2009 WL 2913651
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
UNITED STATES of America
v.
Oussama KASSIR, a/k/a “Abu Abdullah,” a/k/a “Abu Khadija,” Defendant.
No. 04 Cr. 356(JFK).
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Sept. 11, 2009.
West KeySummary
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Conspiracy |
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There was sufficient evidence to establish
the existence of a knowing agreement between Defendant and his alleged
co-conspirators to sustain a conviction against Defendant for all of the
conspiracy counts. A co-conspirator testified that Defendant admitted that he
had been sent to conduct jihad training was by itself sufficient to support the
jury’s verdict. Two other individuals corroborated the co-conspirator’s
testimony and two men described the kind of training Defendant willingly
provided them. 18 U.S.C.A. §§
2339A, 2339B;
18 U.S.C. §
956(a). 2 Cases that
cite this headnote |
OPINION & ORDER
JOHN F. KEENAN,
District Judge.
*1 Before the Court is convicted Defendant Oussama Kassir’s
(“Defendant” or “Kassir”) motion for a judgment of acquittal pursuant to Rule 29 of the
Federal Rules of Criminal Procedure or, alternatively, for a new
trial pursuant to Rule 33. For the reasons that follow, the motion is denied.
I. BACKGROUND
At trial, the Government offered evidence in support of
two sets of charges against Defendant. First, the Government offered evidence
that Kassir trained young men for jihad in the Pacific Northwest at both a
Seattle mosque and a camp site in Bly, Oregon (the “Jihad Training Charges”).
For this conduct, Kassir was charged with conspiracy to provide and conceal
material support and resources to terrorists, 18 U.S.C. §
2339A (Count One1); providing and concealing material support and
resources to terrorists, 18 U.S.C. §
2339A (Count Two); conspiracy to provide material support and
resources to a foreign terrorist organization, 18 U.S.C. §
2339B (Count Three); providing material support and resources to a
foreign terrorist organization, 18 U.S.C. §
2339B (Count Four); conspiracy to kill, kidnap, maim, and injure
persons in a foreign country, 18 U.S.C. §
956(a) (Count Five).
Second, the Government offered evidence that, after
leaving the United States and returning to Sweden, where he is a citizen,
Kassir operated a network of terrorist websites known as the “Islamic Media
Center” (“IMC”), which distributed jihadi propaganda and instructions on how to
build bombs and manufacture poisons, among other things (the “Terrorist
Websites Charges”). For this conduct, Kassir was charged with conspiracy to
provide and conceal material support and resources to terrorists, 18 U.S.C. §
2339A (Count Six); providing and concealing material support and
resources to terrorists, 18 U.S.C. §
2339A (Count Seven); conspiracy to provide material support and
resources to a foreign terrorist organization, 18 U.S.C. §
2339B (Count Eight); providing material support and resources to a
foreign terrorist organization, 18 U.S.C. §
2339B (Count Nine); conspiracy to kill, kidnap, maim, and injure
persons in a foreign country, 18 U.S.C. §
956(a) (Count Ten); distributing information relating to explosives,
destructive devices, and weapons of mass destruction, 18 U.S.C. §
842(p)(2)(A) (Count Eleven).2
During the three-week trial, the Government offered
extensive evidence in support of both sets of charges. The Court discusses the
evidence only insofar as it is relevant to this decision.
In support of the Jihad Training Charges, the Government
called cooperating witness James Ujaama (“Ujaama”), a U.S. citizen. Ujaama
testified that he was the one who initially came up with the idea of starting a
jihad training camp in Bly, Oregon. (Tr.3 1281:11–13.) He further testified that, in creating the
camp, he conspired with Kassir; Abu Hamza, a British imam; Haroon Aswat (“Aswat”),
Kassir’s travel companion to the Pacific Northwest; and Semi Osman, a
Seattle-based imam. Ujaama stated that Kassir’s role was to be that of “the
trainer.” (Id. at 1281:7–10, 1281:14–17.) According to Ujaama, Kassir
admitted as much shortly after arriving in the Pacific Northwest:
*2 Q. Did Mr. Kassir say anything to you at any point in
Seattle–Tacoma or in the Bly ranch as to what his intentions were for the Bly
property?
A. Yes, sir.
Q. What did he tell you?
A. He told me that Abu Hamza had sent him,
and that he asked me about the recruits.
Q. Did he say why Abu Hamza had sent him?
A. Yes, sir. He had mentioned the jihad
training for the recruits.
(Id. at 1331:2–11.) Ujaama testified
that he was upset when he learned that Abu Hamza had shared his idea of
starting a training camp with Kassir (id. at 1335:7–17, 1463:6–1464:14.),
and stated that, as a general matter, he disliked Kassir (id. at 1448:17–1451:19).
According to Ujaama, disagreements between him and Kassir eventually drove
Ujaama to leave the Bly training camp and, later, the Seattle area as well. (Id.
at 1332:21–25, 1336:9–1338:4.) Ujaama also stated at one point that he intended
his conduct to provide support only to the Taliban, as opposed to any other
group such as al Qaeda. (Id. at 1523:24–1524:7.)
The Government corroborated much of Ujaama’s testimony
with physical evidence and the testimony of other witnesses. First, the
Government introduced as evidence a fax that Ujaama sent to Abu Hamza on October
25, 1999, in which Ujaama outlined his idea for the Bly training camp and
stated that he was “expecting the two brothers that we discussed to come in
November.” (Id. at 1318:9–12; Gov’ t’s Ex. 624.) The Government then
offered evidence showing that Kassir and Aswat arrived in the United States
that November (id. at 1631:8–1632:17), and that Kassir had a copy of
Ujaama’s fax (id. at 933:12–14, 1034:13–22, 1335:7–9). Second, the
Government called Ayat Hakima—the wife of the owner of the Bly camp property—and
Angelica Osman—Semi Osman’s wife—both of whom testified that Kassir admitted in
their presence that Abu Hamza had sent him to Bly to train people for jihad. (Id.
at 929:15–930:12, 1033:15–18, 1053:3–17.) Third, the Government called Jabari
Anderson and Nathan Bishop, one-time members of the Seattle mosque, who
testified that Kassir provided hand-to-hand combat and weapons training—such as
how to modify an AK–47 to launch a grenade—at the mosque and had encouraged his
trainees to engage in terrorist acts. (Id. at 1217:12–1218:11; 1567:1–1568:15.)
The Government also offered evidence linking this jihad
training to al Qaeda. According to Nathan Bishop, Kassir explained that the
training was the “first lesson that every muj ahid [holy warrior] needs to know
... [i] f you ever go up or get to go up to the mountains.” (Id. 1210:10–15.)
Bishop explained that he understood “going up to the mountains” to be a
reference to “the mountains of Afghanistan or Kashmir or maybe to Afghanistan
[sic].” (Id. at 1210:16–19.) As the Government’s terrorism expert, Evan
Kohlman (“Kohlman”), explained, at that time in Afghanistan, the Taliban and al
Qaeda were jointly fighting against the Northern Alliance. (Id. at
732:21–733:19.) The Government also read a stipulation indicating that Aswat,
Kassir’s travel companion, signed a ledger in an al Qaeda safe house in
Karachi, Pakistan, that contained the fingerprints of al Qaeda’s chief
operational planner, Khalid Sheik Mohammed. (Id. at 984:10–985:16.)
*3 In support of the Terrorist Websites Charges, the
Government offered evidence showing that the IMC distributed jihadi training
materials, such as the Mujahideen Explosives Handbook, the Mujahideen Poisons
Handbook, and Muskar.doc, a manual on how to run a terrorist training camp.
Kohlman explained how the dissemination of these materials benefitted al Qaeda:
Q. How can a document like [Muskar.doc]
posted on the Internet help al Qaeda?
A. Again, al Qaeda is not just an
organization. Al Qaeda also views itself as an ideology. It hopes to encourage
people around the world who are unable to travel to places like Afghanistan or
Somalia or wherever else, it hopes to encourage those people to do what they
can at home.
Particularly after 9/11, there was a tremendous
emphasis on the training camps are closed [sic]. You can’t just come to
Afghanistan now to get training and go home. Now the battle is in your own
backyard. The battle is what you yourself are able to do with your own
abilities, so you should do whatever you can. It is an individual duty upon you
to participate in the struggle. It is not about Usama Bin Laden and it’s not
about al Qaeda. It is about the methodology and the ideology behind them. If
you follow the same methodology and the same ideology, then you too can be al
Qaeda.
These people that are out there are often in
countries where this kind of training is not widely available to them or at
least these kind of instructional manuals are not widely available. The idea
behind distributing a manual like this is to allow homegrown individuals to
self-radicalize and train themselves for their own missions.
That’s exactly the way that these documents
have been used. They turn up on people’s computers who are arrested in the
United Kingdom and here [in] the United States who aspire to become terrorists.
Not all of these people are al Qaeda members. Very frequently they’re not. But,
they want to become that. And they are willing to carry out acts of violence in
the name of al Qaeda, even on their own, and they perceive that they can get
there by following these manuals.
(Id. at 815:2–816:7.)
The Government then offered evidence linking Kassir to
the IMC. Special Agent Philip Swabsin (“Special Agent Swabsin”) testified that
the “slack space” on Kassir’s computers—that is, data that was deleted but not
permanently so—demonstrated that Kassir regularly used the e-mail addresses
khadija1417 @hotmail.com and zubeiddah1417@hotmail.com. (Id. at 1948:11–24,
1951:12–1952:6, 1953:2–17.) According to Kohlman, these e-mail addresses
appeared on much of the propaganda distributed through IMC. (Id. at
787:15–788:8.)
Special Agent Swabsin solidified the link through
business records from Internet service providers that showed that the e-mail
addresses were used to create many of the IMC websites, such as uddat.8k.com. (Id.
at 1882:15–21, 1893:4–9.) The slack space of Kassir’s computers also contained
jihadi materials similar or identical to those found on the IMC websites. For
example, Special Agent Swabsin stated that his search of Kassir’s computers
revealed a video clip of members of “al-Qaeda, al-jihad group in Iraq”
executing a masked hostage (id. at 1902:21–1904:10), and an image of
Usama bin Laden and Dr. Ayman al-Zawahiri featuring the IMC logo and the Arabic
phrase “I swear by almighty God America will not enjoy security” (id. at
1981:14–1982:9).
*4 To show that Kassir had co-conspirators for the
Terrorist Websites Charges, the Government offered testimony that people other
than Kassir had access to the IMC e-mail accounts and websites. Special Agent
Swabsin testified that, during his investigation of the IMC, he discovered that
people were accessing one of the IMC e-mail accounts from Internet protocol (“IP”)
addresses that resolved to countries other than Sweden, where Kassir lived at
the time. (Id. at 2003:3–14.) Special Agent Swabsin concluded from this “that
more than one person was attempting to access that e-mail account.” (Id.
at 2003:15–17.) During cross-examination, Special Agent Swabsin also testified
that a number of the IMC websites were updated at times that Kassir was
incarcerated and without access to the Internet. (Id. at 2047:16–2058:23.)
Finally, the Government introduced documents downloaded from the IMC authored
by people other than Kassir, some of which contained statements thanking Kassir
for his assistance.4 (Id. at 808:2–803:1, 814:17–815:2, 1934:15–1935:17)
After completion of the trial, the jury found Kassir
guilty on all twelve counts.
II. DISCUSSION
Kassir sets forth three general arguments: (1) The
evidence at trial was insufficient to establish the existence of a knowing
agreement between Kassir and his alleged co-conspirators, an element of Counts
One, Three, Five, Six, Eight, and Ten. (2) The evidence at trial was
insufficient to establish that he provided material support or resources to al
Qaeda, an element of Counts Two, Four, Seven, and Nine, charging Kassir with
violations of 18 U.S.C. §§
2339A and 2339B.
(3) Kassir’s convictions for violations of 18 U.S.C. §
2339B are unconstitutional on the ground of vagueness.5
A. Legal Standard
1. Federal Rule of
Criminal Procedure 29
“[T] he court on the defendant’s motion must enter a
judgment of acquittal of any offense for which the evidence is insufficient to
sustain a conviction.” Fed.R.Crim.P. 29.
However, defendants have to carry “a heavy burden” to obtain such relief. United States v.
Desena, 260 F.3d 150, 154 (2d Cir.2001). Specifically, “The verdict
will be sustained unless no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Zagari, 111 F.3d 307, 327 (2d Cir.1997) (internal quotation marks
omitted). When considering a Rule 29
motion, the court must view the evidence “in the light most favorable to the
government.” Id.; accord United States v.
Abelis, 146 F.3d 73, 80 (2d Cir.1998) (“We view the evidence as a
whole in the light most favorable to the government, drawing all inferences and
resolving all issues of credibility in the government’s favor.” (internal
quotation marks omitted)). In determining whether there was sufficient evidence
to support the verdict, “the court must be careful to avoid usurping the role
of the jury.” United States v.
Guadagna, 183 F.3d 122, 129 (2d Cir.1999). In other words, the court
may not “substitute its own determination of ... the weight of the evidence and
the reasonable inferences to be drawn for that of the jury.” Id.
*5 This “standard of deference is especially important when
reviewing a conviction of conspiracy.” United States v.
Pitre, 960 F.2d 1112, 1121 (2d Cir.1992). “This is so because a
conspiracy by its very nature is a secretive operation, and it is a rare case
where all aspects of a conspiracy can be laid bare in court with the precision
of a surgeon’s scalpel.” Id. (internal quotation marks omitted). As a
result, “the existence of and participation in a conspiracy may be established
through circumstantial evidence.” Id. “However, there must be some
evidence from which it can reasonably be inferred that the person charged with
conspiracy knew of the existence of the scheme alleged in the indictment and
knowingly joined and participated in it.” United States v.
Gaviria, 740 F.2d 174, 183 (2d Cir.1984). “[O]nce a conspiracy is
shown to exist, the evidence sufficient to link another defendant to it need
not be overwhelming.” United States v.
Casamento, 887 F.2d 1141, 1156 (2d Cir.1989).
2. Federal Rule of
Criminal Procedure 33
“Upon the defendant’s motion, the court may vacate any
judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P.
33(a). “The ultimate test on a Rule 33
motion is whether letting a guilty verdict stand would be a manifest injustice
.” United States v.
Ferguson, 246 F.3d 129, 133–34 (2d Cir.2001). In essence, “[t]here must
be a real concern that an innocent person may have been convicted.” United States v.
Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992). “Although a trial court
has broader discretion to grant a new trial pursuant to Rule 33
than to grant a motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29,
... that discretion should be exercised sparingly.” Id.
B. Application
1. Evidence of Conspiracy
Kassir argues that there was insufficient evidence to
establish the existence of a knowing agreement between him and his alleged
co-conspirators—a necessary element of all the conspiracy counts in the Jihad
Training Charges (Counts One, Three, and Five) and the Terrorist Websites
Charges (Counts Six, Eight, and Ten). Regarding the Jihad Training Charges,
Kassir contends that his arrival in the United States with Aswat shortly after
Ujaama sent his fax to Abu Hamza merely constitutes a “suspicious circumstance[
].” (Def.’s Mem. 6.) Kassir submits that a suspicious circumstance of this kind
is insufficient to prove Kassir’s knowing participation in the conspiracy.
Kassir further argues that the fact that Ujaama was angry that Kassir learned
about his plans for Bly, had disputes with Kassir, and eventually left the area
indicates that Kassir was not a part of any conspiracy hatched by Ujaama.
Finally, Kassir points to Ujaama’s testimony that he intended the camp to
support the Taliban as opposed to Al Qaeda as evidence that there was no actual
agreement between Kassir and Ujaama.
Kassir ignores the substantial evidence from which the
jury could permissibly conclude that he knowingly participated in the jihad
training conspiracy. First, Ujaama’s testimony that Kassir admitted that he had
been sent by Abu Hamza to conduct jihad training is by itself sufficient to
support the jury’s verdict. See United States v.
Gordon, 987 F.2d 902, 906 (2d Cir.1993) (“A conviction may be
sustained on the basis of the testimony of a single accomplice, so long as that
testimony is not incredible on its face and is capable of establishing guilt
beyond a reasonable doubt.”). The jury need not have relied solely on Ujaama’s
say-so, however, since there was strong corroborating evidence in the form of
the fax Ujaama sent to Abu Hamza, which Kassir brought with him to the Pacific
Northwest; the testimony of Ayat Hakima and Angelica Osman, who also heard
Kassir admit that Abu Hamza had sent him to conduct jihad training; and the
testimony of Jabari Anderson and Nathan Bishop, who described the kind of
training Kassir willingly provided them.
*6 The strength of the evidence against Kassir
distinguishes this case from those built on mere “suspicious circumstances.” See,
e.g., United States v.
Tyler, 758 F.2d 66, 69 (2d Cir.1985) (finding insufficient evidence
of a conspiracy where defendant introduced a willing drug buyer to a willing
drug seller); United States v.
Young, 745 F.2d 733, 764 (2d Cir.1984) (finding insufficient
evidence that Defendant knowingly entered conspiracy where she possessed a
firearm, had some unexplained wealth, and associated with members of
conspiracy); United States v.
Gaviria, 740 F.2d 174, 184 (2d Cir.1984) (finding defendant’s
association with members of a conspiracy and presence in a car containing drugs
insufficient to show knowing participation). Unlike those cases, here there is
ample evidence that Kassir was aware of the conspiracy and was a knowing,
active participant.
Kassir’s other arguments are equally unavailing. Although
Ujaama and Kassir had a number of disagreements during the course of the
conspiracy, it was within the jury’s discretion to conclude that these did not
rise to the level of nullifying the conspiracy itself. And even though Ujaama
may not have intended to support al Qaeda, there was sufficient evidence for
the jury to conclude that Kassir and his other co-conspirators had this intent:
Kassir stated that the training he provided was the “first lesson” for those
who would go “up into the mountains,” a reference to fighting under the Taliban
and al Qaeda in Afghanistan; and after attending training sessions led by
Kassir, Aswat actually did travel to that region of the world where he at one
point stayed in an al Qaeda safe house.
Regarding the Terrorist Websites Charges, Kassir does not
dispute the sufficiency of the evidence linking him with the IMC, but argues
that there is no evidence that he had any co-conspirators. He takes issue with
Special Agent Swabsin’s conclusion that people other than Kassir collaborated
on the IMC because the relevant e-mails and websites were accessed from IP
addresses outside of Sweden. Kassir notes that Kohlman undercut Special Agent
Swabsin’s conclusion when he stated that it is possible to disguise the
location and identity of one’s IP address.
Kassir’s argument is unpersuasive. Although it is
potentially possible that Kassir disguised his own IP address to make it appear
that an IMC e-mail account was accessed from outside of Sweden, the jury was
not required to reach this conclusion or to reject alternative explanations. See
United States v.
Best, 219 F.3d 192, 200 (2d Cir.2000) (“The government’s proof need
not exclude every possible hypothesis of innocence, and where there are
conflicts in the testimony, we defer to ... the jury’s choice of the competing
inferences that can be drawn from the evidence.” (citations and internal
quotation marks omitted)). Furthermore, Kassir’s argument fails to address
other evidence that he had co-conspirators in maintaining the IMC. For example,
individuals other than Kassir updated the IMC websites while he was
incarcerated and without Internet access, and people other than Kassir prepared
certain IMC documents and, in some of those documents, thanked Kassir for his
assistance.
*7 The Court finds that there was sufficient evidence to
sustain a conviction against Kassir for all of the conspiracy counts. Further,
the Court finds that allowing these convictions to stand would not be a
manifest injustice. Therefore, the Court denies Kassir’s motion under Rule 29
and Rule 33
on the conspiracy counts.
2. Providing Material Support and Resources
Kassir argues that there is insufficient evidence to
support his conviction for providing material support or resources to al Qaeda
in violation of 18 U.S.C. §§
2339A and 2339B
for both the Jihad Training Charges (Counts Two and Four) and the Terrorist
Websites Charges (Counts Seven and Nine). 18 U.S.C. §
2339A reads,
Whoever provides material support or
resources or conceals or disguises the nature, location, source, or ownership
of material support or resources, knowing or intending that they are to be used
in preparation for, or in carrying out, a violation of [18 U.S.C. § 956
(conspiracy to kill, kidnap, maim, or injure persons or damage property in a
foreign country), among other statutes] ... or attempts or conspires to do such
an act, shall be fined under this title, imprisoned not more than 15 years, or
both, and, if the death of any person results, shall be imprisoned for any term
of years or for life.
18 U.S.C. §
2339B reads,
Whoever knowingly provides material support
or resources to a foreign terrorist organization, or attempts or conspires to
do so, shall be fined under this title or imprisoned not more than 15 years, or
both, and, if the death of any person results, shall be imprisoned for any term
of years or for life. To violate this paragraph, a person must have knowledge
that the organization is a designated terrorist organization ..., that the
organization has engaged or engages in terrorist activity (as defined in ... [8 U .S.C. §
1182(a)(3)(B) ] ), or that the organization has engaged or engages
in terrorism (as defined in ... [22 U.S.C. §
2656f (d) (2) ] ).
Both statutes define “material support or resources” the
same way:
[A]ny property, tangible or intangible, or
service, including currency or monetary instruments or financial securities,
financial services, lodging, training, expert advice or assistance, safehouses,
false documentation or identification, communications equipment, facilities,
weapons, lethal substances, explosives, personnel (1 or more individuals who
may be or include oneself), and transportation, except medicine or religious
materials.
18 U.S.C. §§
2339A(b)(1), 2339B(g)(4).
They further define “training” as “instruction or teaching designed to impart a
specific skill, as opposed to general knowledge,” 18 U.S.C. §
2339A(b)(2), and “expert advice or assistance” as “advice or
assistance derived from scientific, technical or other specialized knowledge,” 18 U.S.C. §
2339A(b)(3).
Kassir argues as a preliminary matter that there was
insufficient evidence that he knew that al Qaeda was a terrorist organization
or engaged in terrorist activity, a necessary element of 18 U.S.C. §
2339B. The Court rejects this argument. The jury could permissibly
conclude from the materials found on Kassir’s computer—such as the image of
Usama bin Laden above the phrase “America shall not enjoy security” and the
clip of members of al-Qaeda al-Jihad in Iraq executing a hostage—that Kassir
knew al Qaeda has engaged in terrorist activity.
*8 Kassir’s primary argument is that there is insufficient
evidence that he provided “material support or resources” to al Qaeda. As to
the Jihad Training Charges, he argues that the Government failed to link the
support he provided to the underlying goal of the conspiracy, namely, to
murder, maim, or kidnap people overseas. He also notes that none of the jihad
trainees called by the Government to testify believed that they were being
trained with a view toward aiding al Qaeda. These arguments fall in the face of
Kassir’s allusions to “going up in the mountains” and Aswat’s traveling to an
al Qaeda safe house in Pakistan. This not only tied Kassir to a conspiracy to
harm people overseas but it allowed the jury to infer that Kassir intended the
jihad training to benefit al Qaeda.
Kassir next argues that even before he arrived in the
Pacific Northwest, members of the Seattle mosque had engaged in weapons and
combat training. He further claims that, lacking specialized training himself,
he could only impart general knowledge, which 18 U .S.C. 2339B
expressly does not prohibit. 18 U.S.C. §
2339A(b)(2). However, Kassir overlooks the evidence that he provided
specific specialized training—such as how to modify an AK–47 to launch grenades—to
mosque members like Nathan Bishop and Jabari Anderson who had no prior training
of this kind.
As to the Terrorist Websites Charges, Kassir argues that
his role falls short of providing material support or resources to al Qaeda.6 He notes that the IMC training materials were available
elsewhere on the Internet, suggesting (apparently) that they therefore should
not be considered “expert advice or assistance” or “training.” The Court need
not consider the dubious legal foundation for this argument since it is
inconsistent with Kohlman’s testimony, which the Court accepts as true for the
purposes of this motion. See Abelis, 146 F.3d at 80.
Kohlman testified that the training materials provided through the IMC were
actually not available elsewhere on the Internet at the time of the offense: “I
only know of one organization that had most of the materials that came out from
the IMC, and that was the IMC.” (Tr. 848:12–14.)
Kassir also argues that, even if the training manuals
distributed through the IMC do qualify as “expert advice or assistance” or “training,”
there is insufficient evidence that the IMC provided them to al Qaeda,
specifically. Kohlman directly contradicted this claim, however. The import of
his testimony was that IMC manuals “turn[ed] up” on the computers of terrorists
arrested in the United Kingdom and the United States, some of whom were members
of al Qaeda. (Tr. at 816:1–816:7.)
There was sufficient evidence for the jury to conclude
that Kassir provided material support and resources to al Qaeda both by
training young men in the Pacific Northwest for jihad and by distributing
training manuals through the IMC. This conduct falls firmly under the
definition of providing “training” or “expert advice or assistance” as defined
by 18 U.S.C. §§
2339A and 2339B.
The Court further finds that allowing the material support convictions to stand
would not be a manifest injustice. Kassir’s motion on these counts is denied.
3. Vagueness Challenge to 18 U.S.C. §
2339B
*9 Kassir’s final argument is that his convictions for
conspiracy to violate 18 U.S.C. §
2339B (Counts Three, Four, Eight, and Nine) are constitutionally
infirm. Specifically, Kassir argues that the statute is unconstitutionally
vague as applied in this case.
Courts evaluate as applied vagueness challenges under a
two-part test: “[The court must] first determine whether the statute gives the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited and [second] consider whether the law provides explicit standards
for those who apply it.” Linares Huarcaya
v. Mukasey, 550 F.3d 224, 231 (2d Cir.2008). However, when
a statute is judged on an as applied basis, “one whose conduct is clearly
proscribed by the statute cannot successfully challenge it for vagueness.” United States v.
Nadi, 996 F.2d 548, 550 (2d Cir.1993); see also Thibodeau v.
Portuondo, 486 F.3d 61, 69 (2d Cir.2007) (“Even assuming,
arguendo, that the statute did not provide sufficient objective, explicit
criteria to prevent arbitrary enforcement, the statute as applied to
[defendant] would not be unconstitutionally vague because the conduct to which
the statute was applied falls within the ‘core meaning’ of the statute.”).
Kassir’s as applied vagueness challenge fails since 18 U.S.C. §
2339B clearly applied to Kassir’s conduct. Knowingly providing jihad
training to young men and disseminating training manuals online for the benefit
al Qaeda implicates the “core meaning” of a statute that proscribes knowingly
providing “training” and “expert advice or assistance” to a foreign terrorist
organization. Cf. United States v.
Warsame, 537 F.Supp.2d 1005, 1018 (D.Minn.2008) (rejecting vagueness
challenge to 18 U.S.C. §
2339B, finding that “the alleged participation in an Al Qaeda
training camp is unambiguously encompassed within the plain meaning” of the
statute). The Court therefore rejects Kassir’s as applied vagueness challenge.
To the extent Kassir’s vagueness challenge can be
construed as a facial challenge, the Court finds it equally meritless. Courts
entertaining a facial vagueness challenge first “must determine whether the
challenged statute ‘reaches a substantial amount of constitutionally protected
conduct.’ “ United States v.
Shah, 474 F.Supp.2d 492, 496 (S.D.N.Y.2007) (quoting Kolender v.
Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).
Courts have uniformly found that 18 U.S.C. §
2339B does not reach such conduct. See, e.g., Humanitarian Law
Project v. Reno, 205 F.3d 1130, 1134–36 (9th Cir.2000) (finding
that 18 U.S.C. §
2339B does not impose guilt by association or criminalize advocacy);
United States v.
Taleb–Jedi, 566 F.Supp.2d 157, 183–84 (E.D.N.Y.2008) (“ § 2339B
does not reach a substantial amount of constitutionally protected speech or
association to warrant invalidation because the statute does not prohibit mere
membership or association and only criminalizes the conduct of providing
material support or resources to designated FTOs.”); United States v.
Shah, 474 F.Supp.2d 492, 499 (S.D.N.Y.2007); United States v.
Assi, 414 F.Supp.2d 707, 719 (E.D.Mich.2006). This Court concurs.7
*10 Since 18 U.S.C. §
2339B does not reach a substantial amount of constitutionally
protected conduct, Kassir can only sustain his facial vagueness challenge if he
“ ‘demonstrate[s] that the law is impermissibly vague in all of its
applications.’ “ Farrell v.
Burke, 449 F.3d 470, 496 (2d Cir.2006) (quoting Hoffman Estates
v. Flipside, Hoffman Estates, 455 U.S. 489, 496, 102 S.Ct. 1186, 71 L.Ed.2d 362
(1982)). Kassir cannot do so for the simple reason that, as
explained above, the statute is not impermissibly vague as applied to him. See
United States v.
Assi, 414 F.Supp.2d 707, 719 (E.D.Mich.2006) (employing identical
logic); see also id. (holding that “the statute could not be viewed as
impermissibly vague in cases where the ‘material support’ took the form of ...
false documentation or explosives”).
Although the above case law compels the Court to reject
Kassir’s vagueness challenge, the Court briefly considers two additional
arguments that Kassir sets forth. First, Kassir argues that the Government’s
witnesses created a vagueness problem by defining the term “jihad” in such a
way that it included legal activities. Kassir fails to explain, however, how
this renders vague a statute that never uses the term “jihad.” He argues that
the Government’s witnesses created a second vagueness problem by defining al Qaeda
in such a way that Kassir could be convicted under 18 U.S.C. §
2339B simply for sharing al Qaeda’s ideology or taking actions that,
by coincidence, al Qaeda sanctions. Even assuming arguendo that this is true,
the evidence in this case demonstrated that Kassir did more than simply share
al Qaeda’s ideology and that it was no accident that his actions benefitted al
Qaeda. Therefore, these problems are hypothetical and, as such, do not change
the Court’s analysis. See Perez v.
Hoblock, 368 F.3d 166, 175 (2d Cir.2004) (holding that courts
assessing as applied challenges should not consider “hypothetical situations at
the periphery of the [law’s] scope”); Hill v. Colo., 530 U.S. 703,
733, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (“[S]peculation about
possible vagueness in hypothetical situations not before the Court will not
support a facial attack on a statute when it is surely valid in the vast
majority of its intended applications.”).
Thus, the Court rejects Kassir’s vagueness challenge.
CONCLUSION
Kassir’s motion under Rules 29
and 33 of the
Federal Rules of Criminal Procedure is denied.
SO ORDERED.
Not Reported in F.Supp.2d, 2009 WL 2913651