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U.S. v. MARZOOK

November 17, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
MOUSA MOHAMMED ABU MARZOOK, MUHAMMAD HAMID KHALIL SALAH, and ABDELHALEEM HASAN ABDELRAZIQ ASHQAR, Defendants.



The opinion of the court was delivered by: AMY ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

On August 19, 2004, a Grand Jury returned a multiple-count, Second Superseding Indictment (the "Indictment") against Defendant Abdelhaleem Hasan Abdelraziq Ashqar ("Ashqar" or "Defendant") and his co-defendants, Mousa Mohammed Abu Marzook ("Marzook") and Muhammad Hamid Khalil Salah ("Salah"). Currently before the Court is Ashqar's Motion to Dismiss Count I of the Second Superseding Indictment (the "Motion"). For the reasons stated below, the Court denies Ashqar's motion.

BACKGROUND

  The Indictment charges that Ashqar along with his co-defendants and certain unindicted co-conspirators violated 18 U.S.C. § 1962(d) of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), which makes it "unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of [18 U.S.C. § 1962]." (R. 59-1, Second Superseding Indictment at ¶¶ 1-24CCC.) The Indictment further alleges that Defendants "did conspire to violate [18 U.S.C. § 1962(c)], that is, to conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity . . . through multiple acts indictable" under various federal and state laws. (Id. at ¶ 3.) See also 18 U.S.C. § 1962(c) (providing that "[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt"). The Indictment specifically identifies acts indictable under 720 ILCS 5/8-2 and 720 ILCS 5/9-1 (first degree murder and conspiracy to commit first degree murder), 720 ILCS 5/8-1.1 (solicitation of first degree murder), and 18 U.S.C. § 1956 (money laundering and attempt and conspiracy to do so), among other statutes. (R. 59-1, Second Superseding Indictment at ¶ 3.)

  In support of this charge, the Indictment alleges the following facts. Beginning no later than about August 1988, Ashqar began working on behalf of Hamas, an enterprise having the alleged common purpose of "forcing the State and citizens of Israel to cede physical and political control over the lands comprising Israel, the West Bank, and the Gaza Strip, and the replacement of the Israeli political authority over these lands with an Islamic government, through means that included the promotion and execution of acts of terrorism." (R. 59-1, Second Superseding Indictment at ¶¶ 2, 24B.) From at least as early as 1989 through January 1993, Ashqar along with certain co-conspirators utilized various accounts at financial institutions throughout the United States to transfer large sums of money from various sources abroad through the United States to Israel and elsewhere. (Id. at ¶¶ 24M(i), 24M(iv) (describing these transfers by location, approximate date, and monetary amount).) The Indictment further alleges that, in or about August 1993, Ashqar "debriefed" a co-conspirator who, along with Salah, had visited the Middle East on behalf of Hamas, (id. at ¶ 24BB), and that Ashqar facilitated Co-conspirator A's reintegration into the community and Hamas in the United States. (Id. at ¶ 24DD.) These efforts included the transfer of over $15,000 to Co-conspirator A, as well as a proposal to other Hamas members that Co-conspirator A be included in a secret meeting of Hamas members to take place in Philadelphia, Pennsylvania. (Id.)

  The Indictment further alleges that, as part of his role as a Hamas administrator, Ashqar produced, collected, and disseminated numerous documents and information in furtherance of Hamas's goals in the United States and abroad, including goals related to the Hamas command and control structure, recruitment of new members for Hamas, progress reports of Hamas plans and activities, and control and minimization of damage to Hamas from the arrest and loss of members involved in terrorist actions. (Id. at ¶ 24EE.) In particular, in furtherance of the conspiracy, Ashqar allegedly collected and, at times, disseminated documents relating to:
(1) Hamas members' aliases, phone numbers, and addresses;
(2) the death or capture of various Hamas members;
(3) Hamas terrorist attacks;
(4) security training and directives, including counter-surveillance techniques, secrecy protocols, and interrogation issues;
(5) confessions provided by captured Hamas members;
(6) assessments and analysis on the state of Hamas in the West Bank and Gaza Strip as well as abroad;
(7) minutes or summaries of meetings between Hamas members and other organizations and groups, including the Palestinian Liberation Organization, Fatah, the Palestinian Front for the Liberation of Palestine, and the Palestinian Islamic Jihad, as well as meetings between Hamas members and foreign countries; (8) information the Israelis obtained regarding Hamas membership and activities;
(9) Israeli indictments against various Hamas members;
(10) The movement of money for Hamas activities;
(11) The Hamas deportees who were deported to Lebanon in December 1992, including statements made by co-Defendant Marzook on the issue of the deportees;
(12) Opposition to peace attempts between the State of Israel and the Palestinians;
(13) A secret meeting of Hamas members in Philadelphia, Pennsylvania;
(14) Resistance to Israeli occupation of the West Bank and Gaza Strip and Hamas's relationship with other pro-Palestinian organizations;
(15) Policies and activities of various terrorist organizations or anti-Israeli groups; and
(16) Hamas statements distributed by the Islamic Association for Palestine.
(Id.)
  As part of his role as a Hamas administrator and in furtherance of the RICO conspiracy, the Indictment alleges that Ashqar participated in a number of phone conversations related to Hamas activity both in the United States and abroad. (Id. at ¶ 24FF.) These phone conversations sometimes occurred in code. (Id.) These phone calls were in furtherance of Hamas's goals in the United States and abroad, including goals related to the Hamas command and control structure, recruitment of new members of Hamas, progress reports of Hamas plans and activities, and control and minimization of damage to Hamas from the arrest and loss of members involved in terrorist actions. (Id.) In particular, Ashqar allegedly participated in phone conversations related to:
(1) Hamas members' contacts with the United States government;
(2) Hamas's need for financial assistance in order to further its goals;
(3) The movement of money for Hamas; (4) The Hamas members who were deported to Lebanon in December 1992;
(5) Management of Hamas and Hamas personnel within the Gaza Strip and West Bank, including specific conversations related to killing a Hamas member who was not obeying orders, and killing Hamas members collaborating with Israelis;
(6) Management of Hamas and Hamas members in the United States;
(7) Meetings Ashqar was to have with Co-conspirator G and Sheik Jamil Hamami in January and March 1994;
(8) A secret meeting of Hamas members in Philadelphia, Pennsylvania in October 1993;
(9) The affairs and activities of Co-conspirator A;
(10) Hamas terrorist operations and terrorists;
(11) Hamas organizational initiatives in the United States;
(12) Opposition to peace attempts between the State of Israel and Palestinians;
(13) Hamas founder Sheik Ahmed Yassin;
(14) Hamas's views on the PLO, Yasir Arafat, and anti-Israeli organizations; and
(15) The affairs and activities of co-Defendant Salah.
(Id.)

  The Indictment further alleges that in October 1993, Ashqar met with various Hamas members in Philadelphia to discuss Hamas issues including Hamas's illegal activities inside the United States and abroad and lessons learned from the capture of Salah. (Id. at ¶ 24GG.) In March 1994, Ashqar met in Oxford, Mississippi, with two other Hamas members, including co-conspirator Sheik Jamil Hamami, to discuss Hamas issues and the transfer of money for Hamas activities overseas. (Id. at ¶ 24HH.)

  The Indictment further alleges that, in February 1998, Ashqar, despite a grant of immunity, refused to testify before a federal Grand Jury sitting in New York, New York, and continued to refuse to testify into August 1998, in an effort to hide his and co-conspirators' activities on behalf of Hamas, and to continue his activities on behalf of Hamas undeterred. (Id. at ¶ 24KK.) In June 2003, Ashqar, despite a grant of immunity and an order compelling his testimony, refused to testify before a Grand Jury sitting in Chicago, Illinois, and continued to refuse to testify into October 2003, in an effort to hide his and co-conspirators' activities on behalf of Hamas, and to continue his activities on behalf of Hamas undetected. (Id. at ¶ 24CCC, Count IV, Count V.)

  ANALYSIS

  Fed.R.Crim.P. 12(b)(2) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." "When considering a motion to dismiss an indictment, a court assumes all facts in the indictment are true and must `view all facts in the light most favorable to the government.'" United States v. Segal, 299 F. Supp. 2d 840, 844 (N.D. Ill. 2004) (quoting United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999)). "An indictment is constitutionally sufficient if it states all of the elements of the offense charged, informs the defendant of the nature of the charges so that he can prepare a defense, and enables the defendant to assess any double jeopardy problems the charge may raise." United States v. Stout, 965 F.2d 340 (7th Cir. 1992). A court must consider the indictment "as a whole to determine if it meets [these] requirements." Id. In addition, "arguments raised in a motion to dismiss that rely on disputed facts should be denied." United States v. Caputo, 288 F. Supp. 2d 912, 916 (N.D. Ill. 2003) (citing United States v. Shriver, 989 F.2d 898, 906 (7th Cir. 1992). But "[a]n indictment, or a portion thereof, may be dismissed if it is otherwise defective or subject to a defense that may be decided solely on issues of law." United States v. Labs of Virginia, Inc., 272 F. Supp. 2d 764, 768 (N.D. Ill. 2003); see also United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005) ("[t]he propriety of granting a motion to dismiss an indictment under [Fed.R.Crim.P.] 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact. If a question of law is involved, then consideration of the motion is generally proper." (citation omitted)). With these principles in mind, the Court turns to the merits of Defendant's Motion.

  I. Defendant's First Amendment Rights to Freedom of Speech and Association

  Ashqar contends that the Indictment is "nothing short of an attempt by the government to criminalize [Ashqar's] political and social views solely because those views which he advocates are in opposition to the current Mid-East policy of the United States and this country's support of Israel." (R. 264-1; Def.'s Mem. in Supp. of Mot. to Dismiss at 10.) Ashqar further contends that, as a result, the Indictment impinges on his First Amendment rights of freedom of speech and association, even though "Count One admittedly contains numerous allegations of conduct that are not protected [under the First Amendment]." (Id. at 11 (contending further that the Indictment "lumps Ashqar's protected freedoms of association and speech with unprotected conduct by others and, in turn, seeks to criminalize Ashqar's First Amendment right to speech and association").) In the alternative, Ashqar argues that the Court must apply the doctrine of strictissimi juris to address the alleged constitutional infirmities in the Indictment.

  Ashqar bases his primary argument on the principle that the First Amendment prohibits criminal liability based on an individual's mere association with a group. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918-19, 102 S. Ct. 3409, 3429, 73 L. Ed. 2d 1215, 1240 (1982); Scales v. United States, 367 U.S. 203, 224-25, 81 S. Ct. 1469, 1484, 6 L. Ed. 2d 782, 799 (1961) (finding unconstitutional a statute making it unlawful to be a knowing member in any organization that advocated the violent overthrow of the United States because "[i]n our jurisprudence guilt is personal" and "[m]embership without more, in an organization engaged in illegal advocacy is insufficient to satisfy personal guilt"). This principle recognizes that an individual cannot be punished for mere membership in an organization, even if that organization has legal as well as illegal goals. See Scales, 367 U.S. at 229, 81 S. Ct. at 1486, 6 L. Ed. 2d at 802 (a "blanket prohibition of association with a group having both legal and illegal aims . . . [would pose] a real danger that legitimate political expression or association would be impaired"). Thus, any statute prohibiting mere association with such an organization must require a showing that the defendant specifically intended to further the organization's unlawful goals. See Boim v. Quranic Literacy Found. for Relief and Devel., 291 F.3d 1000, 1022 (7th Cir. 2002) (the Seventh Circuit "[has] no quarrel with that general proposition or with its corollary, that in order to impose liability on an individual for association with a group, it ...


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