94 F. Supp. 3d 394
E.D.N.Y2015Background
- Defendants Ahmed, Hashi, and Yusuf are charged in a second superseding indictment with conspiracy to provide material support to al-Shabaab, provision of material support, and attempted provision of material support to a designated foreign terrorist organization, plus receiving military-type training and firearms offenses related to those acts.
- Indictment cites extraterritorial jurisdiction for Counts 1–5; alleged conduct spans 2008–2012 and occurred abroad, with some activity in the United States implied by extraterritorial reach.
- Arrests occurred in Djibouti after illegal border crossing from Somalia to Yemen in 2012; defendants contend they were tortured and later questioned by FBI while in Djiboutian custody.
- Defendants were initially charged in 2012 and were superseded by a first superseding indictment in November 2012, and then by a five-count second superseding indictment on December 1, 2014.
- Government alleges al-Shabaab threatened U.S. interests and that defendants knowingly assisted the organization, with knowledge elements tied to designation as an FTO and/or engagement in terrorist activity.
- Defendants move to dismiss the indictment, seek a bill of particulars, urge in limine restrictions on terminology, request Rule 404(b) notice, and raise suppression and Taint/Grand Jury-related challenges; the court resolves many but not all notable issues at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Extraterrestrial reach of § 2339B | Statutes have extraterritorial reach where defined; defendants abroad with aim to harm U.S. interests. | Due process limits and presumption against extraterritoriality restrict reach; lack of territorial nexus invalidates counts. | Extrantorial application permitted; sufficient territorial nexus and statutory structure confer extraterritorial jurisdiction. |
| Extraterritoriality of § 924(c) | § 924(c) applies to predicate offenses with international terrorism nexus; remains valid post Kiobel/Morrison. | Supreme Court rulings require reassessment of extraterritorial reach for criminal statutes. | § 924(c) applies extraterritorially where underlying predicate offenses have international terrorism nexus; Siddiqui/RJR guidance followed. |
| Elements and pleading of extraterritoriality in Counts 1–3 | Indictment tracks statutory language; asserts extraterritoriality under § 2339B(d)(l). | Counts 1–3 must include explicit extraterritoriality elements (D/E) as essential elements. | Subsections D/E not required as explicit elements; the indictment sufficiently asserts extraterritorial jurisdiction. |
| Vagueness and notice under § 2339B | Statute clearly defines dual mens rea and incorporates defined terms; conduct is clearly within core terrorism concerns. | Broad definitions and incorporation from INA render § 2339B vague and overbroad. | As applied challenges rejected; statute not void for vagueness; definitions are sufficiently clear in context. |
| Multiplicity and duplicitous charges | Counts 2 and 3 relate to different modes (substantive vs. attempt) of the same conspiracy conduct; not duplicitous. | Potential duplicity or need to elect between multiplicitous counts. | Counts appropriately structured; if convictions occur on both, merger rules apply; no premature multiplicity finding at this stage. |
Key Cases Cited
- Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) (presumption against extraterritoriality; requires clear intent for extraterritorial reach)
- United States v. Yousef, 327 F.3d 56 (2d Cir.2003) (territorial nexus and extraterritorial application considerations in terrorism cases)
- Al Kassar, 660 F.3d 108 (2d Cir.2011) (due process territorial nexus; fair warning in extraterritorial enforcement)
- Siddiqui, 699 F.3d 690 (2d Cir.2012) (extraterritorial reach of § 924(c) tied to predicate offenses and structure of statute)
- RJR Nabisco, Inc. v. European Community, 764 F.3d 129 (2d Cir.2014) (predicates in RICO inform interpretation of statutory reach and extraterritoriality)