United States District Court, D. Maryland
L. Hollander United States District Judge.
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.
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). 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).
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
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.
Summary of Allegations
One, the conspiracy count,  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.
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.” 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.
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, ¶
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.
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.”
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.
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.
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.
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.
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.
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.
The Material Support Statute
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.
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.
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.
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.
§ 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[.]
§ 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
(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.
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).”
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
Overview of Defendant's Contentions
urges dismissal of the Indictment for three primary reasons:
“vagueness, violations of the First Amendment, and
facial insufficiency.” ECF 51 at 1.
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.
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.
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
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.
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.
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.
Lack of Specificity
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 ...