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93 F.Supp.2d 484 United States District
Court, S.D. New York. UNITED STATES of
America, v. Usama BIN LADEN, a/k/a “Usamah
Bin-Muhammad Bin-Ladin,” a/k/a “Shaykh Usamah Bin-Ladin,” a/k/a
“Abu Abdullah,” a/k/a “Mujahid Shaykh,” a/k/a
“Hajj,” a/k/a “al Qaqa,” a/k/a “the
Director,” a/k/a “the Supervisor,” Muhammad Atef,
a/k/a “Abu Hafs,” a/k/a “Abu Hafs el Masry,”
a/k/a “Abu Hafs el Masry el Khabir,” a/k/a “Taysir,”
a/k/a “Sheikh Taysir Abdullah,” a/k/a “Abu Fatimah,”
Ayman al Zawahiri, a/k/a “Abdel Muaz,” a/k/a “Dr.
Ayman al Zawahiri,” a/k/a “the Doctor,” Mamdouh
Mahmud Salim, a/k/a “Abu Hajer al Iraqi,” a/k/a “Abu
Hajer,” Khaled al Fawwaz, a/k/a “Khaled Abdul Rahman Hamad al
Fawwaz,” a/k/a “Abu Omar,” a/k/a “Hamad,”
Ali Mohamed, a/k/a “Ali Abdelseoud Mohamed,” a/k/a “Abu
Omar,” a/k/a “Omar,” a/k/a “Haydara,”
a/k/a “Taymour Ali Nasser,” a/k/a “Ahmed Bahaa Eldin
Mohamed Adam,” Wadih el Hage, a/k/a “Abdus Sabbur,” a/k/a
“Abd al Sabbur,” a/k/a “Wadia,” a/k/a
“Abu Abdullah al Lubnani,” a/k/a “Norman,” a/k/a
“Wa’da Norman,” Fazul Abdullah Mohammed, a/k/a
“Harun,” a/k/a “Harun Fazhl,” a/k/a
“Fazhl Abdullah,” a/k/a “Fazhl Khan,” Mohamed
Sadeek Odeh, a/k/a “Abu Moath,” a/k/a “Noureldine,”
a/k/a “Marwan,” a/k/a “Hydar,” a/k/a
“Abdullbast Awadah,” a/k/a “Abdulbasit Awadh Mbarak
Assayid,” Mohamed Rashed Daoud Al-’Owhali, a/k/a “Khalid
Salim Saleh Bin Rashed,” a/k/a “Moath,” a/k/a
“Abdul Jabbar Ali Abdel-Latif,” Mustafa Mohamed Fadhil, a/k/a
“Mustafa Ali Elbishy,” a/k/a “Hussein,” a/k/a
“Hussein Ali,” Khalfan Khamis Mohamed, a/k/a “Khalfan
Khamis,” Ahmed Khalfan Ghailani, a/k/a “Fupi,” a/k/a
“Abubakary Khalfan Ahmed Ghailani,” a/k/a “Abubakar
Khalfan Ahmed,” Fahid Mohammed Ally Msalam, a/k/a “Fahad M.
Ally,” Sheikh Ahmed Salim Swedan, a/k/a “Sheikh Bahamadi,”
a/k/a “Ahmed Ally,” Defendants. No.
S(6)98CRIM.1023(LBS). April 20, 2000. [*485] COUNSEL: Mary Jo White, New York City by Kenneth Karas,
Patrick Fitzgerald, Michael J. Garcia, Paul Butler, for U.S. Paul McAllister, Charles D. Adler, George Goltzer, New York City,
for Defendant Salim. James Roth, LLoyd Epstein, New York City, for Defendant Mohamed Samuel Schmidt, Joshua Dratel, Deborah I. Meyer, New York City,
for Defendant El Hage. Michael Young, Carl J. Herman, Sandra L. Babcock, New York City,
for Defendant Odeh. Leonard Joy, Robert Tucker, Mark Gombiner, David Bruck, New York
City, for Defendant Al’Owhali. Jeremy Schneider, David Stern, David Ruhnke, New York City, for
Defendant Khamis Mohamed. MEMORANDUM AND
ORDER JUDGE: SAND, District Judge. The Defendants are charged with numerous offenses arising out of
their alleged involvement in an international terrorist organization led by
Defendant Usama Bin Laden (“Bin Laden”) and that organization’s
alleged involvement in the August, 1998 bombings of the United States Embassies
in Nairobi, Kenya and Dar es Salaam, Tanzania. Presently before the Court is
Defendant Al-’Owhali’s motion to dismiss Count One of the
Indictment on the ground that it fails to state an offense. For the reasons set
forth below, that motion is denied. DISCUSSION The factual and legal background of this case is fully set forth
in three prior opinions of this Court, see United States v. Bin Laden, 91 F.Supp.2d 600 (S.D.N.Y.2000); United States v. Bin Laden, 92 F.Supp.2d 225 (S.D.N.Y.2000); United States v. Bin Laden, 92 F.Supp.2d 189 (S.D.N.Y.2000), familiarity with which is
presumed. Count One of the Indictment charges the Defendants with conspiring
to kill United States nationals in violation of 18 U.S.C.
§ 2332(b). [FN1] Section 2332(b) provides federal criminal
penalties for anyone who “outside the United States attempts to kill,
or engages in a conspiracy to kill, United States nationals.” 18
U.S.C.A. § 2332(b) (West 2000). Al-’Owhali argues
that because the conspiracy charged in [*486] Count One is said to have
occurred both outside the United States and within the United States, see Bin
Laden, 91 F.Supp.2d 600, 613 55 n. 24 (S.D.N.Y.2000) (listing overt acts
alleged to have occurred inside the United States), it does not constitute a
violation of § 2332(b) and must, therefore, be dismissed. FN1. Count One also refers to 18 U.S.C.
§ 2332(a). (See Indictment at ¶ 10.) In
response to a defense motion claiming that it was contradictory to charge Count
One as a violation of subsections (a) and (b) of § 2332, the
Government has consented to the striking of all references to
§ 2332(a) from the Indictment and has indicated that it plans
to file a superseding indictment that will eliminate all such references. (See
Government’s Memorandum of Law at 69; Letter from AUSA Karas to the
Court of April 10, 2000.) We are not convinced by Mr. Al-’Owhali’s
argument. The statute at issue, 18 U.S.C. § 2332(b), makes it
a crime to conspire to kill United States nationals while the conspirators are
outside the United States; the Indictment plainly accuses the Defendants of
engaging in precisely that conduct. Each of the Defendants named in Count One
is accused of committing acts in furtherance of the charged conspiracy while
outside the United States. To be sure, two of the named Defendants (El Hage and
Ali Mohamed) as well as some unindicted co-conspirators, are also said to have
committed acts in furtherance of the conspiracy while inside the United States.
But the Court knows of no rule of law, and Mr. Al-’Owhali does not
suggest one, which requires the dismissal of a count because, in addition to
alleging a plain violation of a criminal statute, the count also alleges
conduct that is, arguably, not prohibited by the statute. It is our view that
so long as a count alleges acts committed outside the United States in
furtherance of a conspiracy to kill United States nationals, it alleges a
violation of § 2332(b). A review of § 2332(b)’s legislative
history [FN2] confirms our interpretation. The statute’s unmistakable
purpose was to expand federal criminal authority to provide a basis for
prosecution of certain offenses that Congress believed the United States had
theretofore been unable to prosecute. See H.R. Conf. Rep. No. 99-783, at 87
(1986); 132 Cong. Rec. S1057-01 (daily ed. Feb. 5, 1986) (statement of Sen.
Specter) (indicating that the measure was “urgently needed to fill [a]
critical gap in our antiterrorism arsenal”). [FN3] We believe that the
phrase “outside the United States,” chosen by the drafters to
effectuate that purpose should, therefore, be read as a term of inclusion
rather than as one of limitation. Had Congress chosen to restrict prosecutions
of terrorist conspiracies to those in which no acts in furtherance occurred
within the United States, it clearly could have done so. For example, a
contemporaneous, alternative proposal advanced by Senator Denton—the
International Terrorism Control Act, S.1940, 99th Cong. (1985)— would
only have provided authority to prosecute conspiracies to kill United States
nationals that occurred “totally outside the United States.” See
id. § 3(a). That Congress chose not to enact Senator Denton’s
bill, and, after extensive hearings and long consideration, [FN4] failed to
include a [*487] similar limitation in the bill that would eventually become
§ 2332 provides further support for our conclusion that no
such restriction was intended. FN2. Section 2332(b) originated with a bill
introduced in the Senate by Senator Specter on September 25, 1984. See S. 3018,
98th Cong. (1984). The bill was re-introduced in the 99th Congress, first, as
S. 1373 on June 27, 1985 and, subsequently, as S. 1429 on July 10, 1985. S.
1429, which was virtually identical to the existing provision, was filed by the
Judiciary Committee on February 5, 1986 and passed, unanimously, by the full
Senate on February 19, 1986. The same provision was offered by Senator Specter
as an amendment to the Diplomatic Security and Antiterrorism Act, H.R. 4151,
99th Cong. (1986), that had been passed by the House of Representatives, see
132 Cong. Rec. S8403-03 (daily ed. June 25, 1986) (statement of Sen. Specter),
which amendment was adopted by the Conference committee, and included in the
final version of the bill that was enacted into law as § 1202
of the Diplomatic Security and Antiterrorism Act of 1986, Pub.L. No. 99-399,
100 Stat. 896. FN3. See also 132 Cong. Rec. S1382-01 (remarks
of Sen. Specter) (indicating that purpose of statute is to fill gap in federal
law) (quoting State Department Legal Advisor Abraham Sofaer); 132 Cong. Rec.
S8430-01 (remarks of Sen. Leahy) (indicating that the bill would close a
“serious gap in our arsenal against terrorists”). FN4. See 132 Cong. Rec. S8430-01 (daily ed.
June 25, 1986) (statement of Sen. Specter) (indicating that provision had
“an extensive legislative history,” including a “series
of amendments or perfecting amendments ... introduced over the course of ... 2
years”). CONCLUSION For all of the foregoing reasons, we conclude that Count One
adequately alleges a violation of 18 U.S.C. § 2332(b) and we
therefore deny Mr. Al-’Owhali’s motion. SO ORDERED. Related References U.S. v. Bin Laden, 58 F.Supp.2d 113 (S.D.N.Y. Jun. 30, 1999) (No.
S6 98 CRIM.1023 (LBS) U.S. v. Laden, 92 F.Supp.2d 189 (S.D.N.Y. Mar. 13, 2000) (No. S6
98 CR. 1023 LBS) U.S. v. Bin Laden, 92 F.Supp.2d 225 (S.D.N.Y. Mar 15, 2000) (No.
S(6)98CRIM.1023(LBS)) U.S. v. Bin Laden, 91 F.Supp.2d 600 (S.D.N.Y. Mar 30, 2000) (No. S6
98 CRIM. 1023 LBS) U.S. v. El-Hage, 213 F.3d 74 (2nd Cir.(N.Y.) May 25, 2000) (NO.
00-1025), certiorari denied by El-Hage v. U.S., 531 U.S. 881 (Oct. 2, 2000)
(No. 00-5008) U.S. v. Bin Laden, 109 F.Supp.2d 211 (S.D.N.Y. Aug. 17, 2000) (No.
98 CRIM. 1023 (LBS)) U.S. v. Bin Laden, 116 F.Supp.2d 489 (S.D.N.Y. Oct. 5, 2000) (No.
S(7) 98 CR.1023(LBS)) U.S. v. Bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. Dec. 5, 2000) (No.
S(7) 98 CR.1023(LBS)) U.S. v. Bin Laden, 126 F.Supp.2d 256 (S.D.N.Y. Dec. 11, 2000) (No.
S(7) 98 CR. 1023LBS) U.S. v. Bin Laden, 2001 WL 30061 (S.D.N.Y. Jan. 2, 2001) (No. S(7)
98 CR. 1023(LBS) U.S. v. Bin Laden, 126 F.Supp.2d 290 (S.D.N.Y. Jan. 2, 2001) (No.
S(7) 98 CR. 1023 (LB) U.S. v. Bin Laden, 2001 WL 66393 (S.D.N.Y. Jan. 25, 2001) (No.
S(7) 98 CR. 1023 LBS) U.S. v. Bin Laden, 2001 WL 66314 (S.D.N.Y. Jan. 26, 2001) (No. 98
CR. 1023 LBS) U.S. v. Bin Laden, 2001 WL 102338 (S.D.N.Y. Feb. 6, 2001) (No.
S(7) 98 CR 1023 LBS) U.S. v. Bin Laden, 132 F.Supp.2d 168 (S.D.N.Y. Feb. 16, 2001) (No.
S(7)98CR.1023(LBS)) U.S. v. Bin Laden, 132 F.Supp.2d 198 (S.D.N.Y. Feb. 16, 2001) (No.
S(7)98CR.1023(LBS)) U.S. v. Laden, 2001 WL 263382 (S.D.N.Y. Mar. 14, 2001) (No.
S(7)98CR.1023(LBS)) U.S. v. Laden, 2001 WL 276714 (S.D.N.Y. Mar. 20, 2001) (No. 98 CR.
1023 (LBS)) U.S. v. Salim, 151 F.Supp.2d 281 (S.D.N.Y. Mar. 29, 2001) (No. 01
CR 02 DAB) U.S. v. Laden, 2001 WL 310614 (S.D.N.Y. Mar. 30, 2001) (No. S(7)98
CR.1023(LBS)) U.S. v. Bin Laden, 146 F.Supp.2d 373 (S.D.N.Y. May 29, 2001) (No.
S7 98 CR 1023 LBS) U.S. v. Bin Laden, 156 F.Supp.2d 359 (S.D.N.Y. Jul. 23, 2001) (No.
S(7) 98 CR 1023 LBS) U.S. v. Salim, 2001 WL 831252 (S.D.N.Y. Jul. 24, 2001) (No. 01 CR
02 DAB) U.S. v. Mahmud Salim, 2001 WL 963998 (S.D.N.Y. Aug. 23, 2001) (No.
S1 01 CR. 02(DAB)) U.S. v. Salim, 2001 WL 967699 (S.D.N.Y. Aug. 24, 2001) (No. S1 01
CR. 02 (DAB)) U.S. v. Bin Laden, 160 F.Supp.2d 670 (S.D.N.Y. Aug. 24, 2001) (No.
S(7) 98 CR. 1023 LBS) U.S. v. Bin Laden, 2001 WL 1160604 (S.D.N.Y. Oct. 02, 2001) (No.
S(7)98 CR.1023(LBS)) U.S. v. Salim, 189 F.Supp.2d 93, 58 Fed. R. Evid. Serv. 1544
(S.D.N.Y. Mar. 11, 2002) (No. S1 01 CR. 02 (DAB)) U.S. v. Salim, 287 F.Supp.2d 250 (S.D.N.Y. Sep. 25, 2003) (No. 01
CR. 002DAB) U.S. v. Bin Laden, 2005 WL 287404 (S.D.N.Y. Feb. 7, 2005) (No. S7R
98CR1023KTD) U.S. v. Bin Laden, 397 F.Supp.2d 465 (S.D.N.Y. Nov. 2, 2005) (No.
S7R 98 CR. 1023(KTD)) |