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The Arms Export Control Act Withstands Constitutionality Challenge in Ninth Circuit Part II
This blog posting is part II of our analysis of U.S. v. Chi Mak. Part I can be read here.
The Ninth Circuit also disposed of Mak’s claims about jury instructions and deliberation on willfulness, the requisite intent that must be proven beyond a reasonable doubt in criminal prosecutions of the Arms Export Control Act (AECA). The relevant case law in the matter presumably favors the defense.
Accordingly, every criminal defendant has a constitutional right to a “meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); see also United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (grounding right to a meaningful defense in the Fifth and Sixth Amendments). An accused can defend against a charge that requires the Government to prove willfulness by presenting evidence that he did not voluntarily or intentionally violate a known legal duty. Cheek v. United States, 498 U.S. 192, 202–03 (1991).
Also favoring the defense is the fact that circumstantial evidence can be probative of the lack of criminal intent. See United States v. Salameh, 152, F.3d 88, 143 (2d Cir. 1998). Moreover, many of the Circuit Courts of Appeals have held that a criminal defendant has the right to introduce evidence that is not directly relevant to an element of the offense where that evidence might tend to negate the existence of an element of the offense, such as intent or willfulness. United States v. Hurn 368 F.3d 1359, 1364-65 (11th Cir. 2004).
Thus, Mak’s contention that he was unaware of the fact that the “technical data” he was sharing with others was not in the “public domain” would seem to be a constitutionally protected defense. Such a defense would clearly demonstrate that he did not intentionally violate a known legal duty. In fact, Mak introduced legally acceptable circumstantial evidence in the form of expert witnesses demonstrating that he did not know the information was “technical data” and not in the “public domain.” Unfortunately, the court’s jury instructions completely stripped this defense of its persuasiveness. So instead of having the jury deliberate the matter, the court determined the issue for them.
In its jury instructions the court stated the following in number 16:
“You are instructed that the information in the Solid State document and the Q.E.D. document is required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense articles. You must accept this fact as true, regardless of whether you heard any witness testify to the contrary.”
And the following from instructions 20 and 23:
That the government was not required to prove that “the defendant had read, was aware of, or had consulted the specific regulations governing his activities,” and that in “making a determination of whether the defendant had the requisite intent, [the jury] should consider the totality of all relevant circumstances.”
The contention on appeal is that the trial court wrongfully rejected Mak’s recommended jury instruction on willfulness, an instruction that would have given the jury a realistic opportunity to deliberate willfulness with respect to the “public domain” determination it was asked to consider:
“Information which is in the public domain does not constitute technical data and therefore is not subject to the export controls of the United States Munitions List. Even if you determine that any of the items at issue in Counts two, three or four were not in the Public Domain, you the jury must consider whether Mr. Chi Mak believed the items were in the Public Domain in order to determine whether he willfully and knowingly exported defense articles.”
With instruction 16 the trial court shifted the entire debate away from the content of the “technical data” because the court judicially recognized that fact in favor of the Government. The instruction caused even more harm to the defense because it told the jury to totally disregard Mak’s expert witnesses on the issue of technical data and only focus on the whether the information was in the public domain. The cumulative impact of the court’s instructions effectively counseled the jury to disbelieve Mak’s lack of intent, at least on the premise that he did not know the information was “technical data.”
Due to the court’s instructions, the only factual issue left for the jury to deliberate upon was whether the information was in the “public domain.” Although the court’s instructions specifically counsel the jury to disregard a significant part of Mak’s constitutionally recognized willfulness defense, there is no accompanying instruction highlighting for the jury that it could still apply the willfulness defense to the issue of whether the information was in the “public domain.” This harm could have easily been remedied by including Mak’s recommended instructions.
Alas, the only instruction the Ninth Circuit relied upon to dispose of Mak’s claim was the broad catch-all instruction that the jury “should consider the totality of all relevant circumstances.” This, in the Ninth Circuit’s opinion, was enough to undo the severely limiting instructions that harmed the defense in the first place. Sadly, the court seems comfortable with the fact that the jury may have never even fathomed to deliberate upon Mak’s willfulness defense in the context of the “public domain” issue, a limitation of Mak’s constitutionally recognized defense created by the court itself.
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.
The Arms Export Control Act Withstands Constitutionality Challenge in Ninth Circuit Part 1
On June 21, 2012 a three judge panel of the Ninth Circuit upheld the constitutionality of the Arms Export Control Act (AECA) in United States v. Chi Mak. Mak was ultimately convicted of one count of conspiracy to violate the AECA, two counts of attempting to violate the AECA, and one count of lying to a federal agent.
Mak appealed his conviction, claiming violations of his rights under the First, Fifth, and Sixth Amendments, and the Ex Post Facto Clause. Mak lost on each claim he made, demonstrating the difficulties of calling into question the constitutionality of a statute that pertains to the national security and foreign interests of the United States.
The AECA regulates the export and import of “defense articles” and “defense services” out of and into the United States. 22 U.S.C. § 2778. Section 2778(a) of the AECA authorizes the President: (1) to designate those defense articles and services to be included on the U.S. Munitions List (USML); (2) to require licenses for the export of items on the USML; and (3) to promulgate regulations for the import and export of such items on the USML. Id.
The Directorate of Defense Trade Controls (DDTC), within the United States Department of State, promulgates regulations under the AECA, known as ITAR. 22 C.F.R. § 120–30. ITAR defines the USML, which consists of twenty-one categories of designated defense articles and services that are subject to licensing controls under the AECA. Id. at § 121.1. Unless an exception applies, ITAR requires a license for the export of USML articles and related technical data. 22 C.F.R. §§ 123–125.
Technical data is defined as information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. 22 C.F.R. § 120.10(a)(1). This definition excludes any information in the “public domain.”
Mak asserted a First Amendment “vagueness” claim. The basis of Mak’s claim was that the technical information he attempted to export to China was protected speech. Although the AECA is not intended to control the content of “speech,” it does so incidentally. The court disposed of Mak’s First Amendment “vagueness” claim by stating that the restrictions on “technical data” are “content neutral.” Content neutral regulation of speech is permitted under the First Amendment so long as it advances important governmental interests.
In this case, such important interests include the national security and foreign interests of the United States. A munitions list that does not prohibit the export of technical data would be useless because the defense articles could merely be produced overseas.
Of particular concern for defense counsel in Mak’s appeal is his second claim about the jury instructions on “technical data” on the ground that they relieved the Government of its burden of proving that the documents did not fall within the “public domain.” The instructions seem to favor the Government because they are misleading to the jury. The instructions say:
“All technical data is subject to export control. Technical data is information required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense articles. Technical data does not include information in the public domain.” This instruction continues with:
“You are instructed that the information in the Solid State document and the Q.E.D. document is required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense articles. You must accept this fact as true, regardless of whether you heard any witness testify to the contrary.”
Upon reading this instruction it becomes clear that the issue of whether the information was “technical data” was already decided by the court. What’s even more disturbing is the statement that “you must accept this fact as true, regardless of whether you heard any witness testify to the contrary.”
The court disposes of Mak’s claim by relying on another instruction which explains to the jury that if the information was available in the “public domain” that they must acquit Mak on the AECA offenses. Why the court did not require the jury to determine if the information amounted to regulated “technical data” puzzles me. Apparently the Government can simply assert that something is “technical data” and only need to prove that the information was not in the public domain in order to sustain a conviction under the AECA.
Is it so totally inconceivable that something not available in the “public domain” is also not “technical data” that the government need not be required to prove beyond a reasonable doubt that the infomormation actually amounts to “technical data?” It seems unlikely that any corrected instructions would have remedied the situation to such a degree that Mak’s conviction should have been overturned, but the Government should nonetheless be put to the burden of whether the information is in fact “technical data” and not just that it wasn’t in the “public domain.” We will address the additional claims in part II of this post.
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.
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.
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.
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.
Virginia Man Accused of Acting as Unregistered Agent of Syrian Government and Spying on Syrian Protestors in America
Mohamad Anas Haitham Soueid, 47, a resident of Leesburg, Va., has been charged for his alleged role in a conspiracy to collect video and audio recordings and other information about individuals in the United States and Syria who were protesting the government of Syria and to provide these materials to Syrian intelligence agencies in order to silence, intimidate and potentially harm the protestors.
Soueid, aka “Alex Soueid” or “Anas Alswaid,” a Syrian-born naturalized U.S. citizen, was charged by a federal grand jury on Oct. 5, 2011, in a six-count indictment in the Eastern District of Virginia. Soueid is charged with conspiring to act and acting as an agent of the Syrian government in the United States without notifying the Attorney General as required by law; two counts of providing false statements on a firearms purchase form; and two counts of providing false statements to federal law enforcement.
According to the indictment, since March 2011, Soueid has acted in the United States as an agent of the Syrian Mukhabarat, which refers to the intelligence agencies for the Government of Syria, including the Syrian Military Intelligence and General Intelligence Directorate. At no time while acting as an agent of the government of Syria in this country did Soueid provide prior notification to the Attorney General as required by law.
Under the direction and control of Syrian officials, Soueid is accused of recruiting individuals living in the United States to collect information on and make audio and video recordings of protests against the Syrian regime – including recordings of conversations with individual protestors – in the United States and Syria. He is also charged with providing the recordings and other information to individuals working for the Mukhabarat. Soueid and others conspired to use this information to undermine, silence, intimidate and potentially harm those in the United States and Syria who engaged in the protests. The indictment also alleges that Soueid provided information regarding U.S. protestors against the Syrian regime to an individual who worked at the Syrian Embassy in Washington, D.C.
On Aug. 3, 2011, FBI agents interviewed Soueid, and the indictment accuses him of lying to the agents when he denied that he had collected information on U.S. persons and transmitted that information to the government of Syria. In addition, Soueid allegedly made further false statements when he denied to FBI agents that he had directed someone to audio or videotape a conversation, meeting, rally or protest, or that he was aware of any individual taking photographs or videotaping people. He also allegedly made false statements when he denied that he had ever been an agent of the Syrian government or a foreign intelligence officer.
In addition, the indictment alleges that, when purchasing a Beretta pistol on July 11, 2011, Soueid listed a false current residence address on a firearms purchase application and in records that were kept by a licensed firearms dealer.
If convicted, he faces a maximum penalty of 15 years in prison on the conspiracy and foreign agent charges, 15 years in prison on the firearms purchase charges and 10 years in prison on the false statement charges
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. Citizen Indicted for Plotting to Attack Capitol, Pentagon, and U.S. Soldiers
On September 29, 2011, the U.S. Attorney’s Office for the District of Massachusetts indicted Rezwan Ferdaus, a 26 year old Northeastern University physics graduate. The indictment states that Mr. Ferdaus is accused of planning to commit acts of violence against the United States “with the goal of terrorizing the United States, decapitating its ‘military center,’ and killing as many [non-believers] as possible.”
Mr. Ferdaus has been specifically charged with 18 U.S.C. sections 844(f) for attempting to damage or destroy a Federal building, section 2155 for attempting to damage and destroy national-defense premises, section 844(d) for being in receipt and possesion of explosive materials, section 2339A for attempting to provide material support to terrorists, and section 2339B for attempting to provide material support to a designated Foreign Terrorist Organization (FTO). Mr.Ferdaus was also charged with 26 U.S.C. section 5861 for being in receipt of non-registered firearms.
Mr. Ferdaus thought he was meeting with members of al-Queda when in fact the individuals he was meeting with were undercover federal agents. Mr. Ferdaus revealed to federal agents that he extensively planned and took substantial steps to bomb the United States Pentagon and United States Capitol Building using remote controlled aircraft filled with explosives.
Mr. Ferdaus began designing and constructing detonation components for improvised explosive devices (IEDs) using mobile phones. These modified mobile phones were given to the undercover agents by Mr. Ferdaus who thought they were going to be used to kill U.S. soldiers overseas.
Mr. Ferdaus also requested firearms, ammunition, and explosives from the undercover agents whom he thought were al-Queda operatives. They provided him with C-4 explosives, AK-47 assault rifles and grenades. These items were needed for him to carry out a detailed plan to attack the Capitol and Pentagon with remote control aircraft that he shared with the undercover agents on two USB storage devices. The plans were highly detailed and contained “recon” photos of the proposed attack sites. As soon as Mr. Ferdaus was in receipt of these items he was arrested by federal law enforcement in Massachusetts.
If convicted on all counts, Mr. Ferdaus would face up to 80 years in prison and have any property linked to his criminal conduct subject to forfeiture. Had his conduct caused anyone to actually died, Mr. Ferdaus’ would be facing life in prison or even the death penalty.
What is apparent from this indictment is that the federal government is well prepared to deal with threats against the national security of the United States. With undercover agents and a series of effective criminal statutes, would-be terrorists often face many years in prison before their conduct actually harms anyone. However, investigators must conduct their sting operations carefully to ensure the target cannot utilize an entrapment defense.
Entrapment is a complete defense to a criminal charge on the theory that “government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Thus there are two elements to the defense: (1) inducment by the government; and (2) the defendant’s lack of predisposition to engage in the criminal conduct. From the facts alleged in Mr. Ferdaus’ indictment, it seems that an entrapment defense would be unsuccessful because he possessed the disposition to engage in criminal conduct. He authored the plans to attack U.S. buildings and soldiers while the government merely “facilitated” his plans by providing the hardware necessary.
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.
