United States v. Mostafa
965 F. Supp. 2d 451
S.D.N.Y.2013Background
- Mostafa Kamel Mostafa (aka Abu Hamza) was indicted on eleven counts alleging hostage-taking in Yemen, material-support conspiracies and substantive offenses related to jihad training (Bly, Oregon and Afghanistan), and conspiracy to supply the Taliban in violation of IEEPA; trial was scheduled for March 31, 2014.
- Indictment alleges conduct between 1998–2001: supplying a satellite phone and airtime to hostage-takers in Yemen (two U.S. nationals among hostages); fundraising and facilitation for a Bly, Oregon training camp; funding and travel assistance for recruits to Afghanistan; and use of a website soliciting donations for Taliban programs.
- Defendant moved to dismiss all counts (extraterritoriality/due process, failure to state an offense, insufficiency under §956), for a bill of particulars, and to strike surplusage.
- The court denied the motion to dismiss and the bill of particulars; it denied the motion to strike surplusage but allowed renewal at trial. The court also denied reconsideration based on intervening authority (Vilar).
- The court held that alleged U.S. contacts (e.g., fundraising in the U.S., a U.S. co-conspirator) and statutory text (including explicit extraterritorial jurisdiction in §2339B and amendments to §2339A/§956) supply a sufficient nexus to avoid due-process/extraterritoriality problems.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Extraterritorial reach of counts (Counts 1–2, 7–11) | Government: statutes and facts allege sufficient nexus to U.S. interests and persons | Mostafa: conduct was foreign, lacked sufficient U.S. nexus; extraterritorial application would violate due process | Denied — alleged U.S. contacts, ties to al Qaeda/Taliban, and statutory text/amendments provide adequate nexus; prosecution not fundamentally unfair |
| Failure to state an offense / specificity | Government: indictment tracks statutory language and sufficiently alleges facts to inform defense | Mostafa: allegations are generic and lack the factual particularity required to state crimes | Denied — indictment adequately tracks statutes; factual details are for trial; overt acts and support alleged are sufficient |
| §956 element pleading for §2339A counts (3–4, 7–8) | Government: conspiracy and substantive counts together adequately plead §956 and §2339A elements | Mostafa: indictment fails to identify the underlying §956 conspiracy elements | Denied — counts properly plead conspiracy tied to substantive acts; prior authority supports sufficiency |
| Multiplicity / double jeopardy (paired conspiracy/substantive counts) | Government: separate statutory elements justify separate counts; any multiplicity resolved post-trial/sentencing | Mostafa: paired counts are duplicative and require election | Court declines pre-trial multiplicity ruling; any duplicative convictions to be addressed at sentencing |
Key Cases Cited
- United States v. Siddiqui, 699 F.3d 690 (2d Cir. 2012) (discusses extraterritorial reach of criminal statutes)
- United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011) (upheld extraterritorial application where conduct targeted U.S. interests)
- United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (nexus required where foreign conduct aims to harm U.S. persons/interests)
- United States v. Vilar, 729 F.3d 62 (2d Cir. 2013) (applies Morrison framework to criminal securities statute; clarifies extraterritoriality analysis)
- United States v. Pirro, 212 F.3d 86 (2d Cir. 2000) (indictment must state offense with particularity when statutory meaning is unclear)
- United States v. Bin Laden, 92 F. Supp. 2d 225 (S.D.N.Y. 2000) (bill of particulars considerations in large terrorism indictments)
- Ball v. United States, 470 U.S. 856 (U.S. 1985) (multiplicity resolved at sentencing; vacate duplicative convictions)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (double jeopardy test for separate offenses)
- United States v. Bowman, 260 U.S. 94 (U.S. 1922) (limitations on reading Bowman as broad rule for extraterritorial criminal reach)
- United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975) (indictment need only track statutory language to inform accused)