12 Cr. 0134
E.D.N.Y.2017Background
- Defendant Ibrahim Suleiman Adnan Adam Harun was an al Qaeda operative who trained in Afghan camps, participated in attacks on U.S./Coalition forces (including an attack on FOB Shkin), and conspired to attack U.S. facilities in Africa.
- Harun was captured in Libya (2005), held until 2011, released to an Italian ship (Excelsior), where he declared al Qaeda membership, assaulted Italian officers, and was interviewed by Italian authorities and later by U.S. prosecutors in Mirandized interviews (Sept. 14–16, 2011).
- The Government introduced Harun’s taped Mirandized confessions plus extensive testimonial, forensic, and documentary corroboration (Italian law-enforcement testimony, communications with al Qaeda couriers, U.S. Army eyewitnesses to the FOB Shkin attack, and documentary exhibits).
- Harun was extradited to the U.S. and indicted (2012) on multiple counts including conspiracy to murder U.S. nationals (18 U.S.C. §§ 1111(a), 2332(b)(2)), conspiracy to attack a U.S. government facility (18 U.S.C. § 2332f(a)), material support counts (18 U.S.C. § 2339B), and explosive/firearm counts; jury convicted on Counts One, Two, Three, Four, and Six.
- Post-trial, Harun moved to dismiss or for acquittal on jurisdictional and sufficiency grounds; the Court denied those motions in this Memorandum Decision and Order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2332(b)(2) applies extraterritorially to a conspiracy to kill U.S. nationals abroad | Govt: §2332(b) expressly applies to conduct "outside the United States" and incorporates §1111(a) only as a definition of murder | Harun: §1111(b)’s reference to murders within the special maritime and territorial jurisdiction limits §1111(a) and thus §2332(b)(2) | Court: §1111(b) imposes penalty provisions, not a jurisdictional limit; §2332(b) applies extraterritorially (denied dismissal/acquittal) |
| Whether §2332(d) certification was required/timely | Govt: Certification provided on indictment date satisfies §2332(d) | Harun: Govt failed to produce required certification and thus lacked authority to prosecute | Court: Certification (Deputy AG Feb 21, 2012) was timely and not an element for the jury; defendant’s argument rejected |
| Whether §2332f jurisdiction/exemptions bar prosecution for conspiracy to bomb U.S. facility | Govt: §2332f implements the Terrorist Bombings Convention and covers terrorist groups; exemptions (armed forces in armed conflict) do not cover groups like al Qaeda | Harun: §2332f(d)(1) exemption for "armed forces during an armed conflict" includes al Qaeda, shielding him from §2332f jurisdiction | Court: "Armed forces" as used in §2332f(d)(1) does not encompass al Qaeda; statute’s purpose and legislative history confirm terrorism (including al Qaeda) is covered; dismissal denied |
| Sufficiency of the evidence on Counts One, Three, Four, and predicate for Six | Govt: Confessions plus independent corroborating evidence (eyewitness military testimony, documents, courier materials) satisfy burden | Harun: Insufficient proof of elements/predicates | Court: Evidence was ample (confessions corroborated by extensive testimony/documentary proof); judgment of acquittal denied |
Key Cases Cited
- United States v. Al Kassar, 660 F.3d 108 (2d Cir.) (statutes with explicit extraterritorial language apply abroad)
- United States v. Yousef, 327 F.3d 56 (2d Cir.) (certification requirement under §2332(d) is not an element for jury conviction)
- United States v. Vilar, 729 F.3d 62 (2d Cir.) (discussing extraterritorial application of statutes protecting U.S. interests)
- Salinas v. United States, 522 U.S. 52 (statutory construction disfavors strained readings that exclude conduct clearly within scope of a penal statute)
- Morrison v. National Australia Bank Ltd., 561 U.S. 247 (presumption against extraterritoriality principles)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (limitations on extraterritorial application of statutes)
- United States v. Bruno, 383 F.3d 65 (2d Cir.) (§1111 is the generic federal murder statute)
- United States v. Young, 248 F.3d 260 (4th Cir.) (statutes that incorporate only §1111(a) import its definition of murder, not §1111(b)’s jurisdictional language)
- United States v. Antelope, 430 U.S. 641 (federal murder statute §1111 referenced as federal murder statute)