Archive
Accused Member of Foreign Terrorist Organization Extradited to United States on Hostage Taking Charges
The Department of Justice announced on March 12, 2012 that Alexander Beltran Herrera, a/k/a Jhon Beltrain Herrera, a/k/a Rodrigo Pirinolo, an accused member of the Revolutionary Armed Forces of Colombia (“FARC”), has been extradited from Colombia to face hostage taking and terrorism charges in the United States.
The indictment alleges that the FARC is an armed and violent organization in the Republic of Colombia. The indictment further alleges that the FARC is a “highly structured criminal organization” divided into seven geographic “blocks” — the Caribbean block, the Northwestern block, the Middle Magdalena block, the Central block, the Eastern block, the Western block, and the Southern block — which are each further subdivided into a number of Fronts and named Mobile Columns. The indictment specifically alleges that Mr. Herrera was a member of the 27th Front in the FARC’s Southern block and committed various crimes against the United States as a member of FARC.
For example, according to the indictment, in 2004 the 27th Front allegedly held three Americans for nearly two years. The indictment also alleges that Mr. Herrera was one of the FARC “jailers” who used “choke harnesses, chains, padlocks, and wires to bind the necks and wrists” of American hostages. In addition to these alleged acts, Mr. Herrera was charged with the following specific offenses: 18 U.S.C. 1203(a) (Conspiracy to Commit Hostage Taking); 18 U.S.C. 1203(a),(2) (Hostage Taking; Aiding and Abetting and Causing an Act to be Done); 18 U.S.C. 924(c),(2) (Using and Carrying a Firearm During a Crime of Violence; Aiding and Abetting and Causing an Act to be Done); 18 U.S.C. 2339A (Conspiracy to Provide Material Support to Terrorists); 18 U.S.C. 2339B (Conspiracy to Provide Material Support or Resources to a Designated Foreign Terrorist Organization).
When an individual located in a foreign country has been indicted by a federal grand jury the United States will attempt to compel the government of that country to turn that individual over into the custody of the United States. This request will usually be pursuant to an extradition treaty between the United States and that foreign country. The extradition request is formally made with the foreign government’s embassy in the United States. Additionally, this formal request is made by the U.S. Department of State, not Justice. The U.S. will likely accompany this formal request with a copy of the indictment, arrest warrant, relevant statutes, a photograph of the accused, and the affidavit of an investigating officer on the case.
When this request is made, the terms of the treaty dictate whether the foreign government will agree to turn over the individual into the custody of the United States. Accordingly, most extradition treaties must satisfy a legal concept known as dual criminality. Dual criminality means that the offenses being charged by the requesting country must also be considered punishable offenses in the other country. This very requirement exists in Article 2(1)(a) of the extradition treaty between the United States and Colombia.
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.
Former CIA Officer John Kiriakou Charged for Disclosing Classified Information to Journalists, False Statements, and Revealing the Identity of a Covert Officer
The U.S. Attorney’s Office for the Eastern District of Virginia recently announced that it has charged John Kiriakou with repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities. Specifically, Kiriakou has been charged with one count of violating the Intelligence Identities Protection Act and two counts of violating the Espionage Act. Kiriakou was also charged with one count of making false statements for allegedly lying to the Publications Review Board of the CIA in an unsuccessful attempt to trick the CIA into allowing him to include classified information in a book he was seeking to publish.
Upon conviction, the count charging illegal disclosure of a covert officer’s identity to a person not authorized to receive classified information carries a maximum penalty of five years in prison, which must be imposed consecutively to any other prison term; the two counts charging violations of the Espionage Act each carry a maximum term of 10 years in prison; and making false statements carries a maximum prison term of five years. Each count carries a maximum fine of $250,000.
Being that the allegations against Kiriakou are in the form of a criminal complaint, the government’s next step will be to initiate and conduct a grand jury investigation, if they have not already done so. Since grand jury investigations are secret, the government could have already begun such an investigation and interviewed various witnesses involved in the offenses above. The grand jury investigation will determine whether there is probable cause to indict Kiriakou before arraigning him and is generally required in the federal criminal justice system, unless waived by the defendant. If Kiriakou waives his right to a grand jury investigation the prosecution can alternatively proceed by filing an information.
There are several reasons why a defendant would agree to waive his right to a federal grand jury investigation and its determination of probable cause. Since grand jury investigation are ex parte proceedings (held only by the prosecution) they tend to conclude with a finding of probable cause. Additionally, if the defendant has previously spoken to prosecutors he may have already negotiated a favorable plea agreement that would only be available to him at these early stages of the prosecution. The defendant may also want to reduce the risk of uncovering additional offenses that would necessarily be uncovered if a grand jury investigation was commenced. Whatever the reason, the steps moving forward are highly personal and will be ultimately determined by the defendant after close consultation with and advice from defense counsel.
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.
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.
Five Individuals and Four Companies Indicted in Fraud Conspiracy Involving Exports to Iran
The DOJ recently reported that five individuals and four of their companies have been indicted as part of a conspiracy to defraud the United States that allegedly caused thousands of radio frequency modules to be illegally exported from the United States to Iran, at least 16 of which were later found in unexploded improvised explosive devices (IEDs) in Iraq. Some of the defendants are also charged in a fraud conspiracy involving exports of military antennas to Singapore and Hong Kong.
Authorities in Singapore arrested Wong Yuh Lan (Wong), Lim Yong Nam (Nam), Lim Kow Seng (Seng), and Hia Soo Gan Benson (Hia), all citizens of Singapore, in connection with a U.S. request for extradition. The United States is seeking their extradition to stand trial in the District of Columbia. The remaining individual defendant, Hossein Larijani, is a citizen and resident of Iran who remains at large.
The indictment alleges that the defendants conspired to defraud the U.S. and defeat export controls by sending U.S.-origin components to Iran rather than to their stated final destination of Singapore. The government has stated that this case undescores the continuing threat posed by Iranian procurement networks seeking to obtain U.S. technology.
The indictment, which was returned in DC on Sept. 15, 2010, and unsealed on October 25, 2011, includes charges of conspiracy to defraud the U.S., smuggling, illegal export of goods from the United States to Iran, illegal export of defense articles from the U.S., false statements, and obstruction of justice.
The charged defendants are Iranian national Larijani, 47, and his companies Paya Electronics Complex, based in Iran, and Opto Electronics Pte, Ltd., based in Singapore. Also charged is Wong, 39, an agent of Opto Electronics who was allegedly supervised by Larijani from Iran. The indictment also charges NEL Electronics Pte. Ltd., a company in Singapore, along with NEL’s owner and director, Nam, 37. Finally, the indictment charges Corezing International Pte. Ltd., a company in Singapore that maintained offices in China, as well as Seng, 42, an agent of Corezing, and Hia, 44, a manager, director and agent of Corezing.
Wong, Nam, Seng and Hia allegedly conspired to defraud the United States by impeding U.S. export controls relating to the shipment of 6,000 radio frequency modules from a Minnesota company through Singapore to Iran, some of which were later found in unexploded IEDs in Iraq. Seng and Hia are also accused of conspiring to defraud the United States relating to the shipment of military antennas from a Massachusetts company to Singapore and Hong Kong. Singapore has agreed to seek extradition for Wong and Nam on the charge of conspiracy to defraud the United States relating to the components shipped to Iran, and to seek extradition for Seng and Hia on the charge of conspiracy to defraud the United States relating to the military antenna exports.
In coordination with the criminal actions taken, the Commerce Department Bureau of Industry and Security announced the addition of 15 persons located in China, Hong Kong, Iran and Singapore to the Commerce Department’s Entity List. In addition to the five individual defendants in this case, the Commerce Department named additional companies and individuals associated with this conspiracy. In placing these parties on the Entity List, the Commerce Department is imposing a licensing requirement for any item subject to Commerce regulation with a presumption that such a license would be denied.
The United States aggressively enforces its export control and national security laws to ensure continued compliance with regulations expounding U.S. national security and foreign policy interests. Criminal prosecutions such as the ones announced in this indictment usually denote willful violations of the regulations. By lying to investigators and regulators, these individuals and companies find themselves in the unenviable position being charged with crimes that put them at direct odds with the stated national security and foreign policy goals of the United States.
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.
U.S. Scientist with NASA Attempted to Sell State Secrets to Israel
It’s been reported that Stewart David Nozette, a former U.S. government scientist with NASA, has pleaded guilty to one count of attempted espionage for trying to sell classified information to an undercover FBI agent posing as an Israeli spy. The offense of espionage has a maximum penalty of death, but because Nozette cooperated with the investigation he was offered a plea agreement with a 13 year sentence.
The secrets Nozette attempted to sell to Israel included information about satellites, early warning systems, ways of retaliating against large-scale attacks, communications intelligence information and major elements of defense strategy. In a recorded conversation with an undercover agent Nozette had estimated the secret information could have cost the U.S. government between $200 million and $1 billion to develop and that he expected around 1% of that value as compensation from Israel. He also requested an Israeli passport in case he needed to flee the country.
Espionage is a serious federal offense, one that carries penalties as stiff as life imprisonment or death. The law was first passed as the Espionage Act of 1917 and is now codified at 18 U.S.C. 792 et. seq. In relevant part, the statute Nozette pleaded guilty to makes it a crime for anyone who “attempts to communicate, deliver, or transmit, to any foreign government . . . either directly or indirectly, any document, writing . . . or information relating to the national defense” with intent or reason to belive that such information is to be used “to the injury of the United States or to the advantage of a foreign nation.”
Historically, criminal defense attorneys have argued that the espionage statute is an unconstitutional infringement on a person’s 1st Amendment right to free speech. However, the Supreme Court unanimously decided in Schenk v. United States that the government can infringe upon free speech if such words being infringed upon “are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Thus validating the Espionage Act’s constitutionality in 1919.
Any future attempts to construe the statute as unconstitutional on the basis of the First Amendment will likely be unsuccessful because since 1919 the Supreme Court has eased the restrictions imposed upon Congress’ ability to restrict free speech. Namely that the “clear and present danger” test from Schenk has been replaced with the “imminent lawless action” test from Brandenberg v. Ohio. Congress is allowed to restrict speech so long as the defendant, through his speech, (1) intended the occurence of an evil Congress is authorized to protect against; (2) the evil was actually imminent; and (3) the evil was likely to occur.
In the case of espionage, the sharing of state secrets with foreign nations implicates all three requirements of this test: (1)Compromising the national security interests of the United States is an evil Congress is authorized to avoid; (2) Sharing top secret information with an agent of a foreign government makes such an evil imminent; and (3) it is likely that U.S. national security concerns are compromised if a foreign government possesses U.S. state secrets. Thus fighting the espionage statute itself will likley bear little fruit.
Therefore a defendant facing federal criminal charges implicating national security should hire experienced counsel that is capable of leveraging the defendant’s knowledge of facts that interest the government against the prosecutor in order to negotiate a plea arrangement that benefits both sides. Avoiding life imprisonment or the death penalty is imperative. Much like Nozette, who is only being sentenced to 13 years, the opportunity to cooperate should be seized by a defendant facing similar offenses.
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.
F.B.I. Shifting its Focus from Ordinary Crime to National Security and Intelligence Gathering
The N.Y. Times is reporting that agents at the Federal Bureau of Investigation (FBI) are more likely to be hunting potential threats to national security than for ordinary criminals in recent years.
This finding comes from data collected detailing the bureau’s activities the last 2 years. The data was part of an internal FBI report that the NY Times successfully obtained under the Freedom of Information Act (FOIA). The report details the FBI’s shift from a law-enforcement agency focused on solving crimes to a domestic intelligence agency whose mission is to detect potential threats before they can reach fruition.
In order to accomplish this transition the FBI instituted a policy to investigate every single national security tip, no matter how dubious the tip may be. Further, if the FBI receives a national security related tip from another agency, like the CIA or OFAC, the FBI will immediately open a more intensive investigation instead of starting with an “assessment.” (A couple of posts about the FBI’s new operations guide regarding assessments and investigations were discussed previously here, and here)
The FBI’s shift away from investigating ordinary crime to prioritizing national security related issues has already had a significant impact. So the critical question that needs to be asked is: What exactly are national security related issues? The U.S. government has expressly stated at one time or another through its various agencies and institutions that crimes related to money laundering, bank secrecy, smuggling, currency transaction reporting, trade sanctions, tax evasion, and narcotics production and trafficking are all national security related issues. As this list demonstrates, the government has unequivocally focused its attention on terrorism finance as one of the major ways of securing national security.
Coupling the government’s focus on terrorism finance with the FBI’s new focus on national security issues probably means more criminal investigations of people in immigrant groups with links to the Middle East, South America, Africa, and East Asia for activities that, in fact, are not at all related to national security. Additionally, this change in federal law enforcement policy coupled with a newly invigorated focus on terrorism finance also means more criminal investigations and scrutiny of traditional white collar activities and financial transactions. Thus, as everyday activities are increasingly linked to national security the general public will be subjected to increased government scrutiny.
Although many traditional protections offered to people that are targets of criminal investigations have eroded since September 11, the FBI is still, at its heart, a law enforcement agency receptive to this country’s legal standards associated with criminal investigations and trials (i.e. reasonable suspicion, probable cause, and beyond a reasonable doubt). However, as the FBI increases its intelligence gathering operations, the need for an effective federal defense attorney becomes even more important. Because the FBI will be subjecting more everyday activities to investigations for “intelligence gathering,” a knowledgeable federal defense attorney will be needed to explain to agents cultural nuances, federal regulatory policies, and foreign policy concerns applicable to a particular client’s situation. This level of knowledge in an attorney is vital to ensuring that the FBI doesn’t misinterpret the findings of an investigation which can ultimately lead to an erroneous indictment or conviction.
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 Iraqis Indicted on Federal Terrorism Charges in Kentucky, Face Up to Life in Prison
Waad Ramadan Alwan, 30, and Mohanad Shareef Hammadi, 23, were charged in a 23-count indictment returned by a federal grand jury in Bowling Green, KY on May 26, 2011. Alwan is charged with conspiracy to kill U.S. nationals abroad; conspiracy to use a weapon of mass destruction against U.S. nationals abroad; distributing information on the manufacture and use of improvised explosive devices (IEDs); attempting to provide material support to terrorists and to al Qaeda in Iraq; as well as conspiracy to transfer, possess, and export Stinger missiles. Hammadi is charged with attempting to provide material support to terrorists and to al Qaeda in Iraq, as well as conspiracy to transfer, possess, and export Stinger missiles.
Alwan was the target of a federal investigation since Septemeber of 2009. Hammadi wasn’t targeted until January of 2011. Both were set up in a sting operation and arrested on May 25, 2011. Many of the allegations against the two defendants were discovered by federal agents when they began using a confidential human source who met with and engaged in recorded conversations with the defendants. Alwan allegedly discussed his prior activities as an insurgent in Iraq from 2003 until his capture by Iraqi authorities in May 2006. The FBI was subsequently able to identify two latent fingerprints belonging to Alwan on a component of an unexploded IED that was recovered in Iraq. Hammadi also allegedly discussed with the informant his prior experience as an insurgent in Iraq.
Alwan entered the United States in April 2009 and Hammadi in July 2009.
Justice officials have stated that the “dismantling of terrorist networks is the first priority of . . . the Department of Justice.” The government uses well coordinated efforts by the FBI, local law enforcement, and the Joint Terrorism Task Forces to effectively pursue and prosecute terrorists in the United States. Not only have these two individuals been charged with crimes committed in Iraq, both were allegedly still supporting al-Qaeda from the United States by facilitating the transfer of money and weapons into Iraq. Alwan also drafted instructions for the construction and use of IEDs in Iraq. As part of the sting operation both Alwan and Hammadi allegedly picked up two Stinger missiles from a storage facility and delivered them to a tractor trailer with the understanding that the items would be shipped to Iraq.
The defendants in this case have been charged with crimes committed both in the United States and abroad. The use of confidential human sources and recorded conversation played an instrumental role in indicting and arresting both men. The use of these federal investigative tactics was so effective that the government was confident enough to charge the defendants with crimes committed over 8 years ago in a war zone in addition to the more recent crimes committed in the United States . The federal government possesses the resources and technology to coordinate efforts across international lines and between federal and state law enforcement agencies. Ensuring the proper administration of justice in high profile cases like these requires the zealous advocacy of an effective federal defense attorney who can properly challenge the government’s use of such tactics. Justice’s press release can be found here.
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.
