2003 WL 22670336 (9th Cir.)

For opinion see 426 F.3d 1150, 427 F.3d 646, 412 F.3d 1071, 392 F.3d 1031

United States Court of Appeals Ninth Circuit.

UNITED STATES OF AMERICA, Plaintiff/Appellant,

v.

Roya RAHMANI, Et Al, Defendants/Appellees.

No. 02-50355.

February 11, 2003.

On Appeal from the United States District Court for the Central District of California

Brief for Appellee Roya Rahmani

Abbe David Lowell, Sarah Loope, Manatt, Phelps and Phillips, 1501 M Street, N W, Washington, D C 20005-1702, (202) 463-4300, Jack Dicanio, Anthony Pacheco, Proskauer Rose, LLP, 2049 Century Park East, Suite 3200, Los Angeles, CA 90067-3206, (310) 557-2900, Stephen P Berzon, Scott A Kronland, Rebekah B Evenson, Altshuler, Berzon, Nussbaum, Rubin & Demain, 177 Post Street, Suite 300, San Francisco, CA 94108, (415) 421-7151, Attorneys for Appellee Roya Rahmam

*i TABLE OF CONTENTS

ISSUES PRESENTED ... 1

STATEMENT OF JURISDICTION ... 2

STATEMENT OF THE CASE ... 2

STATEMENT OF FACTS ... 3

1. Nature of the case ... 3

2. The pertinent statutory scheme ... 5

3. The 1997 designation of the PMOI ... 7

4. The 1999 redesignation of the PMOI ... 9

5. The decision below ... 11

STANDARD OF REVIEW ... 12

SUMMARY OF THE ARGUMENT ... 12

ARGUMENT ... 15

I A criminal defendant has the right to challenge the constitutionality of the statute she is accused of violating ... 15

II The indictment violates the First Amendment because the defendant is precluded from challenging the "terrorist" designation ... 17

A The First Amendment prohibits the government from criminalizing the provision of financial support to groups that are not "terrorist organizations" ... 19

B. The defendant has a constitutional right to demonstrate that the prosecution violates the First Amendment ... 23

*ii III The indictment violates the First Amendment because the "terrorist" designation procedures lack due process protections necessary to ensure reliability ... 32

IV The statute does not permit a designation made through constitutionally-deficient procedures to serve as the predicate for a criminal prosecution ... 40

V The Due Process Clause prevents the government from making the administrative "terrorist" designation binding on a criminal defendant ... 45

VI Dismissal of the indictment would not have the broad consequences for national security that the government claims ... 50

CONCLUSION ... 54

*iii TABLE OF AUTHORITIES

CASES

32 County Sovereignty Committee v. Department of State, 292 F.3d 797 (D.C. Cir. 2002) ... 52

Armstrong v. Manzo, 380 U.S. 545 (1965) ... 34

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ... 33

Bell v. United States, 462 U.S. 357 (1983) ... 17

Bouie v. City of Columbia, 378 U.S. 347 (1964) ... 43

Buckley v. Valeo, 424 U.S.1 (1976) ... 19, 43, 44

California Fair Political Practices Com'n v. Service Employees Intern. Union, 505 U.S. 1230 (1992) ... 20

Carmel v. Texas, 529 U.S. 513 (2000) ... 39

Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175 (1968) ... 34

Charter Communications, Inc. v County of Santa Cruz, 304 F.3d 927 (9th Cir. 2002) ... 12

Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290 (1981) ... 19

*iv Citizens for Abatement of Noise v. Airports Authority, 917 F.2d 48 (D.C. Cir. 1990) ... 43

Cleveland Board of Education v Loudermille, 470 U.S. 532 (1985) ... 34

Custis v United States, 511 U.S. 485 (1994) ... 31

DeBartolo Corp v. Florida Gulf Coast Bldg. & Constr Trades Council, 485 U.S. 568 (1988) 1 ... 42

Estep v. United States, 327 U.S. 114 (1946) ... 46

Flemming v. Oregon Bd. of Parole, 998 F.2d 721 (9th Cir. 1997) ... 39

Freedman v. State of Maryland, 380 U.S. 51 (1965) ... 33, 35

Goldberg v Kelley, 397 U.S. 254 (1970) ... 34

Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000) ... passim

International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992) ... 20

Lewis v. United States, 445 U.S. 55 (1980) ... 31

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) ... 33

Lovell v. City of Griffin, 303 U.S. 444 (1938) ... 17

*v Marbury v. Madison, 5 U.S. 137 (1803) ... 16

Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964) ... 44

McKinney v. Alabama, 424 U.S. 669 (1976) ... passim

Meyer v. Grant, 486 U.S. 414 (1988) ... 21

National Council of Resistance of Iran v. Department of State, 251 F.3d 192 (D.C. Cir. 2001) ... passim

New York v. United States, 505 U.S. 144 (1992) ... 29

Northern Pipeline Co. v Marathon Pipeline Co., 458 U.S. 50 (1982) ... 43

Padilla v. Terhune, 309 F.3d 614 (9th Cir. 2002) ... 18

People's Mujahedin Organization of Iran v. Department of State, 182 F.3d 17 (D.C. Cir. 1999) ... passim

Riley v. National Federation of Blind, 487 U.S. 781 (1988) ... 20

S D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461 (9th Cir. 2001) ... 42

Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) ... 21

Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) ... 20

*vi Service Employees Int'l Union v. Fair Political Practices Comm'n, 955 F.2d 1312 (9th Cir.) ... 20

Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) ... 33

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) ... 31

Smith v. Scott, 223 F.3d 1191 (10th Cir. 2000) ... 39

Soundgarden v. Eikenberry, 871 P.2d 1050 (Wash. 1994) ... 24

Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) ... 35

State v. Luck, 353 So.2d 225 (La. 1977) ... 24

Staub v. Baxley, 355 U.S. 313 (1958) ... 17

United States v Bozarov, 974 F.2d 1037 (9th Cir. 1992) ... 16, 30, 48

United States v Gaudreau, 860 F.2d 357 (10th Cir. 1988) ... 38, 43

United States v. Jimenez-Marmolejo, 104 F.3d 1083 (9th Cir. 1996) ... 48

United States v. Kokinda, 497 U.S. 720 (1990) ... 20

United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990) ... 30

*vii United States v. Mendoza-Lopez, 481 U.S. 828 (1987) ... 14, 45, 46, 47, 48

United States v. Proa-Tovar, 975 F.2d 592 (1992) ... 48

United States v. Raines, 362 U.S. 17 (1960) ... 16

United States v. Robel, 389 U.S. 258 (1967) ... 54

United States v. Schmidt, 604 F.2d 236 (3d Cir. 1979) ... 26

United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970) ... 26, 49

Vance v. Universal Amusement Co, 445 U.S. 308 (1980) ... 34

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1983) ... 38, 43

Watkins v. United States, 354 U.S. 178 (1957) ... 16

Weaver v. Maass, 53 F.3d 956 (9th Cir. 1995) ... 39

Wisconsin v. Constantineu, 400 U.S. 433 (1971) ... 46

STATUTES AND CONSTITUTIONAL PROVISIONS

18 U.S.C. § 2339A ... 15

18 U.S.C. § 2339A ... 18, 51

*viii 18 U.S.C. § 2339B ... passim

18 U.S.C. § 2339B(a)(1) ... 2, 17

50 U.S.C.App. § 2412 ... 30

8 U.S.C. §1182(a)(3)(B) ... 5

8 U.S.C. § 1182(a)(3)(B)(ii)(V) ... 5

8 U.S.C. § 1189(a)(1) ... 5

8 U.S.C. § 1189(a)(1)(B) ... 5

8 U.S.C. § 1189(a)(2)(B)(i) ... 6

8 U.S.C. § 1189(a)(4) ... 6

8 U.S.C. § 1189(a)(8) ... 7, 41

8 U.S.C. §1189(b)(1) ... 6

8 U.S.C. § 1189(b)(2) ... 6

8 U.S.C. § 1189(b)(3) ... passim

8 U.S.C. § 1189(c)(2) ... 6

Pub. L. 107-56 § 810(d), 115 Stat. 380 (2001) ... 5

U.S. Const. Amend. I ... passim

U.S. Const. Amend. V ... passim

U.S. Const. Art. I, § 9 ... 39,42

*ix MISCELLANEOUS

Lawrence Tribe, American Constitutional Law, 1054-1055 (2d Ed. 1988) ... 22

Restatement (Second) of Judgments § 83(2) ... 26

*1 ISSUES PRESENTED

The Government charged Roya Rahmani with violating a statute, 18 U.S.C. § 2339B, that makes it a crime to provide financial support to an organization designated by the Government as a "foreign terrorist organization." The issues presented are as follows:

1. Whether the District Court correctly ruled that Ms. Rahmani has the right to challenge the constitutionality of the statute she is accused of violating.

2. Whether the First Amendment requires dismissal of the indictment because the statute makes Ms. Rahmani criminally liable for providing financial support to an organization designated by the Government as a "foreign terrorist organization" yet prohibits Ms. Rahmani from challenging, in any forum, whether the organization actually is a "foreign terrorist organization."

3. Whether the First Amendment requires dismissal of the indictment because the statute makes Ms. Rahmani criminally liable for providing financial support to an organization designated by the Government as a "foreign terrorist organization" yet the statutory procedure for designating "foreign terrorist organizations" does not meet basic due process standards necessary to ensure the accuracy of the designation.

*2 4. Whether the statute permits a "terrorist" designation made through constitutionally-deficient procedures to serve as the predicate for a criminal prosecution.

5. Whether the Due Process Clause requires dismissal of the indictment because the statute makes Ms. Rahmani criminally liable for providing financial support to an organization determined in an administrative proceeding to be a "foreign terrorist organization" yet prohibits Ms. Rahmani from obtaining judicial review of that administrative determination.

STATEMENT OF JURISDICTION

The statement of jurisdiction in the Government's opening brief is correct. Gov. Br. at 2-3.

STATEMENT OF THE CASE

On March 13, 2001 Roya Rahmani and her co-defendants were indicted in the Central District of California for allegedly violating 18 U.S.C. § 2339B(a)(l) by providing financial support to an organization designated by the Secretary of State as a "foreign terrorist organization." ER 1-16. Ms. Rahmani and her co-defendants moved to dismiss the indictment on October 4, 2001. CR 139. On June 21, 2002 the District Court granted the defendants' motions to dismiss. ER 21-39. The Government filed a notice of appeal on July 12, 2002. ER 40.

*3 STATEMENT OF FACTS

1. Nature of the Case

Roya Rahmani was granted political asylum in the United States after she fled persecution by the Iranian government, a fundamentalist dictatorship that President George W. Bush dubbed part of the "axis of evil" because it is the most active state sponsor of terrorism in the world. The group to which Ms. Rahmani is charged with providing financial support is the Mujahedin-e Khalq ("MEK"), an Iranian opposition group commonly known as the People's Mujahedin Organization of Iran ("PMOI"). ER 2.

The MEK/PMOI (hereinafter referred to as PMOI) seeks a transition from the fundamentalist dictatorship that presently rules Iran to a secular democratic government. The PMOI is the only major Muslim organization in the Middle East that supports the Middle East peace process, and the PMOI aided the United States' investigation into the bombing of a Jewish community center in Argentina. CR 140 at 72 (letter from U.S. Representative Elton Gallegly applauding "the People's Mojahedin of Iran, which put the lives of their members as well as their resources at risk in order to gather this valuable information.").

The Secretary of State's designation of the PMOI as a "foreign terrorist organization" is disputed by the PMOI and has proven to be controversial. On *4 November 16, 1998, 220 members of the U.S. House of Representatives issued a statement calling the PMOI "a legitimate opposition to the repressive Iranian regime" and urging removal of the PMOI from the Government's list of terrorist groups. CR 78 at 16. This statement calls the Secretary's initial 1997 designation of the PMOI as a terrorist group the result of a "wrong-headed" and ultimately failed "good will gesture to Tehran and its [then] newly elected moderate president." Id See also Removal of Terror Group is Sought, Washington Post, Nov. 23, 2002, at A11 (150 members of Congress "issued a statement this week saying Mujahedin-e-Khalq constitutes a legitimate democratic opposition and should not be on the list" of terrorist organizations). [FN1]

FN1. See also CR 140, at 62 (August 31, 2001 letter from U.S. Representatives Ileana Ros-Lehtinen and Gary L. Ackerman to Secretary of State urging removal of PMOI from list of terrorist organizations, and stating that the purpose of PMOI "appears to be to replace the tyrannical government in Iran with one that is open, more friendly to the West, respectful of women's rights and human rights in general, and supportive of the Middle East peace process."); CR 140 at 59 (28 Senators call for State Department to "look afresh towards the possibilities that exist within Iran's democratic opposition, including the People's Mojahedin.").

Nonetheless, under the statutory scheme, as set forth below, it is entirely irrelevant to the charges against Ms. Rahmani whether the PMOI actually is a legitimate opposition group or a terrorist organization. Nor does the indictment *5 allege that Ms. Rahmani had any knowledge or intent that funds would be used to support terrorist activities, or that funds were actually used for that purpose.

2. The Pertinent Statutory Scheme

The statute Ms. Rahmani is charged with violating, 18 U.S.C. § 2339B, makes it a crime punishable by up to 10 years in prison for individuals to provide "material support or resources" to a group designated by the Secretary of State as a "foreign terrorist organization." [FN2]

FN2. The maximum penalty for violation of 18 U.S.C. § 2339B was increased to 15 years imprisonment in 2001. See Pub. L. 107-56 § 810(d), 115 Stat. 380 (2001).

The Secretary has authority to designate a foreign group as a terrorist organization if the Secretary concludes that the group engages in "terrorist activity" and that this activity is a threat to the "national security of the United States." 8 U.S.C. § 1189(a)(l). The statute places no restriction on the type of information the Secretary can use in making the designations. For purposes of this statute, the term "terrorist activity" is defined broadly to include, for example, any use of any firearm against any person or property, anywhere in the world, unless for personal monetary gain. [FN3] Likewise, "national security" is defined broadly to *6 include "the national defense, foreign relations, or economic interests of the United States." 8 U.S.C. § 1189(c)(2).

FN3. See 8 U.S.C. § 1189(a)(l)(B) (terrorist activity is defined by 8 U.S.C. § 1182(a)(3)(B)); 8 U.S.C. § 1182(a)(3)(B)(ii)(V) (terrorist activity includes "the use of any ... firearm (other than for mere personal monetary gain)... with intent to endanger, directly or indirectly, the

safety of one or more individuals or to cause substantial damage to property").

The statute does not require the Secretary to notify an organization before designating it a "foreign terrorist organization," and the designation becomes effective upon publication in the Federal Register. 8 U.S.C. § 1189(a)(2)(B)(i). The designation lasts for two years and is subject to renewal by the Secretary. 8 U.S.C. § 1189(a)(4). A designated organization may seek judicial review of the designation in the United States Court of Appeals for the D.C. Circuit. 8 U.S.C. § 1189(b)(l). Review is limited to the administrative record, however, and "the Government may submit, for ex parte and in camera review, classified information used in making the designation." 8 U.S.C. § 1189(b)(2). Because the administrative record is prepared without notice to the organization, the record does not include anything but information submitted by the Government. [FN4] The *7 D.C. Circuit is required to "hold unlawful and set aside" any designation it finds to be "contrary to constitutional right." 8 U.S.C. § 1189(b)(3).

FN4. As explained below, the D.C. Circuit later required the Secretary of State to make certain changes to this designation procedure for organizations that have a presence in the United States (National

Council of Resistance of Iran v. Department of State, 251 F.3d 192 (D.C. Cir. 2001)) but those procedures were not in place when the designations at issue in this case were made.

Aside from this procedure by which a listed organization can seek review of the designation in the D.C. Circuit, the statute does not permit a challenge to the designation. Defendants in criminal actions brought under 18 U.S.C. § 2339B are specifically precluded from raising "any question concerning the validity of the issuance of such designation as a defense or an objection at any trial or hearing." 8 U.S.C. § 1189(a)(8).

3. The 1997 Designation of the PMOI

The Secretary of State first designated the PMOI as a foreign terrorist organization in 1997. In accordance with the statute, the PMOI sought judicial review of that decision in the D.C. Circuit. People's Mujahedin Organization of Iran v. Department of State, 182 F.3d 17 (D.C. Cir. 1999) ("PMOII).

The D.C. Circuit recognized that the statutory scheme is unusual because, "unlike the run-of-the mill administrative proceeding, here there is no adversary hearing, no presentation of what courts and agencies think of as evidence, no advance notice to the entity affected by the Secretary's internal deliberations." PMOI I, 182 F.3d at 19. The D.C. Circuit also stated that under the statute the Secretary may designate an organization as a terrorist group solely "on the basis of *8 third hand accounts, press stories, material on the Internet or other hearsay regarding the organization's activities." Id. Such material, the Court observed, "is certainly not evidence of the sort that would normally be received in court. It is instead material that the Secretary of State compiled as a record, from sources named and unnamed, the accuracy of which we have no way of evaluating." Id.

Nonetheless, the D. C. Circuit concluded that the PMOI had no constitutional "presence" in the United States and therefore "has no constitutional rights, under the due process clause or otherwise" that could have been violated by the designation. Id. at 22. Contrary to the Government's assertion, the PMOI I Court did not "flatly reject" the PMOI's claims that the PMOI was wrongly labeled a terrorist group. Gov. Br. at 10. Instead, the Court concluded:

For all we know, the designation may be improper because the Secretary's judgment that the organization threatens our national security is completely irrational and devoid of any support. Or her finding about national security may be exactly correct. We are forbidden from saying. That we cannot pronounce on the question does not mean that we must assume that the Secretary was right. It means we cannot make any assumption one way or another.

Id. at 23.

The D.C. Circuit also specifically reserved the question, not before it, of "whether § 1189 deprives those in the United States of some constitutional right if *9 they are members of, or wish to donate money to, an organization designated by the Secretary." Id. at 22 n.6.

4. The 1999 Redesignation of the PMOI

The Secretary redesignated the PMOI as a terrorist group in 1999, and the PMOI again sought review in the D.C. Circuit. National Council of Resistance of Iran v Department of State, 251 F.3d 192 (D.C. Cir. 2001) ("PMOI II"). The statutory procedures for designating foreign terrorist organizations were not changed between 1997 and 1999. The Secretary's 1999 designation of the PMOI, however, included the designation of the National Council for Resistance in Iran ("NCRI") as a PMOI "alias." Id. at 197. The D.C. Circuit concluded that the NCRI had a constitutional presence in the United States and therefore held that the PMOI/NCRI could challenge the constitutionality of the 1999 designation. Id. at 202.

The D.C. Circuit examined the statutory procedures for designating "foreign terrorist organizations" that it had addressed in PMOI I, and held that they violate the Due Process Clause because the organization is not provided with notice and the opportunity to be heard before the designation is made:

The unique feature of this statutory procedure is the dearth of procedural participation and protection afforded the designated entity. At no point in the proceedings establishing the administrative record *10 is the alleged terrorist organization afforded notice of the materials used against it, or a right to comment on such materials or the developing administrative record. Nothing in the statute forbids the use of 'third hand accounts, press stories, material on the internet or other hearsay regarding the organization's activities.' [citation]. The Secretary may base the findings on classified material, to which the organization has no access at any point during or after the proceeding to designate it as terrorist.

Id at 196 (quoting PMOI I, 182 F.3d at 19).

The D.C. Circuit also held that because of the absence of due process before the agency, judicial review of the Secretary's decision

is not sufficient to supply the otherwise absent due process protection. The statutory judicial review is limited to the record before the court to support the Secretary's executive decision. That record is currently compiled by the Secretary without notice or opportunity to be heard.

Id at 209.

The statute governing judicial review of foreign-terrorist-organization designations provides that "[t]he Court shall hold unlawful and set aside a designation the Court finds to be ... contrary to constitutional right, power, privilege, or immunity." 8 U.S.C. § 1189(b)(3) (emphasis added). That being so, the D.C. Circuit "recognized that a strict and immediate application of the principles of law which we have set forth herein could be taken to require a revocation of the designations." PMOI II, 251 F.3d at 209. The Court stated, *11 however, that because of the "realities of... foreign policy and national security concerns," the Court would instead leave the designations in place and remand the matter to the Secretary to provide the absent due process protections. Id.

The D.C. Circuit stated that those necessary due process protections were that "the petitioners be afforded the opportunity to file responses to the nonclassified evidence against them, to file evidence in support of their allegations that they are not terrorist organizations, and that they be afforded an opportunity to be meaningfully heard by the Secretary upon the relevant findings." Id. The D.C. Circuit did not reach the question whether the existing designations, made without due process, could be used as the predicate for criminal prosecutions. [FN5]

FN5. The indictment in this case pre-dated the PMOI II decision. After the decision in PMOI II, the Secretary purported to provide the PMOI with the due process protections required by the D.C. Circuit decision and reaffirmed the 1999 designation. An appeal from that action is pending before the D.C. Circuit.

5. The Decision Below

Ms. Rahmani and her co-defendants moved to dismiss the indictment against them. The District Court (Hon. Robert M. Takasugi) rejected the Government's argument that the Court could not consider the constitutionality of the process for designating foreign terrorist organizations, stating that the Court was "duty bound" to determine whether "one element of the offense (the foreign *12 terrorist designation) was procured in violation of the Constitution." ER 31. The District Court then held that the designation of the PMOI as a foreign terrorist organization was obtained in violation of the Due Process Clause, and "having been obtained in violation of the Constitution, is a nullity and cannot serve as a predicate in a prosecution for violation of Section 2339B." ER 38-39. The District Court therefore dismissed the indictment. ER 39.

STANDARD OF REVIEW

This Court reviews the District Court's legal determinations de novo. Charter Communications, Inc. v. County of Santa Cruz, 304 F.3d 927, 930 (9th Cir. 2002).

SUMMARY OF THE ARGUMENT

The Government argues that Ms. Rahmani may be prosecuted on the basis of a "terrorist" designation that she cannot challenge and that the D.C. Circuit found was the product of unconstitutional procedures. That use of the "terrorist" designation poses insurmountable First Amendment and due process problems and is contrary to the plain meaning of the statute.

First, it is beyond question that a criminal defendant has the right to challenge the constitutionality of the statutory scheme she is accused of violating.

*13 Second, a criminal defendant specifically has the right to argue that her activities are protected by the First Amendment and therefore cannot be made a crime. McKinney v. Alabama, 424 U.S. 669 (1976). While there is no right to contribute money to a terrorist group (Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000)), there is a First Amendment right to contribute to or solicit donations for an organization that is not a terrorist group. Ms. Rahmani therefore has a First Amendment right to contest the "terrorist" designation and argue that the charged activities are protected by the First Amendment. Because the statute prohibits her from making that argument, the indictment cannot stand.

Third, even if Congress could deprive a criminal defendant of the right to challenge a "terrorist" designation, to satisfy the First Amendment the process by which an organization is designated would have to provide sufficient procedural due process protections to ensure reliability. Here, however, the statutory scheme for designating "terrorist" organizations already has been determined by the D.C. Circuit to lack the due process protections necessary to ensure reliability. The First Amendment does not permit such a designation to serve as the unreviewable predicate to a criminal prosecution for making or soliciting contributions.

Fourth, Congress did not intend designations made through constitutionally-deficient procedures to serve as the predicate for criminal prosecutions. In taking *14 the extreme step of precluding a criminal defendant charged with being a donor from challenging a donee's designation as a "foreign terrorist organization," Congress at the same time made sure that if such a designation were found to have been obtained in violation of the Constitution, the designation could not serve as the basis for a prosecution. Thus, the statute requires that a designation must be "set aside" if the D.C. Circuit finds that it is unconstitutional. 8 U.S.C. § 1189(b)(3). Because the D.C. Circuit found that the designation of the PMOI was unconstitutional, the statute does not permit the unconstitutional designation to serve as the unchallengeable predicate for this criminal prosecution.

Fifth, the indictment must also be dismissed because the Due Process Clause requires that "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction," the defendant must be afforded "some meaningful [judicial] review of the administrative proceeding." United States v. Mendoza-Lopez, 481 U.S. 828, 837-838 (1987) (emphasis in original). Since the defendant here was afforded no opportunity to obtain review of the designation, the indictment violates due process.

Finally, a decision to dismiss the indictment will not have the broad consequences for national security that the Government claims. See Gov. Br. at 42 *15 (raising the specter of setting loose al Qaeda and Hamas). The outcome of this case will not impact the Government's ability to freeze the assets of designated terrorist groups, deny visas to members of designated terrorist groups, or prosecute individuals who intentionally provide financial support for terrorist activities (which is prohibited by another statute, 18 U.S.C. § 2339A). All the Court is asked to hold is that, under the Constitution and the governing statute, a defendant facing 10 years in prison may not be precluded by an administrative determination in a proceeding to which she was not a party, and that did not comport with due process, from arguing that the charged activities are protected by the First Amendment.

ARGUMENT

I. A CRIMINAL DEFENDANT HAS THE RIGHT TO CHALLENGE THE CONSTITUTIONALITY OF THE STATUTE SHE IS ACCUSED OF VIOLATING

The Government argues that the District Court exceeded its jurisdiction by examining the process used to designate foreign terrorist organizations, because "[t]he criminal case before the district court did not involve, and could not involve, the propriety or constitutionality of designating the [PMOI] as a foreign terrorist organization." Gov. Br. at 23. We agree that the statutory scheme makes the substantive question whether the PMOI was correctly placed on the *16 Government's list of foreign terrorist organizations irrelevant in a prosecution under 18 U.S.C. § 2339B. But that simply sets up two different questions: Whether the statutory scheme thereby violates the Constitution by making the Government's designation of the PMOI as a "foreign terrorist organization" conclusive in the Government's subsequent criminal prosecution of Ms. Rahmani, and whether the governing statute permits a designation to serve as a predicate for a criminal prosecution where the designation was made under procedures that violate the Due Process Clause.

Congress did not preclude the District Court from answering those questions, nor could it have. As the District Court stated, a federal court "is duty bound to scrutinize the laws applied in []court for conformance with the Constitution lest [it] apply an unconstitutional law." ER 32 (citing Marbury v. Madison, 5 U.S. 137, 177 (1803); United States v. Raines, 362 U.S. 17, 20 (1960)). That being so, a defendant always has the right to challenge the constitutionality of the statutory scheme under which the defendant is prosecuted. See, e.g., United States v. Bozarov, 974 F.2d 1037, 1040 (9th Cir. 1992) (defendant "is entitled to 'insist that his conduct be judged in accordance with a rule that is constitutionally valid."'); Watkins v United States, 354 U.S. 178 (1957) (ordering dismissal of indictment for contempt of Congress where *17 Congressional order that defendant answer certain questions was unconstitutional); Staub v. Baxley, 355 U.S. 313 (1958) (reversing conviction for soliciting membership in an organization where ordinance prohibiting solicitation violated First Amendment); Lovell v. City of Griffin, 303 U.S. 444 (1938) (reversing conviction for distributing literature where ordinance prohibiting distribution violated First Amendment). Similarly, it is beyond dispute that a defendant has the right to challenge the applicability of a statute to her conduct. See, e.g. Bell v. United States, 462 U.S. 357 (1983) (challenge to the scope of the Bank Robbery Act).

II. THE INDICTMENT VIOLATES THE FIRST AMENDMENT BECAUSE THE DEFENDANT IS PRECLUDED FROM CHALLENGING THE "TERRORIST" DESIGNATION

This appeal arises from a prosecution under a unique statutory provision, 18 U.S.C. § 2339B(a)(l), that makes it a crime punishable with a lengthy prison sentence to provide financial support to an organization designated by the Government as a "foreign terrorist organization." What makes this criminal statute unique is that whether the organization actually is a foreign terrorist organization is not an element of the crime. "Under 18 U.S.C. § 2339B, it is the fact of designation, rather than its validity, that triggers the criminal prohibition of material support." Gov. Br. at 23 (emphasis in original). "The statute states *18 unequivocally that... 'a defendant in a criminal action ... shall not be permitted to raise any question concerning the validity of the issuance of such designation or redesignation as a defense or an objection at any trial or hearing."' Gov. Br. at 24 (quoting 18 U.S.C. § 1189(a)(8)). [FN6]

FN6. Ms. Rahmani was not charged with violating 18 U.S.C. § 2339A, which prohibits providing material support to an organization with the knowledge or intent that such support is to be used in carrying out terrorist acts.

The District Court concluded that the statutory procedure for designating "foreign terrorist organizations" does not comport with due process principles, and therefore, that the designation cannot "be utilized as the predicate in a criminal prosecution of individuals for providing material support to that designated foreign terrorist organization." ER 21. Although we agree fully with the District Court on this point (which is discussed in Section III., infra), there is a related, and even more fundamental, constitutional flaw in the statutory scheme that is logically considered first: The statute deprives Ms. Rahmani herself of the right to contest, in any forum, whether the PMOI is a terrorist organization when that very designation is the basis of the Government's attempt to jail her. [FN7]

FN7. The dismissal of the indictment may be affirmed on any ground supported by the record. Padilla v Terhune, 309 F.3d 614, 618 (9th Cir.

2002).

*19 The Government analogizes a prosecution under 18 U.S.C. § 2339B for providing material support to a designated foreign terrorist organization to a prosecution for "providing a gun to a convicted felon" or exporting goods on the Government's export control list, where the accuracy of the felony conviction or the export control listing is not open to challenge by the defendant accused of supplying the gun or exporting the goods. Gov. Br. at 31- 33. To lay out our argument that there is a fundamental constitutional difference between this crime and those, we first must walk through the First Amendment principles that apply to this case.

A. The First Amendment Prohibits the Government from Criminalizing the Provision of Financial Support to Groups That Are Not "Terrorist Organizations"

We begin from the principle that providing and soliciting financial support for the nonviolent political, philosophical or ideological goals or beliefs of a group is activity protected by the First Amendment.

An individual's right to make contributions to an organization involves an "overlap and blend" of the First Amendment rights of association and expression. Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290/300 (1981); see also Buckley v. Valeo, 424 U.S.1, 24-25 (1976) (a limitation on contributions is a "restriction of one aspect of the contributor's *20 freedom of political association"); Service Employees Int'l Union v. Fair Political Practices Comm'n, 955 F.2d 1312, 1316 (9th Cir.) ("contributing money is an act of political association that is protected by the First Amendment"), cert denied, 505 U.S. 1230 (1992).

Similarly, soliciting donations for political, charitable or religious organizations is speech protected by the First Amendment. International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 677 (1992) (soliciting funds for religious group is "a form of speech protected under the First Amendment"); United States v. Kokinda, 497 U.S. 720, 725 (1990) (soliciting funds for political group is protected by First Amendment); Riley v. National Federation of Blind, 487 U.S. 781 (1988) ("regulation of solicitation must be undertaken with due regard for the reality that a solicitation is characteristically intertwined with informative and perhaps persuasive speech . . ., and for the reality that without solicitation the flow of such information and advocacy would likely cease.") (citation, internal quotation marks omitted); Secretary of State of Maryland v. Joseph H Munson Co., 467 U.S. 947, 959-961 (1984).

The First Amendment right to donate to and solicit funds for a political organization is especially important where the goal of such financial support is to oppose a repressive foreign regime. While anyone might stand on a soapbox in a *21 U.S. park and announce their opposition to the Iranian government, or write letters to the editor in U.S. newspapers, such expression would not be remotely as effective as providing financial support to an opposition group on the scene. In Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 628 (1980), the Supreme Court specifically rejected the contention that the Government may limit solicitation so long as it allows an individual to speak freely about her support of a cause or organization. Cf. Meyer v. Grant, 486 U.S. 414, 424 (1988) ("The First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means for doing so.").

In Humanitarian Law Project v Reno, 205 F.3d 1130 (9th Cir. 2000), this Court considered a pre-enforcement challenge to 18 U.S.C. § 2339B, and specifically "whether Congress may, consistent with the First Amendment, prohibit contributions of material support to certain foreign terrorist organizations." Id. at 1332. The Court acknowledged that 18 U.S.C. § 2339B "implicates First Amendment concerns" and struck down restrictions on providing "training" and "personnel" as unconstitutionally vague. Id. at 1137- 1138. The Court also recognized that there is a First Amendment right to give money to an organization that is not a terrorist organization. Id. at 1134. However, the Court upheld the prohibition on financial support to terrorist organizations because *22 "money is fungible," and Congress could conclude "foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contributions to such an organization facilitates that conduct," regardless of the donor's intent. Id. at 1136.

And here is the rub: whether providing financial support to an organization may be criminalized under Humanitarian Law Project (without proof of the donor's knowledge or intent as to the use of those funds) depends on whether the organization is a foreign terrorist organization. If the organization is a foreign terrorist organization, the Government may rely on the presumption, approved in Humanitarian Law Project, that any financial support to the organization subsidizes terrorist activities; if the organization is not a foreign terrorist organization, however, the prohibition on providing financial support to the organization would be an unconstitutional interference with First Amendment rights. The key issue, then, is this one: "who can authoritatively and finally determine what speech is protected?" Lawrence Tribe, American Constitutional Law, 1054-1055 (2d Ed. 1988).

Below, we explain how this question must be answered in this case. Supreme Court precedents require that a person accused of a crime must be able to defend against the prosecution by showing that his or her acts are protected by the *23 First Amendment; that means the defendant herself must be able to challenge an administrative determination that would place those acts outside the First Amendment's protections.

B. The Defendant Has a Constitutional Right to Demonstrate That the Prosecution Violates the First Amendment

1. In McKinney v Alabama, 424 U.S. 669 (1976), the Supreme Court unanimously overturned as unconstitutional a criminal conviction obtained under a statutory scheme structurally indistinguishable from this one. The statute in McKinney made it a crime for the defendant to sell materials that had previously been designated as obscene in a judicial proceeding to which the defendant was not a party. Id at 673. Under the Alabama statute, the defendant had no right to challenge the underlying obscenity determination: the only question was whether the defendant sold materials that had been designated as unprotected by the First Amendment. Id at 670.

The Supreme Court rejected the argument that a prior determination of obscenity could "finally bind" defendants who had neither notice of the hearing nor an opportunity to be heard. Justice Rehnquist, writing for the Court, stated that "[s]uch a procedure, without any provision for subsequent re-examination of the determination of the censor, would clearly be constitutionally infirm." Id at *24 674. The Court stated further that, although the publishers of the materials were given notice and afforded an opportunity to be heard in the prior proceeding, the results of the proceeding could not "conclusively determine the First Amendment rights of others." Id. at 676. See also Soundgarden v. Eikenberry, 871 P.2d 1050 (Wash. 1994) (following McKinney and invalidating statute making it a crime to sell to minors material that has previously been judicially declared to be "erotic material"); State v. Luck, 353 So.2d 225, 229 (La. 1977) (judicial determination of obscenity may not serve as conclusive finding of obscenity in any other criminal case).

Here, the Government is seeking to imprison Ms. Rahmani for allegedly providing support to the PMOI, an activity that Ms. Rahmani contends is protected by the First Amendment rights to fund-raise for and make contributions to a non-terrorist organization. If she is correct in that respect, the Government has no authority to prohibit her fund-raising or contributions. Just as the First Amendment protects individuals who sell materials that are not obscene, the First Amendment protects the right to solicit donations for or provide financial support to political organizations that are not terrorist groups. See Humanitarian Law Project, 205 F.3d at 1134 and cases cited supra at pp. 19-22. And, just as the First Amendment requires that a criminal defendant accused of distributing *25 obscene materials must have the ability to challenge the obscenity determination, so must a criminal defendant accused of soliciting donations for or contributing to a terrorist organization have the ability to challenge the "terrorist" determination. The First Amendment cannot be evaded by defining the crime as providing financial support to an organization designated as a terrorist group, just as it cannot be evaded by defining the crime as selling materials designated as obscene.

2. The McKinney Court rejected two arguments in favor of the Alabama obscenity statute that are very similar to the arguments the Government offers in support of 18 U.S.C. § 2339B. The first was that the First Amendment rights of a criminal defendant are adequately protected because other individuals - the publishers of the allegedly obscene materials - are given notice and the opportunity to challenge the obscenity determination. McKinney, 424 U.S. at 675. The McKinney Court dismissed that contention, pointing out that under the statute the defendants were bound by the outcome of the "obscenity" proceeding even though the statute does not require that criminal defendants be in "privity" with the parties to the earlier proceeding "as that term is used in determining the binding effects of judgments." McKinney, 424 U.S. at 675. The Court stated further:

*26 Our difficulty with this argument is its assumption that the named parties' interests are sufficiently identical to those of petitioner that they will adequately protect his First Amendment rights. There is no indication that they are in privity with him ... Those who are accorded an opportunity to be heard in a judicial proceeding established for determining the extent of their rights are properly bound by its outcome ... But it does not follow that a decision reached in such proceedings should conclusively determine the First Amendment rights of others. Nonparties like petitioner may assess quite differently the strength of their constitutional claims and may, of course, have very different views . . . We think they must be given the opportunity to make these assessments themselves, as well as the chance to litigate the issues if they so choose.

Id. at 675-676. See also United States v. Thoresen, 428 F.2d 654, 668 (9th Cir. 1970) (defendant may not be bound by outcome of suppression hearing to which only her co-conspirator and husband had been party); United States v. Schmidt, 604 F.2d 236, 238 (3d Cir. 1979) (defendant may not be bound by outcome of suppression hearing to which only his co-conspirators had been party); Cf. Restatement (Second) of Judgments § 83(2) (adjudicative determination by administrative tribunal not conclusive under doctrine of res judicata unless there is adequate notice to persons to be bound, right to present evidence and legal argument in support of a party's position and to rebut evidence and argument by opposing parties, and "such other procedural elements as may be necessary to constitute the proceeding a sufficient means of conclusively determining the matter in question").

*27 As was the case with the publisher in McKinney, the ability of alleged terrorist organizations to challenge their designations cannot protect the constitutional rights of those organizations' supporters in the United States. First, as the Government itself points out, foreign organizations that lack a presence in the United States (which the Government contends make up the bulk of the organizations on the list) cannot assert the violation of constitutional rights. Gov. Br. at 40-41. In PMOI I, the D.C. Circuit upheld a foreign-terrorist-organization designation notwithstanding the absence of any semblance of due process. Thus, the Government's position is that an individual defendant asserting constitutional rights is required to rely on a process for protecting her constitutional rights that, as a matter of law, may be barred from ever taking place.

Second, even where an organization does have a constitutional presence in the United States, a defendant cannot be assured that the D.C. Circuit will conduct a review of the "terrorist" designation that protects the defendant's constitutional rights. In PMOI II, despite the clear mandate of 8 U.S.C. § 1189(b)(3) requiring unconstitutional designations to be set aside, the D.C. Circuit did not set aside the designation even after finding a due process violation that implicated the reliability of the designation, apparently concluding that national security considerations justified leaving the designation in place as to the organization, *28 due process or not. In that case, the PMOI elected not to seek certiorari and to accept remand to the Secretary of State; one can be quite sure that a criminal defendant in that situation would have made a very different decision if her liberty were at stake. [FN8]

FN8. Furthermore, some designated groups that have a presence in the United States might not have the resources or the ability to mount a challenge in the D.C. Circuit, and the unchallenged designation would forever bind Americans who wish to donate to that group.

The McKinney Court also rejected out of hand the state's argument, akin to the Government's argument here, that a defendant could be precluded from challenging an earlier determination because allowing such challenges would undercut advantageous centralized review:

The State asserts that invalidation of petitioner's conviction will seriously undermine the use of civil proceedings to examine the protected character of specific materials, procedures which according to the respondent offer marked advantages for all concerned over dealing with obscenity only in case-by-case criminal prosecutions. Petitioner however, was convicted and sentenced in a criminal proceeding wherein the issue of obscenity vel non was held to be concluded against him by the decree in a civil proceeding to which he was not a party and of which he had no notice. Thus we need not condemn civil proceedings in general ... to conclude that this procedure fails to meet the standards required where First Amendment interests are at stake.

McKinney, 242 U.S. at 676.

*29 Here, the Government argues that "compelling foreign policy and national security reasons support centralizing review [of foreign-terrorist-organization designations] in one Article III court" (Gov. Br. at 29) because, among other things, "these designations typically involve sensitive, classified information." Gov. Br. at 26. The Government itself, however, initiated this prosecution in the Central District of California, and courts within this Circuit are just as capable as other Article III courts of dealing with "sensitive, classified information." Basic constitutional rights cannot be sacrificed just to provide "an expedient solution to the crisis of the day." New York v. United States, 505 U.S. 144, 187 (1992). [FN9] In any event, rejecting this unique statutory scheme under which a defendant's First Amendment rights are conclusively determined in a "proceeding to which [she] was not a party and of which [she] had no notice" (McKinney, 242 U.S. at 676) would not prevent Congress from devising a different scheme that protected constitutional rights yet provided for centralized review.

FN9. In enacting this measure on the heels of the Oklahoma City bombing, the Senate was well aware of the First Amendment problems caused by 18 U.S.C. § 2339B. Senator Arlen Specter specifically noted that: "I am also concerned about the first amendment implications of this provision, restricting the ability of U.S. citizens to support favored causes." Cong. Rec. daily ed. April 17, 1996 at S3473.

3. For its argument that an administrative determination that the defendant cannot challenge may nonetheless serve as the predicate for a *30 subsequent criminal prosecution, the Government relies upon a line of cases dealing with criminal sanctions imposed for exporting goods on an "export control list" without obtaining an export license. Gov. Br. at 31-32. Those export regulation cases are not analogous because they "do[] not involve the defendant's individual rights." United States v. Bozarov, 974 F.2d 1037, 1046 (9th Cir. 1992); see also United States v Mandel, 914 F.2d 1215, 1221 (9th Cir. 1990). [FN10] That is, the defendants in the export cases had no First Amendment right to export without a license - Congress could have made it illegal to export the item without a license regardless of whether the item met the statutory criteria to be placed on the export control list. Here, the defendant does have a First Amendment right to donate money to political groups that are not terrorist organizations; if the "terrorist" designation is wrong, then a criminal prosecution would violate the First Amendment.

FN10. Additionally, it is not entirely accurate to say that defendants in the export cases had no prior opportunity to obtain judicial review. While a defendant charged with exporting products on the export control list without a license has no right to challenge the placement of a product on

the list, any individual has the right to apply for a license to export a product on the list, and to seek administrative review of a license denial. See United States v. Bozarov, 974 F.2d 1037, 1039 (9th Cir. 1992); 50 U.S.C.App. § 2412.

The Government also relies upon precedents upholding statutes that make a prior conviction an element of a subsequent crime - such as statutes that bar a *31 felon from possessing a gun - yet preclude challenge to the validity of the prior conviction. Gov. Br. 33 (citing Lewis v. United States, 445 U.S. 55 (1980) and Custis v. United States, 511 U.S. 485 (1994)). In those cases the defendant was a party to the earlier proceeding and could have "challenged his prior conviction in an appropriate proceeding in the [State] courts." Lewis, 445 U.S. at 64. Here, the defendant was not a party to the prior proceeding and had no right to challenge the result of that proceeding.

The Government, citing Lewis, also compares a prosecution under 18 U.S.C. § 2339B to a prosecution under a statute "that prohibits providing a gun to a convicted felon." Gov. Br. at 23-24. Lewis was not about providing a gun to a felon, but rather about being a felon in possession of a gun. Lewis, 445 U.S. at 56. But even if the Lewis case involved the Government's hypothetical statute that criminalizes providing a gun to a felon, yet precludes challenge of the underlying felony conviction, the case would still not be analogous to this one. There is no constitutional right to provide a gun to a person who is not a felon. See Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (no individual right to own or possess gun).

Finally, the Government is wrong in its claim that Humanitarian Law Project holds that Congress may preclude a criminal defendant from challenging *32 the "terrorist" designation, and that Humanitarian Law Project "made clear that challenges to the statutory scheme concerning designation belonged in the D.C. Circuit alone." Gov. Br. at 35. Humanitarian Law Project was a pre-enforcement challenge to the statute; the Court was not faced with a criminal prosecution. The Court simply did not address the issue whether the "terrorist" designation could be preclusive as to criminal defendants like Ms. Rahmani, who had no right to challenge the designation in the D.C. Circuit. Because the Government argues that Ms. Rahmani cannot challenge the designation in any forum, the Government's reading of Humanitarian Law Project as requiring her to mount a challenge in the D.C. Circuit cannot be accepted.

III. THE INDICTMENT VIOLATES THE FIRST AMENDMENT BECAUSE THE "TERRORIST" DESIGNATION PROCEDURES LACK DUE PROCESS PROTECTIONS NECESSARY TO ENSURE RELIABILITY

Even if Congress could deprive a criminal defendant of the right to change a "terrorist" designation, to satisfy the First Amendment the process by which an organization is designated would have to provide sufficient procedural due process protections to ensure reliability. Thus, Ms. Rahmani's indictment would still fail to pass constitutional muster because the designation procedure *33 does not include the basic due process components necessary to ensure that a designation is reliable.

1. A determination whether activity is First Amendment-protected must adhere to strict due process protections. Freedman v. State of Maryland, 380 U.S. 51, 60 (1965). This rule is "but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks." Bantam Books, Inc. v Sullivan, 372 U.S. 58, 66 (1963) (citing Thornhill v. State of Alabama, 310 U.S. 88 (1940); Winters v. People of the State of New York, 333 U.S. 507 (1948); NAACP v. Button, 371 U.S. 415 (1963); Speiser v. Randall, 357 U.S. 513 (1958)). See also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325-326 (1979) (seizure of materials that may be protected by First Amendment is not "reasonable" within the Fourth Amendment unless a detached and neutral magistrate has issued a particularized warrant); Shuttles-worth v. City of Birmingham, 394 U.S. 147 (1969) (reversing conviction for failure to obtain parade permit, where permitting procedures were insufficient and statute therefore violated First Amendment).

Because a determination that the PMOI is a terrorist organization also cuts off what would otherwise be the First Amendment rights of individuals to fund-raise for or contribute to the PMOI (see supra at pp. 19-22), the determination *34 must be made with full due process protections to ensure the reliability of the decision, including a provision for meaningful judicial review.

As a threshold matter, notice and a meaningful opportunity to be heard are the most basic elements of due process. Cleveland Board of Education v. Loudermille, 470 U.S. 532, 542 (1985); Goldberg v. Kelley, 397 U.S. 254, 267 (1970); Armstrong v. Manzo, 380 U.S. 545, 551-552 (1965). Without notice and a meaningful opportunity to be heard, there is no opportunity to show that a proposed decision "rests on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of a particular case." Goldberg, 397 U.S. at 268. In short, without notice or a meaningful opportunity to be heard, the result is inherently unreliable.

Thus, in Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 180 (1968), the Supreme Court invalidated a temporary restraining order holding a rally unprotected by the First Amendment where there was "a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings." Under such circumstances, "there is insufficient assurance of the balanced analysis and careful conclusions which are essential in the area of First Amendment adjudication." Id. at 183; see also *35Vance v. Universal Amusement Co., 445 U.S. 308, 317 (1980) (invalidating state statute that allowed state judge to determine which materials are protected by the First Amendment because trial judge's determinations were "procedurally deficient," and there were no "special safeguards governing the entry and review of [the trial court's] orders").

In addition to notice and an opportunity to be heard, there must be meaningful judicial review. In Freedman v State of Maryland, 380 U.S. 51, 60 (1965), the Supreme Court reversed the defendant's conviction for showing a film not submitted to the board of censors because the state statute did not provide procedural safeguards for challenging, in a court of law, the censors' decision that the film was obscene. Without providing for judicial review, the procedures for determining whether materials are protected by the First Amendment were not made with "the necessary sensitivity to freedom of expression." Id at 58.

Allowing for judicial review alone is not sufficient - it must be meaningful judicial review. Thus, in Southeastern Promotions v. Conrad, 420 U.S. 546, 561 (1975), the Court held that a denial of the use of municipal facilities for a production of "Hair" violated the First Amendment because the denial was imposed without providing for prompt or effective judicial review, and therefore *36 lacked the "procedural safeguards designed to obviate the dangers of a censorship system." Id. at 559 (quoting Freedman, 380 U.S. at 58).

2. In this case, judging the quality of the statutory designation and appeal procedures is not difficult because the D.C. Circuit has already concluded that those procedures do not comport with due process. PMOI II, 251 F.3d at 192. As the D.C. Circuit explained, the statutory scheme is notable for the "dearth of procedural participation and protection afforded the designated entity." Id. at 196. First, the designated group was never provided pre-deprivation notice, nor did it receive "notice of the materials used against it, or a right to comment on such materials or the developing administrative record." Id. Furthermore, the statute gives the Secretary free reign to make a decision on the basis of "'third hand accounts, press stories, material on the internet or other hearsay regarding the organization's activities."' Id at 196 (quoting PMOI I, 182 F.3d at 19).

Second, the judicial review provided for a challenge to this faulty administrative process is toothless. The D.C. Circuit held that the judicial review provided by the statute was ineffective because it is confined to the administrative record and:

the aggrieved party has had no opportunity to either add to or comment on the contents of that administrative record; and the record can, and in our experience generally does, encompass "classified *37 information used in making the designation" as to which the alleged terrorist organization never has any access, and which the statute expressly provides the government may submit to the court ex parte and in camera.

Id. at 196-197 (quoting 8 U.S.C. § 1189(b)).

The Government does not contest that the PMOI II Court was correct in its conclusion that the designation procedures were so inherently unreliable as not to comport with the Due Process Clause. The Government asserts only that the procedures are constitutional with respect to foreign entities that, unlike Ms. Rahmani, have no constitutional rights to violate - a proposition that is difficult to dispute.

Such constitutionally infirm and inherently unreliable statutory procedures fail to meet the due process requirements necessary for the designation to determine First Amendment rights in subsequent criminal prosecutions. [FN11]

FN11. The Ninth Circuit decision in Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000) does not require a different result. That case did not decide what designation procedures would be sufficient to form the basis for a criminal prosecution, or whether a criminal prosecution could proceed based upon an inherently unreliable designation. Indeed, at the time that Humanitarian Law Project was handed down, the D.C. Circuit had not yet issued its decision in PMOI II holding the designation process to be unconstitutional.

3. The Government's arguments for glossing over the constitutional problems cannot be accepted.

*38 First, that the D.C. Circuit did not set aside the designations of the PMOI in 1997 and 1999 cannot be dispositive of this case. The D.C. Circuit never considered whether those designations could serve as the predicate for subsequent criminal prosecutions of individuals, not before that Court, who have First Amendment and due process rights. In PMOI I the Court expressly stated that it was leaving open that very issue. 182 F.3d at 22 n.6. In PMOI 11, while the Court left the designation in place, it never addressed the purposes for which a designation obtained in violation of the constitution could be used.

Even if the D.C. Circuit had intended that the 1999 designation stay in effect as to the assets of the PMOI or the visa opportunities for its members, what suffices in a civil context is not automatically sufficient in a criminal context. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1983); United States v. Gaudreau, 860 F.2d 357, 360 (10th Cir. 1988). As we have demonstrated, a designation made through a statutory process that does not provide basic due process protections cannot be used as the predicate for a criminal prosecution of an alleged donor.

Second, the Government contends that the unconstitutional designation can be used in this prosecution because on September 24, 2001, after Ms. Rahmani was charged with providing financial support to the PMOI, the Secretary of State *39 provided the PMOI with the "requisite" process and then retroactively affirmed the 1999 designation. Gov. Br. at 48. But this would run afoul of the Ex Post Facto Clause. U.S. Const. Art. I, § 9. The 2001 retroactive designation would be an impermissible ex post facto law if the Government were correct because it would render an act punishable that would not otherwise have been punishable when it was committed. See Carmel v. Texas, 529 U.S. 513, 523 (2000). [FN12] The criminality of the defendant's actions may not depend on an after-the-fact designation. Thus, the Government may not rely on the 2001 retroactive designation of the PMOI to "save" the prior unconstitutional designations, and thereby to permit a criminal prosecution for previously providing financial support to the organization.

FN12. A regulation having the force and effect of law is considered a "law" for purposes of the ex post facto clause. Smith v. Scott, 223 F.3d 1191, 1194-1195 (10th Cir. 2000); Flemming v. Oregon Bd. of Parole, 998 F.2d 721, 726 (9th Cir. 1997); Weaver v Maass, 53 F.3d 956, 959 (9th Cir. 1995).

Third, the Government argues that the procedures used to designate "foreign terrorist organizations" do not matter because only "the fact of the designation" (Gov. Br. at 23) is an element of the crime with which Ms. Rahmani was charged. [FN13] That the designation is correct, however, is the necessary predicate to *40 the conclusion that Ms. Rahmani's activities are not protected by the First Amendment, and therefore that the Government can criminalize them in the first place. The designation process therefore must contain due process protections to assure designations are reliable.

FN13. As we show in the next section (infra at pp. 41-45), Congress never intended an unconstitutional designation to be used as the predicate for a criminal prosecution under 18 U.S.C. § 2339B.

Fourth, the Government urges that because most designated "foreign terrorist organizations" have no constitutional presence in the United States there is no constitutional problem in applying the designation procedures to such organizations, like the PMOI in 1997. The constitutional problem at issue here, however, is not a violation of the organizations' due process rights (which are often non-existent). The constitutional problem is in the use of the designation as conclusive in the subsequent criminal prosecution of a defendant who does have First Amendment and due process rights. [FN14]

FN14. We are not arguing that the designations are invalid as to the organizations themselves; this Court need not decide whether the designations can serve as the predicate for the freezing of the organizations' assets, notwithstanding the absence of due process protections. That is an issue for the D.C. Circuit.

IV. THE STATUTE DOES NOT PERMIT A DESIGNATION MADE THROUGH CONSTITUTIONALLY-DEFICIENT PROCEDURES TO SERVE AS THE PREDICATE FOR A CRIMINAL PROSECUTION

The 1999 designation of the PMOI also cannot serve as a predicate for a criminal prosecution because the D.C. Circuit held that the designation violated *41 the Due Process Clause (PMOI II, 251 F.3d at 196), and the statute precludes the use of a constitutionally defective designation in a subsequent criminal prosecution. The statute provides that the D.C. Circuit "shall hold unlawful and set aside" a designation made in violation of the constitution. 8 U.S.C. § 1189(b)(3) (emphasis added).

Thus, while the statute takes the extreme (and in our view unconstitutional) step of precluding a criminal defendant from challenging the "terrorist" designation (8 U.S.C. § 1189(a)(8)), Congress at the same time provided that if the "terrorist" designation actually was adjudicated by the D.C. Circuit to have been made in violation of the Constitution, that designation could not serve as the basis for a prosecution (8 U.S.C. § 1189(b)(3)). These two statutory provisions are inextricably intertwined.

According to the Government, however, a defendant can be prosecuted for providing financial support to a designated "terrorist" group based upon a designation that the defendant herself cannot challenge and that has been held to be unconstitutional. Gov. Br. at 48-49. That interpretation of the statute must be rejected. As we have shown, the Government's construction would bring the statutory scheme into direct conflict with the First Amendment, and, to the extent that the Government relies upon the 2001 reaffirmation of the 1999 designation, *42 with the Ex Post Facto Clause as well. Both the Supreme Court and this Court have made clear that courts are required, where possible, to construe statutes to avoid serious constitutional questions. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461, 468 (9th Cir. 2001). Here the Congressional intent, as manifested by the plain meaning of the statutory language, is clearly that no criminal prosecution may proceed pursuant to an unconstitutional designation.

The Government relies upon the D.C. Circuit's decision to leave the 1999 designation in place, notwithstanding the clear Congressional mandate that the designation "shall" be "set aside." Gov. Br. at 47. But, while the D.C. Circuit bowed to what it saw as the "realities of. . . foreign policy and national security concerns" by leaving the 1999 designation in place pending proceedings on remand (PMOI II 251 F.3d at 209), the Court never addressed whether the unconstitutional designation could nonetheless stand as the predicate for subsequent criminal prosecutions for providing material support, because that question was not presented to the Court and no criminal defendant was a party to that action. All the D.C. Circuit held is that it would be permissible to "list first" and provide due process later as to the PMOI. This means that the civil *43 consequences to the PMOI of designation (such as the freezing of its assets) remain in effect; it does not mean that criminal consequences to third parties also remain in effect. See Village of Hoffman Estates, 455 U.S. at 499; Gaudreau, 860 F.2d at 360.

The D.C. Circuit itself acknowledged that a "strict. . . application" of the statute would require "revocation of the designations." PMOI II, 251 F.3d at 209. Courts may have some flexibility in applying statutes in the civil context, but departures from the statutory text cannot be applied retroactively to the disadvantage of criminal defendants. Bouie v. City of Columbia, 378 U.S. 347, 352 (1964) (Due Process Clause prohibits constructions of criminal statutes that could not have been anticipated in advance from applying retroactively in criminal cases).

The Government cites various cases for the proposition that even where a court finds a statute unconstitutional, the court might allow that statute to stay in effect. Gov. Br. at 49-50. Those cases allowed adjudicatory or legislative bodies that were unconstitutionally created to temporarily continue functioning (Northern Pipeline Co v. Marathon Pipeline Co., 458 U.S. 50, 88- 89 (1982) (bankruptcy court); Citizens for Abatement of Noise v. Airports Authority, 917 F.2d 48, 57-58 (D.C. Cir. 1990)(airport authority); Buckley v. Valeo, 424 U.S. 1, 142-43 (1976) *44 (Federal Election Commission); [FN15] Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 675 (1964) (state legislature)). None of these cases deal with a criminal prosecution that is premised upon an unconstitutional administrative determination.

FN15. Note that in Buckley the Court did not stay implementation of its First Amendment holdings. It stayed for 30 days the judgment that "powers conferred by the Act on the Federal Election Commission can be exercised only by 'Officers of the United States."' 424 U.S. at 143-144.

Moreover, unlike all the cases cited by the Government, here Congress clearly anticipated in the governing statute that some designations might be found to be unconstitutional, and it made its intent crystal clear: at the same time that it took away the right of a criminal defendant to challenge the "terrorist" designation, Congress expressly provided that unconstitutional designations "shall" be "set aside." 8 U.S.C. § 1189(b)(3).

Because the 1999 designation of the PMOI was found by the D.C. Circuit to be unconstitutional, and the plain words of the statute provide that under such circumstances the designation "shall" be "set aside" (8 U.S.C. § 1189(b)(3)) (emphasis added), the designation may not be used as a predicate for criminal *45 charges against Ms. Rahmani. The District Court therefore correctly dismissed the indictment. [FN16]

FN16. The procedures used for the 1999 designation were the same procedures that the Secretary used to put the PMOI on the list in 1997. The PMOI simply could not raise a constitutional due process claim as to the 1997 designation because the D.C. Circuit concluded that the PMOI lacked a constitutional "presence" in the United States. Because the 1999 designation was found to be unconstitutional, and the 1997 designation suffers from the same flaws as the 1999 designation, it follows that the Government must also be precluded from using the 1997 designation as the basis of a criminal prosecution.

V. THE DUE PROCESS CLAUSE PREVENTS THE GOVERNMENT FROM MAKING THE ADMINISTRATIVE "TERRORIST" DESIGNATION BINDING ON A CRIMINAL DEFENDANT

Our constitutional arguments to this point have been premised on the First Amendment implications for Ms. Rahmani of the "terrorist" determination, but it also bears emphasis that even if the First Amendment did not require special procedural protections, an administrative determination that a criminal defendant was not permitted to judicially challenge generally cannot later serve as the predicate for imposing criminal liability. The Supreme Court explained in Mendoza-Lopez that "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction," the defendant must be afforded "some meaningful [judicial] review of the administrative proceeding." *46United States v. Mendoza-Lopez, 481 U.S. 828, 837- 838 (1987) (emphasis in original) (citing Estep v. United States, 327 U.S. 114, 121-122 (1946); Yakus v. United States, 321 U.S. 414, 444 (1944); McKart v. United States, 395 U.S. 185-196-197 (1969)).

In Mendoza-Lopez, the Supreme Court affirmed the dismissal of indictments charging two individuals with illegally re-entering the United States, holding that "[b]ecause respondents were deprived of their rights to appeal [the prior deportation order],... the deportation proceedings in which these events occurred may not be used to support a criminal conviction." Id. at 842; see also Estep v. United States, 327 U.S. 114 (1946) (overturning convictions for evading draft where the defendants had not been afforded opportunity to challenge underlying administrative decisions that found them eligible for draft); Wisconsin v. Constantineu, 400 U.S. 433 (1971) (invalidating law forbidding sale of liquor to persons who were designated by the chief of police as habitual drunkards because designated individuals had no pre-deprivation notice or opportunity to challenge designation).

As in Mendoza-Lopez, in which an earlier administrative deportation order made the defendant's subsequent reentry a criminal offense, here it is an earlier administrative "terrorist" designation that makes the defendant's alleged actions a crime. As in Mendoza-Lopez, the administrative determination the Government *47 seeks to use is one that the defendant never had an opportunity to challenge in court. Indeed, Ms. Rahmani's situation is even more compelling than that of the defendant in Mendoza-Lopez: not only is she denied judicial review like the Mendoza-Lopez defendant, but she is bound by a prior administrative decision to which she was not even a party In Mendoza-Lopez, the appeal was foreclosed by actions of the Administrative Law Judge; here appeal was foreclosed by statute. In either case, the principle remains that an administrative determination may not play a "critical role" in a criminal prosecution unless the defendant has been able to obtain meaningful review of that determination. Mendoza-Lopez, 481 U.S. at 837-838.

The Mendoza-Lopez Court specifically distinguished the situation at issue here - where the defendant never had the right to challenge the earlier administrative decision - from the situation at issue in "felon in possession" cases, noting that "'a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm."' Mendoza-Lopez, 481 U.S. at 843 (quoting Lewis v. United States, 445 U.S. 44, 67 (1980)). Similarly, the "export control" cases are not controlling here because the defendants in those cases had an opportunity to apply for a license and to appeal from a denial of a *48 license, and in any case the export control laws "do[] not involve the defendant's individual rights." Bozarov, 974 F.2d at 1046.

The District Court saw Mendoza-Lopez as irrelevant to this case because, in the District Court's view, the 2001 redesignation of the PMOI cured any Mendoza-Lopez violation. ER 33. However, in United States v. Proa-Tovar, 975 F.2d 592, 595 (1992) (en banc), this Court held that review of an earlier administrative decision pursuant to Mendoza-Lopez is not necessary only where "it is essentially conceded that a direct appeal could not have yielded a different result." [FN17] And, four years later in United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996), this Court made it clear that to show prejudice for purposes of invoking the Mendoza-Lopez doctrine, a defendant "only needs to show that he has plausible grounds for relief."

FN17. Unlike the present case, Proa-Tovar involved defendants who were parties to the earlier administrative proceedings and were deprived of a direct appeal. Thus, its limitation of Mendoza-Lopez should not apply to

a case such as this, where the defendant was also precluded from becoming a party to the prior administrative proceeding.

There is no question but that Ms. Rahmani meets the Proa-Tovar and Jimenez-Marmolejo standard. Ms. Rahmani was precluded from becoming a party to the administrative proceeding by which the PMOI was put on the list of terrorist *49 organizations, so it cannot possibly be said with certainty that her judicial challenge to the listing would have failed. The PMOI does not stand in privity to Ms. Rahmani and could not and did not represent all of her interests. See, e g McKinney, 424 U.S. at 675-676; Thoresen, 428 F.2d at 668. Ms. Rahmani, a political asylee who is legally present in the United States, who enjoys the full protection of the First Amendment, and who faces a potential 10-year prison term as a result of the designation, has interests and rights different from the PMOI's.

The PMOI could not raise constitutional arguments in its appeal of the 1997 designation because it lacked a presence in the United States; had Ms. Rahmani been allowed to appeal the designation, it is not just "plausible" but likely that the result would have been different. And, although the PMOI was successful in its due process challenge to the 1999 designation, the D.C. Circuit, after weighing the interests of the Government and the PMOI, decided not to "set aside" the designation as required by the statute. PMOI II, 251 F.3d at 209. It is more than just "plausible" that, if Ms. Rahmani had been a party to the proceeding, the Court would have set aside the designation for purposes of a criminal prosecution against her. Moreover, the PMOI did not seek to overturn that decision by filing a petition for certiorari; had Ms. Rahmani been a party, she almost certainly would have done so.

*50 Moreover, if Ms. Rahmani had participated in the administrative proceeding before the Secretary of State, she might have been able to present much more forcefully than the alleged terrorist organization the argument that the PMOI is not a threat to national security.

The District Court's summary conclusion that the defendant was not prejudiced by her inability to seek a review of the designation was therefore error. [FN18]

FN18. We respectfully note for purposes of preserving the issues should they become pertinent later in this litigation that it is Ms. Rahmani's position that 18 U.S.C. § 2339B is unconstitutional facially and as applied because 1) it imposes guilt by association, without requiring the Government to prove that a defendant intends to further terrorist or other unlawful activity; 2) it gives the Secretary of State unfettered discretion to limit the rights of expression and association; and 3) it cannot survive either strict or intermediate scrutiny because it is content-based and is

not sufficiently tailored to the Government's objectives. However, because a panel of this Court is bound by the holding to the contrary on these issues in Humanitarian Law Project, we do not brief the issues further at this juncture.

VI. DISMISSAL OF THE INDICTMENT WOULD NOT HAVE THE BROAD CONSEQUENCES FOR NATIONAL SECURITY THAT THE GOVERNMENT CLAIMS

We are not asking the Court to hold that the existing designations of groups as "foreign terrorist organizations" are invalid. The Government's list of foreign terrorist organizations may remain intact; assets of listed organizations may remain frozen; members of listed organizations may continue to be denied visas to *51 enter the United States. The Government may also continue to prosecute individuals under 18 U.S.C. § 2339A who intentionally provide financial support to organizations with the knowledge or intent that the support will further terrorist activities. The Court is asked to hold only that, under the Constitution and the governing statute, a defendant may not be precluded by an administrative determination in a proceeding to which she was not a party, and that did not comport with due process, from arguing that her activities are protected by the First Amendment.

The constitutional flaws at issue here are not mere technicalities. Under the Government's view, the Secretary of State could put any foreign group on the list of "terrorist organizations" so long as the Secretary placed in the administrative record some hearsay evidence of a "terrorist" act committed by members of that group, and made a finding, unreviewable by any court, that such acts threaten the economic interests of the United States.

Under the statute, neither the organization nor its supporters are provided notice and the opportunity to be heard before the designation is made, and judicial review of the designation is confined to the administrative record compiled by the Secretary, which means judicial review is practically nonexistent. See PMOI I, 182 F.3d at 23 ("For all we know, the designation may be improper because the *52 Secretary's judgment that the organization threatens our national security is completely irrational and devoid of any support"). Even the D.C. Circuit's decision in PMOI II requiring the Secretary to provide minimal due process protections in the future applies only to those foreign organizations with a presence in the United States. 32 County Sovereignty Committee v Department of State, 292 F.3d 797, 799 (D.C. Cir. 2002) (because 32 County had no presence in the United States, "[t]he Secretary therefore did not have to provide 32 County or the Association with any particular process before designating them as foreign terrorist organizations."). No individual criminal defendant has a right to be heard.

Assume hypothetically that a future administration were to designate Greenpeace, Solidarity, or the African National Congress as foreign terrorist organizations. There would be no effective judicial review, since the D.C. Circuit has stated that the review it conducts when the organization itself brings a challenge is limited to determining whether the organization is foreign and whether it has engaged in violence, and the latter determination may be made "on *53 the basis of third hand accounts, press stories, material on the Internet or other hearsay regarding the organization's activities." PMOI I, 182 F.3d at 19. [FN19]

FN19. In this age of burgeoning Internet gossip sites, one can find Internet sites saying nearly anything. Yet even hearsay statements reported in the conventional press could provide fodder for designating mainstream organizations. See, e.g., Greenpeace Boat Rams French Yacht, BBC News, May 18, 2002, <http://news.bbc.co.uk/l/hi/world/monitoring/media_ reports/1995953.stm> (Greenpeace accused of intentionally attacking boat sponsored by nuclear power company).

That administrative determination would then be conclusive in a subsequent prosecution under 18 U.S.C. § 2339B of U.S. citizens who donated money to the organization.

It is precisely at moments like these, when the Government seeks to assert broad new powers in the name of "national security," that the courts must be most careful to conduct a thorough and searching review of the Constitutional questions posed by Congressional enactments.

[The] concept of 'national defense' cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term 'national defense' is the notion of defending those values and ideals which set this Nation apart. For [more than] two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties -*54 the freedom of association - which makes the defense of the Nation worthwhile.

United States v. Robel, 389 U.S. 258, 264 (1967).

CONCLUSION

For the reasons set forth above, this Court should affirm the District Court's dismissal of the indictment against Ms. Rahmani.

Appendix not available.