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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.
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.
The Incorporation Transparency and Law Enforcement Assistance Act: The End of Anonymous Corporations and Hidden Owners?
On August 2, 2011 Senators Carl Levin and Chuck Grassley introduced bi-partisan legislation requiring companies to disclose the names of beneficial owners of corporations and limited liability companies. The legislation is intended “to ensure that persons who form corporations in the United States disclose the benficial owners of those corporations, in order to prevent wrongdoers from exploiting United States corporations in ways that threaten homeland security, to assist law enforcement in detecting, preventing, and punishing terrorism, money laundering, and other misconduct.”
According to anti-money laundering proponents, law enforcement groups, and financial transparency organizations, the legislation is a crucial step toward strengthening law enforcement and keeping criminal and tax evading money out of the U.S. As reported by the Center for International Policy’s Global Financial Integrity, “Criminals, kleptocrats, and tax evaders from around the world are taking advantage of . . . U.S. law to hide and launder illicit money . . . [because] financial opacity puts law enforcement at a major disadvantage. Too often cases are dropped, or investigations are closed, due to a lack of evidence connecting the illicit funds held in accounts owned by anonymous corporations to the criminal owners of those corporations.”
The problem identified by this piece of legislation is two-fold: First, that it is too easy to gain access to financial services in the U.S. through anonymous U.S. corporations; and second, that it is too difficult for law enforcement groups to figure out the real owners behind anonymous corporations. Therefore, this legislation imposes both civil and criminal penalties on anyone who (1) knowingly provides, or attempts to provide, false or fraudulent beneficial ownership information; (2) willfully fails to provide complete or updated beneficial ownership information; and (3) knowingly discloses the existence of a subpoena, summons or other request for beneficial ownership information.
However, the true crux of this legislation is that it prohibits States or corporate formation agents from knowingly failing to obtain or maintain credible, legible, and updated beneficial ownership information, including any required identifying photographs. The federal government will be able to require this from any state receiving funds from the Department of Homeland Security even though corporate formation has traditionally been a matter of state law.
States must be in full compliance with the requirements of this law no later than 2014. They must implement an incorporation system that follows specific guidelines “to protect the security of the United States from corporations and limited liability companies with hidden owners.”
In addition to any civil or criminal penalties that may be imposed by a State, any person who violates the requirements of this legislation can be fined up to $10,000 by the United States and imprisoned for up to 3 years. Thus the federal government continues to impose upon U.S. persons more regulations and criminal statutes by leveraging the U.S. economy in the name of national security and transparency. Now, when forming corporations or LLCs U.S. persons must be wary of significant federal requirements (with the risk of imprisonment) in an area of law that has traditionally been left to the 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 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.
