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United States v. Elshinawy

United States District Court, D. Maryland

December 16, 2016



          Ellen L. Hollander United States District Judge.

         Mohamed Elshinawy, a United States citizen of Egyptian descent, was arrested in Maryland on December 11, 2015, and indicted about a month later, on January 13, 2016. ECF 19. The Indictment, which contains four counts, charges defendant, inter alia, with conspiracy to provide and with providing material support, in the form of personnel, services (including means and methods of communication), and financial services, to a designated foreign terrorist organization, in violation of 18 U.S.C. §§ 2339B(a)(1); 2339B(d)(1)(A), (D), (E), and (F). That foreign terrorist organization is ISIS (Islamic State of Iraq and al-Sham or the Islamic State of Iraq and Syria), also known as ISIL (Islamic State of Iraq and the Levant). ECF 19.

         In particular, Count One charges conspiracy from in or about February 2015 to December 11, 2015, and Count Two charges the substantive offense of providing material support. In Count Three, Elshinawy is charged with the willful collection of funds, “directly and indirectly, with the knowledge that they were to be used, in full or in part, to carry out a terrorist act . . . .”, in violation of 18 U.S.C. §§ 2339C(a)(1)(B); 2339C(a)(3).[1] And, Count Four charges the defendant with knowingly and willfully making materially false statements to agents of the Federal Bureau of Investigation (“FBI”) in July 2015, in violation of 18 U.S.C. § 1001(a)(2).

         Defendant has moved to dismiss the Indictment (ECF 51), supported by a memorandum. ECF 51-1 (collectively, “Motion to Dismiss”). In addition, he has filed a Motion to Sever Count Four of the Indictment (ECF 52), along with a memorandum. ECF 52-1 (collectively, “Motion to Sever”). The government has filed a consolidated opposition (ECF 66, “Opposition”), to which defendant has replied. ECF 79 (“Reply”).[2]

         The Court held a motions hearing on November 10, 2016, at which argument was presented concerning the Motion to Dismiss. Defendant submitted on the Motion to Sever. For the reasons that follow, I shall deny both motions.

         I. Summary of Allegations

         Count One, the conspiracy count, [3] alleges that defendant is a United States citizen of Egyptian descent. ECF 19, ¶ 2. Beginning in or about February 2015 and continuing until on or about December 11, 2015, defendant allegedly conspired with “Coconspirator #1” and others “to knowingly provide material support or resources” to ISIL. Id. ¶ 4. Coconspirator #1 is an Egyptian national who resides overseas and is defendant's childhood friend. Id. ¶ 3. Coconspirator #1 stated that he is a member of ISIL. ECF 19, ¶ 36.

         The Indictment further alleges that on February 17, 2015, during a discussion with Coconspirator #1 through social media, defendant “pledged his allegiance to ISIL . . . [and] asked Coconspirator #1 to convey his message of loyalty to ISIL leadership . . . .” Id. ¶ 10. In addition, defendant “committed himself to committing violent jihad.”[4] Id.Defendant “acknowledged that committing [a terrorist] attack would be a crime in the United States.” Id. The Indictment also alleges that, as part of the conspiracy, defendant and others used “‘pay as you go'” cellular phones. ECF 19, ¶ 5. And, the Indictment alleges that, as part of the conspiracy, defendant used financial accounts and services to transfer funds to the United States “from overseas . . . to conduct a terrorist attack . . . .” Id. ¶ 6.

         The defendant's brother allegedly resides in Saudi Arabia. ECF 66 at 7. In a discussion over social media on March 11, 2015, between defendant and an individual believed to be defendant's brother, defendant encouraged his brother to join ISIL and expressed, among other things, his own desire to “become a mujahideen . . . .” ECF 19, ¶ 11.[5]

         According to the Indictment, on March 23, 2015, defendant received, through a transfer of funds from a company headquartered overseas (the “Overseas Company”), the sum of approximately $1, 500, which he deposited to his online financial account, to be used to conduct a terrorist attack on behalf of ISIL. Id. ¶ 13. Defendant purchased a new cellular phone a few days later, on March 28, 2015, to further his communications with Coconspirator #1 and other ISIL operatives.” Id. ¶ 14. Defendant registered the phone on April 2, 2015, under the name “‘Black Eyes, '” using the address “‘earth planet, Aberdeen, Maryland' . . . .” Id. ¶ 15.[6]

         According to the Indictment, defendant received another transfer of funds from the Overseas Company into his financial account on April 16, 2015, in the approximate sum of $1, 000. Id. ¶ 17. Again, it was “to be used to conduct a terrorist attack on behalf of ISIL.” Id.

         During a conversation over social media on April 22, 2015, defendant and Coconspirator #1 allegedly discussed defendant's “plans to obtain or make some sort of explosive device.” Id. ¶ 18. Shortly thereafter, on April 25, 2015, Coconspirator #1 told defendant “to provide him with an unattributable phone number in order to enable covert communication with ISIL operatives.” Id. ¶ 19. Then, on April 27, 2015, defendant again encouraged an individual, believed to be his brother, to join ISIL. Id. ¶ 20.

         Defendant received another transfer of funds through the Overseas Company on May 1, 2015, in the sum of about $1, 000, again to be used to conduct a terrorist attack on behalf of ISIL. Id. ¶ 21. Defendant reiterated his commitment to ISIL during a discussion with Coconspirator #1 on May 2, 2015. Id. ¶ 22. Then, on May 14, 2015, defendant received a transfer of funds from the Overseas Company, in the approximate amount of $3, 000. Id. ¶ 23. Elshinaway told his brother on May 25, 2015, of his desire to “die as a martyr.” Id. ¶ 24. Defendant received another transfer of funds on June 7, 2015, in the amount of $1, 200, to be used to conduct a terrorist attack. Id. ¶ 26. On June 25, 2015, via social media, Coconspirator #1 attempted to recruit an individual to join ISIL. Id. ¶ 27. Then, on June 28, 2016, defendant received a wire transfer from an individual located in Egypt, in the approximate amount of $1, 000. Id. ¶ 28.

         On July 17, 2015, Elshinaway allegedly made several false statements to agents of the FBI. See ECF 19, ¶ 29; see also ECF 66 at 2. For example, defendant told agents of the FBI that he only received a total of $4, 000 from an overseas ISIL operative. ECF 19, ¶ 29. During a second interview with FBI agents on July 20, 2016, defendant amended his earlier statement and claimed that he had received no more than $5, 200 from an ISIL operative. In fact, he had received over $8, 000. ECF 19, ¶ 31.[7]

         In its Opposition, the government asserts that a review of bank and business records indicate that the defendant spent at least $1, 350 of the money in question to purchase communication devices, such as phones, calling cards, a laptop computer, a hotspot for internet access, and a virtual private network. ECF 66 at 5. About $3, 000 was converted into cash and is not traceable. And, a portion of the funds was used by defendant for personal expenses. Id.

         Further, the government maintains that, during the FBI interview on July 17, 2015, defendant consented to a search of his Dell and HP laptop computers. Id. at 6. However, forensic analysts were unable to obtain information from defendant's HP laptop because the hard drive had been damaged. Id. Moreover, as to the HP laptop, defendant used a thumb drive with a type of operating system that does not permit storage of information on the computer. Id.

         The government also alleges in its Opposition that a search of defendant's residence on December 11, 2015, disclosed a large box containing numerous newspaper articles reporting on ISIL, including a recent bombing and FBI terrorism investigations. Id. at 10. Although defendant had denied ever having seen photos of an attack on the Italian Consulate in Cairo, Egypt on July 11, 2015, forensic analysis of his Dell laptop revealed several pictures documenting damage to the Italian Consulate. ECF 66 at 6. Also, forensic analysis revealed that the defendant used multiple email accounts, in some instances utilizing pseudonyms. Id. at 6-7. And, “the login ID addresses for Coconspirator #1 . . . . resolved to proxy servers located in Europe and Africa, fixed locations in Turkey near the Iraq/Syria border, or locations inside of Iraq.” Id. at 8.

         II. The Material Support Statute

         In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”) “in an effort to eradicate fundraising in the United States for foreign terrorist organizations.” United States v. Warsame, 537 F.Supp.2d 1005, 1010 (D. Minn. 2008); see Pub. L. No. 104-132, 110 Stat. 1214. As the Warsame Court explained, 537 F.Supp.2d at 1010, Congress recognized “the increasing sophistication of terrorist organizations, which often raise money for international terrorism under the guise of humanitarian or political causes[.]” Therefore, “Congress criminalized the provision of material support or resources to foreign terrorist organizations that are designated by the Secretary of State.” Id.

         Conspiracy to provide material support to terrorists became a crime in October of 2001. United States v. Kahn, 461 F.3d 477, 489 (4th Cir. 2006). Until that time, the offense “was a substantive crime only.” Id.

         In 2001, Congress amended the definition of “material support or resources.” Holder v. Humanitarian Law Project, 561 U.S. 1, 11 (2010). It added to the statute the term “expert advice or assistance.” Id. (citing Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“Patriot Act”), § 805(a)(2)(B), 115 Stat. 377). Then, in 2004, Congress again amended § 2339B as to the definition of “material support or resources.” Holder, 561 U.S. at 12 (citing Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), § 6603, 118 Stat. 3762-3764). Among other things, Congress “clarified” the requisite “mental state necessary to violate § 2339B. . . .” Holder, 561 U.S. at 12. It required “knowledge of the foreign group's designation as a terrorist organization” or knowledge of the group's “commission of terrorist acts.” Id.; see also Id. at 16-17. In addition Congress added “service” to the definition of “material support or resources” (§ 2339A(b)(1)), and it provided additional definitions of various terms. Id. at 12-13. Moreover, IRTPA “clarified the scope of the term ‘personnel, '” as set forth in § 2339B(h). Id. at 13.

         In this case, Counts One and Two of the Indictment arise under 18 U.S.C. § 2339B, which was initially enacted as part of AEDPA. See, e.g., United States v. Hammoud, 381 F.3d 316, 327 (4th Cir. 2004) (en banc), vacated on other grounds, 543 U.S. 1097 (2005), reinstated in part, 405 F.3d 1034 (4th Cir. 2005). In particular, § 2339B(a)(1) imposes criminal liability on a person who “knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so.” In order to violate the law, “a person must have knowledge that the organization is a designated terrorist organization” or that it “has engaged or engages in terrorist activity.” 18 U.S.C. 2339B(a)(1). However, to commit a violation of § 2339B, an individual need not have “specific intent to further the organization's terrorist activities.” Holder, 561 U.S. at 17.

         Under § 2339B(g)(4), the term “material support or resources” is defined as set forth in 18 U.S.C. § 2339A(b)(1), as follows:

[A]ny property, tangible or intangible, or service, including currency or monetary instrument or financial security, financial services, lodging, training, expert advice or assistance, safe houses, 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[.]

         Notably, § 2339(B) “does not criminalize mere membership in a designated foreign terrorist organization.” Holder, 561 U.S. at 18. Moreover, the statute “avoid[s] any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” Id. at 36. Under § 2339B(h), prosecution is limited, as follows:

(h) Provision of personnel. - No person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control.
In addition, § 2339B(i) protects a person's rights under the First Amendment. It states:
(i) Rule of construction.-Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.

         As noted, Count Three charges the defendant with a violation of 18 U.S.C. § 2339C(a)(1)(B) and (a)(3). Enacted in 2002, 18 U.S.C. § 2339C(a)(1)(B) imposes criminal liability as follows: “Whoever . . . by any means, directly or indirectly, unlawfully and willfully provides or collects funds with the intention that such funds be used, or with the knowledge that such funds are to be used, in full or in part, in order to carry out -- . . . (B) any other act intended to cause death or serious bodily injury to a civilian . . . shall be punished as prescribed in subsection (d)(1).”

         The term “provides” includes “giving, donating, and transmitting” funds, § 2339C(e)(4), and the term “collects” “includes raising and receiving” funds. 18 U.S.C. § 2339C(e)(5). Section 2339C “does not require a showing of specific intent that the defendant acted to further the organization's terrorist activities or that [he] intended to aid or encourage the particular attack. . . .” Wultz v. Islamic Republic of Iran, 755 F.Supp.2d 1, 47 (D.D.C. 2010) (citing Boim v. Quranic Literacy Inst. and Holy Land Foundation for Relief and Development, 291 F.3d 1000, 1023-24 (7th Cir. 2002)). Under § 2339C, “[m]ere knowledge that the funds provided and collected would be used to carry out the predicate act is enough.” Wultz, 755 F.Supp.2d at 47. Thus, “it shall not be necessary that the funds [collected] were actually used to carry out a predicate act” in order to violate the statute. 18 U.S.C. § 2339C(a)(3). See, e.g., Linde v. Arab Bank, PLC, 384 F.Supp.2d 571, 588 (E.D.N.Y. 2005) (denying motion to dismiss where the plaintiffs alleged that a financial institution knew that funds received as deposits and transmitted to various organizations “were to be used for conducting acts of international terrorism”).

         III. Overview of Defendant's Contentions

         Defendant urges dismissal of the Indictment for three primary reasons: “vagueness, violations of the First Amendment, and facial insufficiency.” ECF 51 at 1.[8]

         A. Vagueness

         As to Counts One and Two of the Indictment, defendant claims that, as applied to him, 18 U.S.C. § 2339B is “unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment . . . .” ECF 51-1 at 1; see also ECF 79 at 2-3. In his view, the prosecution for material support in the form of personnel, services (including means and methods of communication), and financial services deprives him of “fair notice of the prohibited conduct and invites arbitrary enforcement by the Government.” ECF 51-1 at 6; see Id. at 9, 11.

         To illustrate, defendant argues that he “never pledged a formal oath of allegiance to ISIL or to any representative of the terrorist organization.” ECF 79 at 4. Elshinawy also maintains that “[a]n oath of allegiance to a foreign terrorist organization, without more, is not enough” to warrant prosecution within the meaning of the term “personnel.” ECF 51-1 at 7. In his view, the term “‘personnel'” is “unclear in its application to Mr. Elshinawy because he could not have been on notice that merely communicating with a childhood friend, who similarly identified with ISIL's cause, and informally pledging allegiance to the terrorist organization would constitute criminal conduct under the statute.” ECF 79 at 4. Similarly, defendant argues that an allegation that he “merely communicated” with another to assist a terrorist group does not constitute providing “personnel” to a foreign terrorist organization, “unless the defendant did so at the direction or control of the organization.” ECF at 8.

         According to Mr. Elshinawy, the “indictment in this case alleges conduct best described as speech, which Mr. Elshinawy made independent-and without direction-from ISIL or anyone else.” Id. at 9. Therefore, defendant argues that he is being prosecuted for “providing ‘personnel' in the form of mere conversations . . . with non-ISIL affiliated individuals.[]Id.

         In addition, defendant complains that the term “‘services'” is vague as applied to him. ECF 79 at 5. He insists that the government has “overreached” in its prosecution of him “for conspiring to provide and knowingly providing material support or resources in the form of ‘services (including means and methods of communication).'” ECF 51-1 at 10. In defendant's view, “the indictment does not establish that Mr. Elshinawy's conduct was at the direction of ISIL. More concerning, the indictment does not even allege that Mr. Elshinawy used the [cellphone that he purchased] to communicate with anyone, much less ISIL operatives.” Id. In this regard, defendant points out that the Indictment does not state that he ever provided Conconspirator #1 with an unattributable phone number, although he was directed to do so. Id. 10-11. He asserts that the “services” component of the statute does not criminalize the mere use of a cell phone. Id. at 11.

         And, defendant insists that the term “‘financial services' is so broad that it fails to put Mr. Elshinawy on notice that merely receiving Paypal and wire transfers from purported ISIL operatives would be sufficient to violate the statute.” ECF 79 at 7; see also ECF 51-1 at 11. He adds: “This is particularly true because 18 U.S.C. § 2339C prohibits that very conduct.” ECF 79 at 7. He claims that, in contrast to § 2339C, § 2339B “is not worded to encompass passive conduct like the ‘collecting' or ‘receiving' of funds.” ECF 51-1 at 11.

         B. First Amendment

         Defendant asserts that, as applied to him, Counts One and Two of the Indictment “run[] afoul of the free speech guarantee of the First Amendment.” ECF 51-1 at 1; see also ECF 79 at 7. In his view, as applied to him, his conduct amounts to speech, which cannot be criminalized. ECF 51-1 at 12. He points out that the Indictment describes twenty-eight particular acts, seventeen of which are mere “discussions” between defendant and Coconspirator #1, defendant and his brother, or between defendant and Coconspirator #1 and another unidentified associate. ECF 51-1 at 2-3; see also ECF 79 at 7.

         C. Lack of Specificity

         Pursuant to Fed. R. Crim. P. 12(b)(3)(B)(iii), defendant moves to dismiss all four counts, claiming a “lack [of] specificity regarding the nature of the charges . . . .” ECF 51-1 at 1; id. at 13. He contends that “the allegations in support of the charges lack the detail required to put Mr. Elshinawy on notice concerning those alleged actions that constitute a violation of federal law”, as required by Fed. R. Crim. P. 7(c)(1). ECF 51-1 at 14; see also ECF 51 at 1. This includes, according to defendant, a lack of specificity as to “the precise material support he allegedly conspired and attempted to provide; the individuals with whom he conspired; the nature of their alleged connection to [ISIL]; and the alleged ...

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