sale in the anticipated deal.
With respect to Aksu, his alleged involvement in the anticipated deal also included providing material support to Hizballah and acquiring, transfering, and possessing anti-aircraft missiles. These charges stem from alleged conversations between Aksu and confidential sources indicating Aksu’s ability to acquire and sell handguns, automatic assault rifles, and anti-aircraft missiles. These alleged conversations indicated the types, quantities, and prices of various weapons. Aksu also allegedly provided the confidential sources with a list of weapons for sales with prices, including anti-aircraft missiles. Aksu also allegedly indicated that he already had Hizballah as a buyer for these products. Aksu and another uncharged individual allegedly entered into a contract worth $9.5 million with the confidential sources to purchase said weapons for Hizballah.
Henareh and Aksu were extradited to the United States from Romania on November 17, 2011 to face the abovementioned charges made in an indictment that was unsealed on July 26, 2011. The government is also seeking forfeiture of any and all assets and funds, wherever located, related to any of the abovementioned charges if convictions are obtained against the defendants.
It is apparent from this indictment and extraditions that the U.S. has confidential sources around the world who coordinate with various State Department and DEA offices in foreign nations. The U.S. has also fostered law enforcement relationships with nations around the world to coordinate enforcement actions and sting operations meant to ferret out those individuals who are willing to provide support to terrorists and undertake various narcotics trafficking activities.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
Two Indicted for Conspiracy to Provide Material Support to Terrorists
The DOJ recently announced that Ali Charaf Damache, an Algerian man who resided in Ireland, and Mohammad Hassan Khalid, a Pakistani citizen and U.S. lawful permanent resident who resided in Maryland, have been charged with conspiracy to provide material support to terrorists in a superseding indictment returned on October 20, 2011 in the Eastern District of Pennsylvania.
Damache, aka “Theblackflag,” 46, is charged in the superseding indictment with one count of conspiracy to provide material support to terrorists and one count of attempted identity theft to facilitate an act of international terrorism. Damache was arrested by authorities in Ireland in March 2010 where he is currently being held on unrelated charges. The United States intends to seek his extradition from Ireland to stand trial in the Eastern District of Pennsylvania. If convicted of the charges against him in the superseding indictment, Damache faces a potential sentence of 45 years in prison.
Khalid, aka “Abdul Ba’aree ‘Abd Al-Rahman Al-Hassan Al-Afghani Al-Junoobi W’at-Emiratee,” 18, is charged in the superseding indictment with one count of conspiracy to provide material support to terrorists. Khalid was arrested in Ellicot City, Md., on July 6, 2011, and is currently in custody in the Eastern District of Pennsylvania. If convicted of the charge against him in the superseding indictment, Khalid faces a potential sentence of 15 years in prison.
The indictment alleges that, from about 2008 through July 2011, Damache and Khalid conspired with Colleen R. LaRose, Jamie Paulin Ramirez and others to provide material support and resources, including logistical support, recruitment services, financial support, identification documents and personnel, to a conspiracy to kill overseas. LaRose, aka “Fatima LaRose,” aka “JihadJane,” pleaded guilty in February 2011 in the Eastern District of Pennsylvania to conspiracy to provide material support to terrorists, conspiracy to kill in a foreign country, false statements, and attempted identity theft. Ramirez pleaded guilty in the Eastern District of Pennsylvania in March 2011 to conspiracy to provide material support to terrorists.
According to the indictment, Damache, Khalid and others devised and coordinated a violent jihad organization consisting of men and women from Europe and the United States divided into a planning team, a research team, an action team, a recruitment team and a finance team; some of whom would travel to South Asia for explosives training and return to Europe to wage violent jihad.
The indictment alleges that Damache, Khalid, LaRose and others recruited men online to wage violent jihad in South Asia and Europe. In addition, Damache, Khalid, LaRose and others allegedly recruited women who had passports and the ability to travel to and around Europe in support of violent jihad. The indictment further alleges that LaRose, Paulin-Ramirez and others traveled to and around Europe to participate in and support violent jihad; and that Khalid and LaRose and others solicited funds online for terrorists.
The investigation leading to this indictment included coordinated efforts by the FBI’s Joint Terrorism Task Force in Philidelphia, and the FBI Field Divisions in New York, Denver, Washington, DC, and Baltimore. Authorities in Ireland also provided assistance.
It is unclear from the indictment whether any of the co-conspirators were informants working under the direction of the FBI or if they were actual co-conspirators. If these co-conspirators were informants working with investigators then the defendants might be able to benefit from an entrapment defense. Entrapment is a complete defense to a criminal charge if (1) the government induced the crime and (2) the defendant lacked the predisposition to engage in the alleged criminal conduct. This defense is designed to discourage the government from “gaming” otherwise innocent people into thinking they can successfully engage in and attempt crimes. These individuals are subsequently arrested by the very authorities who set them up. Given that several of the co-conspirators in this case had already pled guilty it would be interesting to know if any of them exchanged their cooperation with this investigation for lighter sentences in their own cases. If so, the case for entrapment becomes more compelling.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
