Opinion
S2 04 Cr. 356 (JFK).
April 8, 2009
For the United States of America: LEV L. DASSIN, United States Attorney for the Southern District of New York, New York, New York, Of Counsel: Michael Farbiarz, Eric B. Bruce, Assistant United, States Attorneys.
For the Defendant: Mark S. DeMarco, Esq., Bronx, New York, Edgardo Ramos, Esq., New York, New York.
OPINION and ORDER
Defendant Oussama Abdullah Kassir, a/k/a "Abu Abdulla" a/k/a "Abu Khadija," is charged in a second superseding indictment (the "Indictment") with, among other things, providing and conspiring to provide material support to the foreign terrorist organization al Qaeda. Trial is set to commence on April 13, 2009. Before the Court is Defendant's motion (doc. # 63) to strike from the Indictment what he believes is prejudicial surplusage, including references to Usama Bin Laden as the leader of al Qaeda. For the reasons below, the motion is granted in part and denied in part.
Below, the Court refers to the redacted Indictment supplied by the Government in a letter to defense counsel dated March 17, 2009. In his motion, Kassir also requested individual voir dire of jurors. The Court granted that request at a pre-trial conference held on March 31, 2009.
Background
The charges against Kassir arise from his alleged involvement in a plot to establish a jihad training camp in Bly, Oregon (Counts One through Five), and from his alleged establishment and operation of several terrorist websites (Counts Six through Twelve). The Court presumes familiarity with the underlying allegations in this case, which are detailed in prior decisions.See United States v. Kassir, No. 04 Cr. 356 (JFK) (S.D.N.Y. April 2, 2009); 2008 WL 2653952 (S.D.N.Y. July 3, 2008).
The counts charging Kassir with providing or conspiring to provide material assistance to al Qaeda through the two plots recite the fact that said terrorist organization is "led by Usama Bin Laden." (Indictment ¶¶ 6, 8, 16, 18.)
The Indictment also contains certain broadening phrases to which Kassir objects. Throughout the Indictment, it is alleged that he committed the charged conduct "with others known and unknown." (See, e.g., id. ¶¶ 1, 4, 5, 8 (emphasis added).) In the overt acts section to Count One, which charges conspiracy to support terrorists through the jihad training camp plot, it reads in pertinent part
In furtherance of said conspiracy, and to effect the illegal object thereof, the following overt acts, among others, were committed in the Southern District of New York, and elsewhere:
. . . .
h. In or about December 1999, after they arrived at the Bly, Oregon property, [Kassir] and others discussed a plan to kill truck drivers traveling through Oregon and then steal their cargo for money and goods to support the jihad training camp.
(Id. ¶ 3 (emphasis added).) Similarly, Count Six charges a conspiracy to support terrorists through the establishment and operation of the terrorist websites. The overt acts section to Count Six reads in pertinent part
a. In or about December 2001, [Kassir] established a website with the web address mii.faithweb.com, which contained, among other things, terrorist materials and information and instructions on how to build a bomb.
b. In or about December 2001, [Kassir] established a website . . . with the web address www.alqqa3qa3.8m.com, which contained, among other things, terrorist materials and information and instructions on how to build bombs and make poisons.
(Id. ¶ 13 (emphasis added).)
The other broadening language to which Kassir objects appears directly in the charging paragraphs of Counts Eleven and Twelve. Each count alleges that Kassir violated a section of the criminal code by establishing and operating numerous websites "which contained, among other things, terrorist materials and information and instructions on how to build bombs and make poisons." (Id. ¶¶ 21-22 (emphasis added).)
On March 17, 2009, Kassir moved pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure, and the Fifth and Sixth Amendments, to strike from the Indictment the phrases highlighted above and all references to Bin Laden, on the ground that they are unnecessary and prejudicial.
Discussion
"It has long been the policy of courts within the Southern District to refrain from tampering with indictments." United States v. Bin Laden, 91 F. Supp. 2d 600, 621 (S.D.N.Y. 2000) (quoting United States v. Jimenez, 824 F. Supp. 351, 369 (S.D.N.Y. 1993)). "Motions to strike surplusage from an indictment will be granted only where the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial." United States v. Mulder, 273 F.3d 91, 100 (2d Cir. 2001) (quoting United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990)). "If evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken." Scarpa, 913 F.2d at 1013 (brackets omitted). Because this is an "exacting standard," id. at 1013, "only rarely is alleged surplusage stricken from an indictment." United States v. Gotti, 42 F. Supp. 2d 252, 292 (S.D.N.Y. 1999).A. References to Bin Laden
Each of the counts charging Defendant with providing or conspiring to provide material support to al Qaeda states that said terrorist organization is "led by Usama Bin Laden." Defendant argues that this is unnecessary because proof of al Qaeda's leadership is not an element of the crime. He also claims that references to Bin Laden would inflame the jury and encourage it to find Defendant guilty by association.
This argument fails for two reasons. First, the leadership of the organization that Defendant is charged with supporting is relevant and admissible as background information. See Mulder, 273 F.3d at 100 ("Because the six challenged paragraphs . . . discussed background evidence that was properly admissible and relevant, the district court did not err by refusing to strike these paragraphs from the indictment."). More importantly, the Government plans to offer evidence that Defendant committed the charged conduct with the intent to support Bin Laden, which is relevant for the inference that Defendant also intended to support al Qaeda. For example, the Government will offer evidence that, on his way to the United States to establish a jihad training camp, Defendant carried with him a letter he wrote to Bin Laden stating "we love you here" and "I ask God to help you here, and support you to fulfill his desire." The letter bears the seal of the Islamic Media Center, the organization through which Defendant is alleged to have operated the terrorist websites. This evidence would tend to show that Defendant's actions in the United States and on behalf of the Islamic Media Center were knowingly carried out to support al Qaeda.
Indeed, Defendant's express intent to support al Qaeda's leader would lend a strong inference of support for the organization itself and would not be unfairly prejudicial in the least. Because such evidence is relevant and admissible, the Indictment's references to Bin Laden may not be stricken.
B. Broadening Phrases
Defendant seeks to strike the words: "others known and unknown" from everywhere it appears in the Indictment; "among others" and "and elsewhere" from paragraph 3 of Count One; "with others" from sub-paragraph 3(h) of Count One; and "among other things" from sub-paragraphs 13(a) and (b) of Count Six, paragraph 21 of Count Eleven, and paragraph 22 of Count Twelve.
As discussed above, surplus language generally may be stricken only if it is irrelevant to the charge and inflammatory. Mulder, 273 F.3d at 100. In certain instances, however, language must be stricken because it impermissibly expands the charge.
The leading case on this is Judge Weinfeld's decision in United States v. Pope, 189 F. Supp. 12 (S.D.N.Y. 1960). There, charging paragraphs in the indictment alleged that a statement by defendants was materially false and misleading because, "among other things," the statement contained a particular falsehood. Id. at 25 n. 48. The court struck the quoted phrase because it "would permit the prosecution to go beyond the specific charge of falsity made by the grand jury."Id. at 25. The language impermissibly delegated to the prosecution the authority to enlarge the specific charges, which could have resulted in "depriving [the] defendant of his constitutional right to be accused of a felony offense only on the basis of a grand jury indictment." Id. at 25-26.
The problem identified in Pope only arises, however, if the broadening language appears in a charging paragraph. In a later case, United States v. Mayo, 230 F. Supp. 85 (S.D.N.Y. 1964), Judge Weinfeld considered a challenge to similar language contained in a section alleging the means and methods by which the defendant committed the charged offense. When contained therein, the language did not impermissibly broaden the charge but instead went to the proof the Government would offer to sustain it. Id. at 86. Such language was "to be equated to allegations of overt acts in a conspiracy charge where the government is not required to set forth all the acts relied upon to effectuate the conspiracy." Id. Courts in this district and one circuit court have relied upon the distinction drawn in Mayo to find similar language permissible. See United States v. Haldeman, 559 F.2d 31, 126 n. 265 (D.C. Cir. 1976); United States v. Chovanec, 467 F. Supp. 41, 46 (S.D.N.Y. 1979); United States v. DePalma, 461 F. Supp. 778, 798-99 (S.D.N.Y. 1978);United States v. Washington, 947 F. Supp. 87, 90 (S.D.N.Y. 1996) ("[W]hen a means paragraph, which refers to the matter of proof to sustain the charges, contains surplusage, a court should not strike the language."); United States v. Booth, No. 99 Cr. 378 (LBS), 1999 WL 1192317, at *11 (S.D.N.Y. Dec. 14, 1999). The Second Circuit has noted in dicta that this distinction is "not without force." United States v. Caine, 441 F.2d 454, 456 (2d Cir. 1971).
In this case, the charging paragraphs to Counts Eleven and Twelve allege that Defendant committed the crimes charged therein by establishing websites which contained, "among other things," certain specific materials and information. The Government consents to the removal of the quoted language, conceding that, under Pope, the language could impermissibly expand the specific charges returned by the grand jury. Therefore, Defendant's motion to strike is granted with respect to Counts Eleven and Twelve.
The other broadening phrases to which Defendant objects do not impermissibly broaden the charges against him. Moreover, they are neither irrelevant nor inflammatory. The allegation that Defendant committed the charged offenses with "others known and unknown" does not insinuate other crimes not charged. That the Defendant allegedly acted with other people plainly is relevant and is not inflammatory. Furthermore, there is no bar to an indictment's reference to anonymous, unindicted co-conspirators. See DePalma, 461 F. Supp. at 800.
The allegation in Count One that Defendant committed certain overt acts, "among others," likewise is permissible. "The Government need not, when charging conspiracy, set out with precision each and every act committed by the conspirators in the furtherance of the conspiracy." United States v. Cohen, 518 F.2d 727, 733 (2d Cir. 1975); see also Mayo, 230 F. Supp. at 86. Defendant complains that the phrase serves no purpose. To the contrary, it clarifies that the list of overt acts which follows is not exhaustive. The allegation that the overt acts were committed in the Southern District of New York "and elsewhere" is proper as well. Were the quoted language struck, the sentence falsely would state that all overt acts in furtherance of the Bly, Oregon plot took place in this district. Similarly, there is nothing wrong with the allegation in paragraph 3(h) of Count One that Defendant "and others" discussed a plan to kill truck drivers traveling through Oregon. A discussion requires more than one person.
Finally, the phrase "among other things" as it appears in sub-paragraphs 13(a) and (b) of Count Six is permissible. The language is contained in the overt acts section of that count and, therefore, does not allow an impermissible enlargement of the charge returned by the grand jury. The language serves to clarify that the websites allegedly operated by Defendant in furtherance of the charged conspiracy contained information besides what is listed. The clarification is neither irrelevant nor inflammatory, and so may not be stricken under Rule 7(d).
Conclusion
Defendant's motion to strike surplusage is granted with respect to paragraph 21 of Count Eleven and paragraph 22 of Count Twelve. The Government is directed to provide a redacted copy of the Indictment deleting the words "among other things" from those paragraphs. The motion is denied in all other respects.