UNITED STATES DISTRICT COURT
FOR THE DlSTRICT OF COLUMBIA
AUG t 0 2018
C|erk, U.S. District & Bankruptcy
Courts for the Dlstrtct of Columbia
Defendant.
UNITED STATES OF Al\/IERICA, §
v. § Criminal Case No. l7-46 (RBW)
KASSll\/I TAJlDEEN § F I L E D
§
)
MEMORANDUM OPINION
A federal grandjury has indicted the defendant on the following charges: (l) one count of
conspiracy to conduct unlawful transactions and cause United States persons to conduct unlawful
transactions with a Specially-Designated Global Terrorist (“SDGT”) and to defraud the United
States by dishonest means; (2) nine counts of unlawful transactions with a SDGT; and (3) one
count of conspiracy to commit money laundering See generally Superseding Indictment
(“Indictment”), ECF No. 89. The defendant has filed seven separate motions to dismissl
challenging various aspects ofthis prosecution and seeking dismissal of the Indictment in its
entirety, all of which are ripe for consideration by the Court.2 Additionally, the defendant has
requested an evidentiary hearing regarding one ofthese seven motions to dismiss. _S§e Request
for Evidentiary Hearing on Defendant’s l\/Iotion to Dismiss Pursuant to Rule of Specialty
' The Court encourages the defendant in the future to submit multiple requests for the same relief in a single motion
when possible.
3 g Defendant Kassim Tajideen’s l\/lotion to Dismiss No. l as to Superseding Indictment (“Def.’s lst Mot. to
Dismiss”), ECF No. l04; Defendant Kassim Tajideen’s l\/Iotion to Dismiss No. 2 as to Superseding Indictment
("Def.’s 2d Mot. to Dismiss”), ECF No. 105; Defendant Kassim Tajideen’s l\/lotion to Dismiss No. 3 as to
Superseding Indictment ("Def.`s 3d Mot. to Dismiss"), ECF No. 106; Defendant Kassim Tajideen`s Motion to
Dismiss No. 4 as to Superseding lndictment (“Def`.’s 4th l\/lot. to Dismiss"), ECF No. 107; Defendant Kassim
Tajideen’s l\/lotion to Dismiss No. 5 as to Superseding Indictment ("Def.’s 5th l\/lot. to Dismiss"), ECF No. 108;
Defendant Kassim 'I`ajideen’s l\/lotion to Dismiss No. 6 as to Superseding Indictment (“Def.’s 6th l\/lot. to Dismiss"),
ECF No. 109; Defendant Kassim Tajideen’s l\/lotion to Dismiss No. 7 as to Superseding Indictment ("Def.`s 7th
l\/lot. to Dismiss”), ECF No. l 16.
(“Def.’s Request”), ECF No. l37. Upon consideration of the parties’ submissions,3 the Court
concludes that it must deny each ofthe defendant’s motions to dismiss the lndictment, as well as
his request for an evidentiary hearing.4
I. BACKGROUND
A. Factual Background
On l\/lay 27, 2009, the defendant was publicly designated by United States Department of
the Treasury`s Office of Foreign Assets Control ("the OFAC") as a SDGT. E Government`s
Response to Defendant’s l\/lotion to Compel Discovery of Rule 16 and B_rady l\/Iaterial ("Gov’t`s
Resp.") at 6, ECF No. 3 l. “The designation blocks all assets ofa designee and prohibits, M
B, [United States] persons from knowingly participating in transactions with, or for the benefit
of, the defendant without first obtaining a license from [the] OFAC.” Li at 7. Thereafter, “[o]n,
3 ln addition to the filings previously identified, the Court considered the following submissions in rendering its
decision: (l) the Govemment’s Opposition to Defendant Tajideen’s l\/lotion to Dismiss No. l As to Superseding
lndictment/Motion to Dismiss All Counts for Violating IEEPA (“Gov’t’s lst Opp’n”), ECF No. 110; (2) the
Government’s Omnibus Opposition to Defendant’s Revised Motions to Dismiss Nos. 1-6 (“Gov’t’s Omnibus
Opp’n.”), ECF No. ll l; (3) the Govemment’s Opposition to Defendant Kassim Tajideen’s Motion to Dismiss No. 2
("Gov’t’s 2d Gpp’n”), ECF No. 91; (4) the Government’s Opposition to Defendant Kassim Tajideen’s l\/Iotion to
Dismiss No. 3 (“Gov’t’s 3d Opp’n”), ECF No. 92; (5) the Government’s Omnibus Opposition to Defendant Kassim
Tajideen’s Motions to Dismiss No. 4 and No. 5 ("Gov’t’s 4th Opp’n”), ECF No. 93; (6) the Government’s
Opposition to Defendant Kassim Tajideen’s Motion to Dismiss No. 6/l\/lotion to Dismiss Count Eleven ("Gov’t’s
5th Opp’n"), ECF No. 94; (7) the Government’s Opposition to Defendant Kassim Tajideen`s l\/lotion to Dismiss
No.7/l\/lotion to Dismiss Pursuant to Rule of Specialty ("Gov’t`s 6th Opp`n"), ECF No. 132; (8) the Government’s
l\/Iemorandum of Law ln Support of Opposition to Defendant’s Request for Evidentiary Hearing on l\/lotion to
Dismiss No. 7/l\/lotion to Dismiss Pursuant to Rule of Specialty ("Gov’t’s Hearing Opp’n”), ECF No. 146; (9) the
Reply l\/lemorandum in Support of Motion to Dismiss No. l as to Superseding Indictment (“Def.’s lst Reply”), ECF
No. l l7; (lO) the Reply Memorandum in Support of l\/lotion to Dismiss No. 2 as to Superseding Indictment ("Def.’s
2d Reply”), ECF No. 118; (l l) the Reply l\/Iemorandum in Support of Motion to Dismiss No.3 as to Superseding
Indictment (“Def.’s 3d Reply”), ECF No. 119; (12) the Reply Memorandum in Support of Motion to Dismiss No. 4
as to Superseding Indictment (“Def.`s 4th Reply”), ECF No. 120; (13) the Reply l\/lemorandum in Support of
l\/lotion to Dismiss No. 5 as to Superseding Indictment ("Def.’s 5th Reply”), ECF No. 121; (14) the Reply
Memorandum in Support of Motion to Dismiss Noi 6 as to Superseding Indictment (“Def.’s 6th Reply"), ECF No.
122; (l5) the Reply in Support of Request for Evidentiary Hearing on Defendant’s l\/lotion to Dismiss Pursuant to
Rule of Specialty ("Def.’s Hearing Request Reply”), ECF No. 147; and (16) the Reply l\/lemorandum in Support of
l\/lotion to Dismiss Pursuant to Rule of Specialty ("Def.’s 7th Reply”), ECF No. 135.
4 The defendant previously filed six separate motions to dismiss the original indictment filed against him. _S_e§ ECF
Nos. 67-72. However, given the filing ofthe Superseding Indictment and in light ofthe fact that the defendant’s
motions to dismiss all ofthe counts in that Indictment essentially reassert the same arguments raised in his original
motions, the Court will deny as moot the defendant’s six original motions to dismiss
2
July 22, 2010, the defendant filed an application with [the] OFAC, . . . seeking his removal from
the SDGT list.” lj_; The defendant continued to seek his delisting from the SDGT list, s_e_e § at
8 (discussing his various efforts to have [the] GFAC remove him from the SDGT list), until l\/lay
4, 2017. when he withdrew his delisting application, §§ §
"On l\/Iarch 7, 2017, a Grand ilury in the District ofColumbia returned an lndictment
charging the defendant with Conspiracy to Violate the lnternational Emergency Economic
Powers Act (‘[the] IEEPA’) and the Global Terrorism Sanctions Regulations (‘[the] GTSR"), and
to Defraud the United States; substantive violations of [the] IEEPA; and with conspiracy to
launder monetary instruments.” Gov’t’s lst Opp’n at 5. "[O]n l\/larch 12, 2017, while traveling
on business,” the defendant “was detained in l\/lorocco." Def.’s 7th l\/Iot. to Dismiss at 2. ‘“The
[United States] Department of State submitted certified copies of [United States] Department of
Justice papers, including the original indictment in this case, the arrest warrant, the applicable
statutes a summary of facts with an Arabic translation, and a photograph of [the defendant]" to
l\/loroccan authorities I_d_. at 3. The United States Department of State then “sent a diplomatic
note to the l\/linistry of Foreign Affairs and Cooperation of the Kingdom of l\/lorocco."` which
requested the defendant’s extradition Li at 4. “[T]he l\/loroccan Court granted the
government’s extradition request, [and] on March 24, 2017, agents of the [United States] Drug
Enforcement Agency transported [the defendant] to the United States." l_c_l_. at 5.
B. Relevant Statutory Background
1. The International Emergency Economic Powers Act
Through much of the twentieth century, the United States utilized economic sanctions as
a tool of foreign policy pursuant to the Trading with the Enemy Act (“the TWEA”). Passed in
1917, and amended in 1933, the TWEA granted the President broad authority to “investigate,
b)
regulate, . . . prevent or prohibit . . . transactions” "[d]uring the time of war or during any other
period of national emergency declared by the President.” 12 U.S.C. § 95a (1976). ln 1971
)through the passage ofthe IEEPA, Congress further amended the TWEA. The IEEPA
delineates “the President"s authority to regulate international economic transactions during wars
or national emergencies.” S. Rep. No. 95~466, at 2 (1977). The lEEPA limits the TWEA’s
application to periods of declared wars and to certain existing TWEA programs, while the
IEEPA is applicable during other times of declared national emergencies. § Regan v. Wald,
468 U.S. 222, 227~28 (1984) (discussing the statutory history ofthe two statutes). Under the
lEEPA, the President can declare a national emergency "to deal with any unusual and
extraordinary threat, which has its source in whole or substantial part outside the United States,
to the national security, foreign policy, or economy ofthe United States.” 50 U.S.C. § 1701(a)
(2012). The IEEPA authorizes the President to
investigate, block during the pendency of an investigation, regulate, direct and
compel, nullify, void, prevent or prohibit` any acquisition, holding, withholding,
use, transfer, withdrawal, transportation, importation or exportation of, or dealing
in, or exercising any right, power, or privilege with respect to, or transactions
involving, any property in which any foreign country or a national thereof has any
interest by any person, or with respect to any property, subject to the jurisdiction of
the United States.
l_d.§ 1702(3)(1)(3)-
2. Executive Order 13,224
Following the September l 1, 2001 terrorist attacks on the United States, on September
23, 201 l, President George W. Bush issued Executive Order 13,224, declaring a national
emergency with respect to the “grave acts of terrorism . . . and the continuing and immediate
threat of further attacks on United States nationals or the United States.” Exec. Order. No.
13,224, 66 Fed. Reg. 49,079_ 49,079 (Sept. 23, 2001 ). Through this Executive Order, President
Bush invoked the authority granted to him under the IEEPA. g i_d. § 1, and blocked all property
and interests in property oftwenty-seven foreign terrorists, terrorist organizations and their
supporters, each which were designated as SDGTs, § annex.
II. STANDARD OF REVIEW
“Before trial, a defendant in a criminal case may move to dismiss an indictment on the
grounds that it fails to state an offense . . . .” United States v. Hillie, 289 F. Supp. 3d 188, 193
(D.D.C. 2018); see also Al Bahlul v. United States, 767 F.3d 1, 10 n.6 (D.C. Cir. 2014) (“Failure
to state an offense is simply another way of saying there is a defect in the indictment . . . .”); Fed.
R. Crim. P. 12(b)(3)(B)(v) (providing that “a defect in the indictment . . . , including failure to
state an offense,” is a defense that "must be raised [ ] pretrial"). The district court`s inquiry
regarding a motion to dismiss is limited to "[t]he operative question [of| whether the allegations
[in the indictment], if proven, would be sufficient to permit ajury to find that the crimes charged
were committed.” Hillie, 289 F. Supp. 3d at 193 (first and third alterations in original) (quoting
United States v. Sanford, Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012)); see also United States
v._SLigig, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (Walton, J.) (providing that the court’s role "is
limited to reviewing the face of the indictment and, more specifically, the language used to
charge the crimes” (emphasis, citation, and internal quotation marks omitted)). “Adherence to
the language in the indictment is essential because the Fifth Amendment requires that criminal
prosecutions be limited to the unique allegations ofthe indictments returned by the grand jury.”
United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). Therefore, a district “court `must
presume the allegations of the indictment to be true, and may not dismiss an indictment on a
determination of facts that should have been developed at trial,”’ Me, 289 F. Supp. 3d at 193
(quoting Sunia, 643 F. Supp. 2d at 60).
III. ANALYSIS
A. The Defendant’s lVIotion to Dismiss All Counts for the Alleged Violations of the
IEEPA
At the outset, the defendant seeks dismissal of all counts charging an IEEPA violation. on
the basis that the IEEPA’s
text makes clear that the President’s emergency powers under [the] lEEPA cannot
be used as they have been used here-»to create a sprawling and permanent
regulatory regime addressing ofa multitude of different threats that bear absolutely
no relation to the September 11 emergency that catalyzed the regime in the first
place.
Def.’s lst Reply at 1. From the defendant’s perspective, "[t]his prosecution violates [the]
lEEPA," Def.’s lst l\/lot. to Dismiss at 2, because "[i]t is premised on an Executive Order that
either exceeds the scope of the statute that authorized it or has been misapplied by the Treasury
Department,” § at 1; §W Def.`s lst Reply at 2 (asserting that this motion seeks to
"challenge . . . a criminal prosecution based on the use of [the] IEEPA . . . to create a permanent
and general sanctions regime rather than a narrow emergency-based one”). ln opposition. the
government argues that the Court should deny the defendant’s motion because it invites "the
Court to dismantle a significant piece ofthe United States foreign policy and national security
apparatus designed to reduce the threat from foreign terrorists.” Gov`t’s lst Opp’n at 3; s_e_e_al&
§ at 2 (“The defendant’s theory is belied by the actions of Congress itself, by the inherent
Constitutional authority of the Executive, and by case law supporting the broad authority of the
Executive Branch in matters concerning foreign policy."’). The Court agrees with the
government5
5 The government devotes a significant portion of its opposition to reiterating its position that the defendant may not
uses this criminal action to collaterally attack his designation by the OFAC as a SDGT. §§§ Gov’t’s lst Opp’n at 5~
8. However, the defendant represents that his “motion challenges neither the factual basis for his designation nor the
process by which the OFAC reached the decision to designate him. lt challenges only the legal viability ofthe entire
(continued . . .)
Because the defendant’s motion contends that Executive Order 13,224 exceeds the scope
ofthe IEEPA’s statutory authorization, the Court’s analysis must start with the plain language of
the statute. g Barnhart v. Sigmon Coal Co., lnc. 534 U.S. 438, 450 (2002) ("As in all
statutory construction cases, [the Court] begin[s] with the language ofthe statute."). In
conducting this analysis, the Court must first “determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in the case,” and its
"inquiry ceases ‘ifthe statutory language is unambiguous and the statutory scheme is coherent
and consistent."’ l_d_. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). Here, the
Court finds that the plain language ofthe IEEPA is unambiguous and that Executive Order
13,224 soundly comports with the scope and boundaries of the statute.
The President may avail himself of the broad authorities granted to him through the
lEEPA if he declares a national emergency “to deal with any unusual and extraordinary threat,
which has its source in whole or substantial part outside the United States, to the national
security, foreign policy, or economy ofthe United States.” 50 U.S.C. § 1701(a). The President"s
declaration of a national emergency to address an “unusual and extraordinary threat," §,
however. is not all-encompassing and without limitation, as the IEEPA directs "[a]ny exercise of
[ ] authorities to deal with any new threat [to] be based on a new declaration ofnational
emergency." § § 1701(b). Thus, a President’s declaration ofa national emergency must be
confined "to a specific set of circumstances which constitutes a real emergency, and for no other
purpose.” H.R. Rep. 95-459 at 10 (1977).
(. . . continued)
scheme, including the regulations that [he] is alleged to have violated.” Def.’s lst Reply at 2. Based on this
representation, the Court finds it unnecessary to address the govemment’s argument on this subject again, which. as
the government correctly notes, se_e Gov’t’s lst Opp’n at 2, 6, has already been considered and rejected by the Court
at a hearing on February 1, 2018, § at 2.
Relevant to the parties’ dispute, through Executive Order 13,224, former President Bush
“declare[d] a national emergency to deal with th[e] threat” stemming from the
grave acts of terrorism and threats of terrorism committed by foreign terrorists,
including the terrorist attacks in New York, Pennsylvania, and the Pentagon
committed on September l 1, 2001, . . . and the continuing and immediate threat of
further attacks on United States nationals or the United States constitute an unusual
and extraordinary threat to the national security, foreign policy, and economy of
the United States.
Exec. Order No. 13,224, 66 Fed. Reg. at 49,079. He also found “that because ofthe
pervasiveness and expansiveness ofthe financial foundation of foreign terrorists, financial
sanctions may be appropriate for those foreign persons that support or otherwise associate with
these foreign terrorists.” § And he concluded “that a need exists for further consultation and
cooperation with, and sharing of information by, United States and foreign financial institutions
as an additional tool to enable the United States to combat the financing of terrorism.” §
Consequently, “[t]hrough this Executive Order, President Bush invoked the authority granted to
him under the lEEPA, and blocked all property and interests in property oftwenty-seven foreign
terrorist[s], terrorist organizations and their supporters each which were designated as SDGTs,"
lslamic Am. Relief Agencv v. Unidentified FBl Agents, 394 F. Supp. 2d 34, 42 (D.D.C. 2005)
(Walton, J.) (citations omitted), which as the defendant here asserts, are all related to Al-Qaeda,
g Def.’s lst l\/lot. to Dismiss at 5-6.
Against this backdrop, the defendant contends that the OFAC’s “designation of Hizballah
as [a Specially Designated National (‘SDN’)], and the subsidiary designation of [himself], cannot
meaningfully be said to address the same ‘threat` that motivated Executive Order 13,224.” § at
12; M § (“lf Executive Order 13,224 is so open-ended that it can support the
government’s designation and prosecution of [the defendant], then it is not the sort of
narrowly-drawn emergency declaration that Congress authorized with [the] IEEPA.”). However,
contrary to the defendant’s position, _s_e_e_ § at 10-16, the OFAC’s designation of Hizballah as a
SDN and its designation of him as a SDGT pursuant to Executive Order 13,224, fall squarely
within the lEEPA’s requirement that “any new threat be based on a new declaration of national
emergency," 50 U.S.C § 1701 (b). The Court so concludes because, although the adoption of
Executive Order 13,224 was motivated by the September 1 l, 2001 terrorist attacks which were
carried out by Al-Qaeda, there is no indication whatsoever that Executive Order 13,224 limits its
declaration of a national emergency to Al-Qaeda. Rather, the plain language of Executive Order
No. 13,224 clearly indicates that President Bush declared a national emergency with respect to
the general threat ofterrorism, not a specific terrorist group. §e§ Exec, Order No. 13,224, 66
Fed. Reg. at 49,079 (providing “that grave acts of terrorism and threats of terrorism committed
by foreign terrorists, including the terrorist attacks . . . committed on September 11, 2001, . . .
and the continuing and immediate threat of further attacks[,] . . . constitute an unusual and
extraordinary threat" (emphasis added)). ln fact` Executive Order 13,224 explicitly
authorizes the Secretary of the Treasury, in consultation with the Secretary of State
and the Attorney General, to designate additional [SDNs and] SDGTS whose
property or interests in property should be blocked because they “act for or on
behalf of’ or are “owned or controlled by” designated terrorists, or because they
"assist in, sponsor, or provide . . . support for,” or are ‘otherwise associated’ with
them.
lslamic Am. Relief Agency, 394 F. Supp. 2d at 42 (omission in original) (quoting Exec. Order
No. 13,224, § l(c)-(d), 66 Fed. Reg. at 49,079~80); _se_egl_S__Q § § l(b), Fed. Reg. at 49,079.
Thus, the Court does not find that Executive Order 13,224 exceeds the scope ofthe President’s
authority granted by the IEEPA. §§ lslamic Am. Relief Agency, 394 F. Supp. 2d at 46
(concluding that the President’s determination of "an unusual and extraordinary threat” in
Executive Order 13,224 was terrorism holistically, and, therefore the President properly invoked
the broad authority granted to him under the IEEPA). Accordingly, the Court must deny the
defendant’s motion to dismiss all IEEPA counts predicated on the theory that the application of
Executive Order 13,224 has been unlawfully applied to him.6
B. The Defendant’s Motiori to Dismiss All IEEPA Counts of the Indictment for Failure
to Satisfy the “U.S. Person” Element
Counts 1, 3 through 7, 9, and 10 ofthe Indictment each charge the defendant in some
fashion with “Mg U.S. persons to transact with [a] [SDGT]." Def.’s 2d l\/lot. to Dismiss at l.
The defendant contends that each ofthese counts should be dismissed "[b]ecause [he] is not a
U.S. person and thus cannot be prosecuted under the charged statutes and because, in any event,
the allegations in the [ ] [l]ndictment do not show that he ‘caused’ violations of those statutes
even if he were legally capable of doing so." § at 3. The government in response asserts that
"[a]n ordinary interpretation ofthe applicable law, as well as a plain reading ofthe lndictment,
cause both arguments ofthe [d]efendant to fail." Gov’t`s 2d Opp’n at 3~4.
The Court reiterates that resolution of the parties` dispute regarding this motion to
dismiss turns on statutory interpretation, which, as the Court previously noted, must begin with
the plain language ofthe IEEPA. S_ee_ Barnhart, 534 U.S. at 450. With this principle guiding the
Court’s analysis the Court finds the United States District Court for the Southern District of
New York’s analysis ofthe IEEPA’s plain language regarding its applicability to non-United
States persons in United States v. Zarrab, although not binding, to be particularly instructive.
" The defendant also challenges the OFAC`s authority to "promulgate[] regulations permitting it to designate [as
SDGTs] people like [himself] without any connection to the September 1 1 attacks or even to attacks against the
United States." Def.’s lst Reply at 10; see also § ("The question for this Court is not whether a general and
permanent antiterrorism sanctions regulatory regime like the one [the] OFAC has created by regulation would be
desirable as a policy matter. but whether [the] OFAC may bring such a regime about through its own administrative
action, without Congressi"). But, Executive Order 13,224 "authorizes the Secretary of Treasury to `employ all
powers granted to the President by [the] IEEPA and [the United National Participation Act (‘[the] UN PA’)’ and to
promulgate rules and regulations to carry out the purposes ofthe Order and to re-delegate such functions if he chose
to do so." slamic Am. Reliengency, 394 F. Supp. 2d at 42 (alteration in original) (quoting Exec. Order No.
13,224, § 7, 66 Fed. Reg. at 49,081). Therefore, the Court finds the defendant’s argument unpersuasive. g § at
46'47 (rejecting the plaintiffs claim that the OFAC’s designation of it as a SDGT pursuant to Executive Order
13,224 "exceeded its statutory authority,"` given that the Order "clearly designates the procedures for designating
organizations as SDGTS").
10
See Crim. Action No. 15-867 (RMB), 2016 WL 6820737, at *1 (S.D.N.Y. Oct. 17. 2016). ln
;M, the defendant claimed that the IEEPA "d[id] not apply extraterritorially,” and therefore,
because he was a Turkish/lranian person and not a United States person, the lEEPA provisions
did not apply to him. §_e§ 2016 WL 6820737, at *8. Although the court noted that it did not
need to reach “the question of whether the IEEPA . . . appl[ied] extraterritorially," §, the court
concluded that the language ofmultiple provisions ofthe IEEPA "indicat[ed] that Congress
intended the statute to be applied extraterritorially," § at *9. For instance, the court noted that
§ 1701(a) of the IEEPA "reads: ‘Any authority granted to the President by section 1702 of this
title may be exercised to deal with any unusual or extraordinary threat, which has its source in
whole or substantial part outside the United States, to the national security, foreign policy, or
economy ofthe United States."" § (quoting § 50 U.S.C. 1701(_a)); W § (citing M
Def. Fund, lnc. v. l\/lassev, 986 F.2d 528, 531 (D.C. Cir. 1993) for its holding that "the
presumption [against extraterritoriality] is generally not applied where the failure to extend the
scope ofthe statute to a foreign setting will result in adverse effects within the United States”
(alteration in original)). ln addition, the court noted that "§ 1702(a)(1)(B) grants the President
broad powers, including the power to ‘investigate, block during the pendency of an investigation,
regulate, direct and compel . . . any property in which any foreign country or a national thereof
has any interest . . . subject to thejurisdiction ofthe United States.”’ § (omissions in original).
Andq it recognized that “§ 1705(c) establishes criminal penalties for ‘[a] person who willfully
commits willfully attempts to commit, or willfully conspires to commit, or aids or abets in the
commission of, an unlawful act` described in the statute," and is therefore "n_ot limited to
individual (such as U.S. citizens) who are subject to thejurisdiction ofthe United States.” §
Consequently, the Zarrab court found that the lEEPA applies to non-United States persons
11
Adopting this reasoning in full, this Court agrees with the Zarrab court that the plain
language of several provisions ofthe IEEPA unambiguously indicate that the IEEPA applies
extraterritorially. ln opposition to extraterritorial application of the IEEPA in this case, the
defendant urges the Court to follow the guidance provided by the District of Columbia Circuit in
United States v. Yakou, 428 F.3d 241 (D.C. Cir. 2005), which he asserts stands for the
proposition “that a ‘U.S. person’ restriction cannot be circumvented using secondary liability.”
Def.’s 2d Reply at 1; see also Def.’s 2d l\/lot. to Dismiss at 5 (noting a district court’s reliance on
Yakou in United States v. Chalmers 474 F. Supp. 2d 555 (S.D.N.Y 2007), as the basis to
"dismiss[] lEEPA charges against a Bahamian company . . . because the company was not a U.S.
person under the applicable statute and regulations”). However, in Zarrab, the defendant
likewise relied on Yakou and Chalmers as support for his position, and the court found the
circumstances in Yakou and Chalmers to be distinguishable from those in Zarrab. §§ 2016 WL
6820737, at *10. Specifically, the defendants in Yakou and in Chalmers were charged under
statutes that explicitly applied only to United States persons _S_e§ § (citing Li_k_tg and
Chalmers). And in X_akgu, it was undisputed that the conduct underlying the charged offenses in
that case occurred outside of the United States and the government did not contend that the
defendant was subject to thejurisdiction of the United States § § (discussing M). But,
the defendant in Z§rab was charged under the IEEPA, among other statutes which did apply
extraterritorially. §§ § For these same reasons, this Court finds the circumstances here
distinguishable from those in M and in Chalmers and therefore concludes the defendant’s
reliance on those cases misplaced
Having concluded that the IEEPA applies to the defendant as a non-United States person,
the Court now turns to the defendant’s alternative argument that the Indictment fails to set forth
12
sufficient allegations that he caused a United States person to violate the IEEPA. § Def.’s 2d
l\/lot. to Dismiss at 7. Specifically, he asserts that there are no allegations in the lndictment "that
the U.S. persons in question were unwitting or innocent." § at 8; _s__et;gl§_o § at 8-9 (“[T]here
[are no] allegation[s] of fact indicating that the transactions were something other than arm’s
length, that they were not agreed to knowingly and voluntarily by the U.S. persons or that the
U.S. persons did not have the ability to decline them. lfanything, the allegations [ j in the [ ]
[I]ndictment show the opposite. They indicate that the U.S. companies that sold goods to [the
defendant] were aware that they were doing business with a[] SD[GT].”). The government
counters by asserting that its “theory of prosecution is not based on 18 U.S.C. § 2,” as that statute
was only referenced “in the lndictment [to] provide[] notice to the [d]efendant that at trial the
factfinder may be asked to consider the acts ofa co-conspirator or co-perpetrator as if they had
been committed by the [d]efendant himself.” Gov’t’s 2d Opp’n at 13. The government also
argues that “none of the charges in the Indictment require the government to make . . . any
allegation that the U.S. persons [with whom (the defendant) transacted] were unwitting or
innocent, or, an allegation of fact indicating that the transactions were something other than
arm’s length.” § (first alteration in original) (citation and internal quotation marks omitted).
Again, the Court agrees with the government.
As the government notes, the lndictment does not charge the defendant with aiding and
abetting; rather, it alleges that the defendant “agree[d] with another to willfully violate [the]
IEEPA and to defraud the United States” and “willfully act[ed] in violation of [the] IEEPA in
seven additional substantive counts that involved transactions in the United States." § Further,
as this Circuit has explained:
While aiding and abetting might commonly be thought of as an offense in itself, it
is not an independent crime under 18 U.S.C. § 2. That statute provides no penalty,
13
but only abolishes the distinction between common law notions of“principal” and
“accessory.” Under it, the acts of the perpetrator become the acts of the aider and
abettor and the latter can be charged with having done the acts himself. An
individual may be indicted as a principal for commission of a substantive crime and
convicted by proof showing him to be an aider or abettor. The indictment need not
specially charge a violation of 18 U.S.C. § 2. An aiding and abetting instruction
may be given in a case where the indictment does not allege violation ofthe aiding
and abetting statute.
United States v. Kegler, 724 F.2d 190, 200-01 (D.C. Cir. 1983) (footnotes omitted). l\/loreover,
contrary to the defendant’s position, he has not cited any legal authority concluding that the
government must prove beyond a reasonable doubt “that the U.S. companies that allegedly sold
goods to [the defendant] were innocent intermediaries,” Def.’s 2d Reply at 7, to meet its burden
of establishing a violation ofthe IEEPA. S_ee_ Def.’s 2d l\/lot. to Dismiss at 8.7 And the Court is
unaware of any legal authority requiring the government to make such a showing. h 50 U.S.C.
§ l705(a) (“lt shall be unlawful for a person to violate, attempt to violate, conspire to violate, or
cause a violation of any license, order, regulation, or prohibition issued under this chapter.”).
Accordingly, the Court must deny the defendant’s motion to dismiss each ofthe IEPPA
violations charged against him based on his United States person requirement argument
C. The Defendant’s Motion t0 Dismiss Count One of the Indictment for Failure to
State a Conspiracy to Defraud the United States of Money or Property
ln relevant part, count one of the Indictment charges the defendant with conspiring
to defraud the United States Government by interfering with and obstructing a
lawful government function, that is, the enforcement of laws and regulations
prohibiting dealing with SDGTS or in a blocked property without having first
obtained the required licenses from [the] OFAC, by deceit, craft, trickery, and
dishonest means
lndictmentjl 17(b); see also 18 U.S.C. § 371 (2012). Through his motion to dismiss count one of
7 The defendant relies on United States v. Trie, 21 F. Supp. 2d 7 (D.D.C. 1998), as support for his proposition that
the government must demonstrate that the United States companies were "innocent intermediaries.” Def.’s 2d l\/lot
to Dismiss at 8. However, the defendant’s reliance on M is misplaced, particularly because the defendant in T§ie
was charged with aiding and abetting, whereas the defendant here is not.
14
the lndictment, the defendant asserts that this count should be dismissed because a conspiracy to
defraud [ ] the United States under [18 U.S.C.] § 371 . . . cannot be predicated on a conspiracy to
deprive the United States of an intangible right to function without impairment.” Def.’s 3d l\/lot.
to Dismiss at 1-2; _s_e§al§ § (arguing that a conspiracy charged to defraud “under § 371 must
involve a conspiracy to deprive the United States of money or property, or at the very least a
conspiracy to bribe a federal government official" (citations omitted)). The government in
response asserts that “[a] conspiracy to ‘defraud the United States’ does not need to cause
monetary or property loss to the United States,” Gov’t’s 3d Opp’n at 6, and that the Indictment
sufficiently sets forth all ofthe allegations necessary to adequately plead a conspiracy to defraud
the United States, g § at 6-8. As the government correctly notes, §§§ § at 6-7, this Circuit
and other Circuits have concluded that § 371 does not require the loss of property or money. §§
United States v. Dean, 55 F.3d 640, 647 (D.C. Cir. 1995) ("[l]fthe government’s evidence
showed that [the defendant] conspired to impair the functioning of the Department of Housing
and Urban Development, ‘no other form ofinjury to the Federal Government need be established
for the conspiracy to fall under § 371."` (quoting Tanner v. United States, 483 U.S. 107, 128
(1987)); United States v. Rodman, 776 F.3d 638, 643 (9th Cir. 2015) (“[B]ecause Rodman’s
actions constitute a conspiracy to impair the functioning ofthe [Bureau of Alcohol, Tobacco,
Firearms, and Explosives ("ATF”)], it was not necessary that there be evidence of any other form
of injury to the ATF in order for Rodman to be found guilty ofa conspiracy under 18 U.S.C. §
371 ."); United States v. Puerto, 730 F.2d 627, 630 (l lth Cir. 1984) (“Conspiracies iri violation of
section 371 need not cause any monetary loss to the government, so long as they interfere with or
obstruct its lawful functions.”), nor does it require an agreement to bribe a federal official, g
United States v. Collins, 78 F.3d 1021, 1037 (6th Cir. 1996) (noting that § 371 "has been given a
15
very broad meaning so that defraud extends beyond its common law usage and includes any
interference or obstruction ofa lawful governmental function by deceit, craft or treachery or at
least by means that are dishonest” (citation and internal quotation marks omitted)); United States
v. Rankin, 870 F.2d 109, 114 (3d Cir. 1989) (reinstating an indictment brought under § 371
charging the defendants with conspiring to defraud the United States “by impairing the lawful
function ofthe United States District Court through the making of false, misleading, and
deceitful representations and statements”). Again, the Court agrees with the government
As support for his position that a conspiracy to defraud the United States must involve a
deprivation of money or property, the defendant "acknowledge[sj that many courts have used
language suggesting that § 371 covers conspiracies to impair the government’s lawful functions
but [ j explain[s] that no Supreme Court or D.C. Circuit decision has ever actually upheld a § 371
conviction under the ‘lawful function’ rubric beyond the limited context of bribery.” Def.`s 3d
Reply at 5. The defendant then goes further by seeking to distinguish the three Supreme Court
cases the government relies on for its position that a § 371 conspiracy to defraud the United
States is broadly interpreted "to include any conspiracy for the purpose of impairing, obstructing,
or defeating the lawful government function of any department of government." §_e§ Gov’t’s 3d
Opp’n at 3_4 (internal quotation marks omitted) (relying on Tanner, Hammerschmidt v. United
_S_ta_t§, 265 U.S. 182 (1924), and Haas v. Henkel, 216 U.S. 462, 479 (1910)); s_ee_alg Def.’s 3d
Reply at 5 (explaining why Haas, Hammerschmidt, and Tanner are not applicable to this case).
Primarily, the defendant contends that Haas and Hammerschmidt are inapposite because "[t]he
‘lawful function’ language was [ j not essential to the [defendants’] facial validity [challenge] of
the indictment[s].” Def.’s 3d l\/lot. to Dismiss at 6; see_e@ § at 7. Therefore, from the
def`endant’s perspective, even though the Supreme Court acknowledged in Haas that a § 371
16
conspiracy “is broad enough in its terms to include any conspiracy for the purpose of impairing,
obstructing, or defeating the lawful function of any department of Government,” § at 6 (quoting
Haas, 216 U.S. at 479) (internal quotation marks omitted), the defendant asserts that such
language is merely dicta, §_e_e_ § at 6-7.
Furthermore, the defendant uncategorically claims that the Supreme Court in Tanner
“expressly reserved the question of whether § 371 encompasses ‘lawful function’ conspiracies.”
§ at 5 (citing Tanner, 483 U.S. at 128). However, the Court is perplexed as to how the
defendant arrived at this conclusion when the Supreme Court expressly emphasized that it
ha[s] stated repeatedly that the fraud covered by [§ 371] “reaches `any conspiracy
for the purpose of impairing, obstructing or defeating the lawful function of any
department of Government.”’ [It] do[es] not reconsider that aspect ofthe scope of
§ 371 in this case. Therefore, if petitioners’ actions constituted a conspiracy to
impair the functioning of the [Rural Electrification Administration], no other form
of injury to the Federal Government need be established for the conspiracy to fall
under § 371.
Tanner, 483 U.S. at 128 (internal citations omitted). This pronouncement clearly conflicts with
the defendant’s position, and although the defendant may conceivably be correct that there has
not been any Supreme Court precedent upholding “a § 371 conviction under the ‘lawful
function’ rubric beyond the limited context of bribery," Def.’s 3d Reply at 5, the Supreme Court
has nonetheless made clear that a § 371 conspiracy may be properly predicated on an alleged
impairment or obstruction ofa lawful function of any department ofthe government, B Tanner,
483 U.S. at 128. And the defendant has not proffered any meritorious arguments or authority
that convinces this Court to disregard the unambiguous language ofthe Supreme Court and adopt
his legally unsupported position.
Accordingly, because count one of the lndictment sufficiently alleges that the defendant
conspired to defraud the United States by interfering with and obstructing the OFAC’s lawful
17
governmental functions § lndictment § 17(b), the Court must deny the defendant’s motion to
dismiss count one ofthe lndictment for failure to allege the deprivation of money or property.8
D. The Defendant’s Motion to Dismiss Count One of the Indictment for Failure to
State a Conspiratorial Agreement
The defendant also argues that count one of the lndictment should be dismissed because
it "contains no factual allegations suggesting that [he] entered into an agreement with any other
person with respect to the second prong ofthe charged conspiracy_the alleged conspiracy to
defraud [the] OFAC in violation of`§ 371.” Def.`s 4th l\/Iot. to Dismiss at 4; §§_e_als_g § (noting
the “stark contrast [from] the factual allegations regarding co-defendant lmad Hassoun in the
f_irit prong of the conspiracy_the conspiracy to transact business with [United States] persons in
violation of [the] IEEPA”). Rather, from the defendant’s perspective, count one only contains
allegations that the defendant “him_self attempted to mislead [the] OFAC_i.e., that § made a
false statement,” and “unilateral conduct does not amount to a conspiracy.” § at 5. The
government contends in response that the language in the lndictment is sufficient § Gov’t’s
4th Opp`n at 9-13; Ms_o § at 1 1 (“[T]he [d]efendant’s position that the lndictment fails to
state a conspiratorial agreement ignores the plain language ofthe lndictment and that `an
8 Relying on l\/lcNally v. United States 483 U.S. 350 (1987) and Skilling v. United States 561 U.S. 358 (2010), the
defendant implores the Court to “forb[id] the government from using the ‘defraud’ language in the mail fraud statute
to prosecute deprivations ofintangible rights beyond bribery schemes.” Def.’s 3d Reply at 1. But, the
Court finds the defendant’s reliance on these Supreme Court cases misplaced, particularly because those case
involved the application ofthe term “defraud” in § 1341` the mail fraud statute, and in § 1346, the honest services
fraud statute, respectively, not § 371, the conspiracy statute See generally McNally, 483 U.S. at 350; Skilling, 561
U.S. at 358. Given those distinctive statutory applications the Supreme Court guidance explicitly interpreting the
term "defraud” as used in § 371, and other Circuits’ conclusions that the meaning of“defraud" as used in § 371
extends beyond an agreement to bribe a federal official, g M Part lll.C., the Court finds the defendant’s
argument that “[ijf§ 371 covers any conspiracy aimed at the government’s intangible right to conduct its lawful
functions without interference, then it is impermissibly vague and must be limited to bribery cases” Def.’s 3d Reply
at 4¢5, to be unpersuasive.
18
535
indictment is not required to set forth all ofthe evidence the [g]overnment plans to present
(quoting United States v. Palfrey, 499 F. Supp. 2d 34, 45 (D.D.C. 2007))).
Federal Rule of Criminal Procedure 7(c) requires that an “indictment . . . be a plain,
concise, and definite written statement ofthe essential facts constituting the offense charged."
Fed. R. Crim. P. 7(c). "An indictment alleging a § 371 conspiracy is sufficient ifit describes the
essential nature ofthe conspiratorial agreement and sets forth the essential elements ofthe
offense.” United States v. Recognition Equip., lnc., 71 1 F. Supp. 1, 5 (D.D.C. 1989), overruled
by Supreme Court recognized on other grounds as noted in l\/loore v. Hartman, Civ. Action Nos.
92-2288 (NHJ), 93-0324 (NHJ), 1993 WL 405785, at *8 (DiD.C. Sept. 24, 1993) (citing U§it_e§
States v. Williams, 504 U.S. 26, 50-55 (1992). Other than "stat[ing] the essential elements of
the offense,” an indictment charging a § 371 conspiracy must simply “allege at least one overt
act in furtherance of the conspiracy, and [ ] serve[] to apprise [the] defendant[] of what [he] must
be prepared to defend No further allegations are required in a § 371 indictment.” § at 4
(internal citation omitted).
Here, the Court finds that "[t]he indictment puts [the] defendant[] on notice that [he] must
be prepared to defend actions allegedly taken in furtherance ofa conspiracy," § at 5, "to
defraud the United States by interfering with the OFAC"s enforcement of its laws and regulations
prohibiting United States persons from dealing with SDGTs or blocked property,” Gov’t’s 4th
Opp’n at 10. As the government correctly notes §§ § at 9, paragraph 17 ofthe Indictment
clearly alleges that the defendant conspired with co-defendant lmad Hassoun and others to
obstruct the lawful functions ofthe OFAC, § lndictment 11 17. The Indictment further asserts
the "objects” ofthe alleged conspiracy, se_e §11 19, and details the means by which the
defendant, as well as others effected the alleged conspiracy to impede the OFAC and its lawful
19
functions including the purportedly overt actions the defendant allegedly committed to further
the conspiracy, §§ § 1111 25-41.9 Therefore, the Court finds that count one ofthe lndictment not
only contains sufficient detail to meet the requirements of Rule 7(c), but also sufficiently pleads
a conspiratorial agreement under § 371 between the defendant and other individuals to defraud
the United States by allegedly interfering with and obstructing the OFAC’s governmental
functions Accordingly, the Court must deny the defendant’s motion to dismiss count one ofthe
lndictment in its entirety for failure to plead a conspiratorial agreement10
E. The Defendant’s Motion to Dismiss Count One of the Indictment for Failure to
Specif"ically Plead False Statements
The defendant further contends that count one ofthe lndictment must be dismissed
because "the conspiracy to defraud charged in [c]ount [one] [ ] fails to identify what exactly in
[his] submissions to [the] OFAC [were] false.” Def.`s 5th l\/iot. to Dismiss at 4. Specifically, the
defendant argues that the allegedly false statements in the lndictment that "form the basis ofthe
charge that [he] conspired to defraud [the] OFAC . . . fail[] ‘to sufficiently apprise [him] of what
he must be prepared to meet,"" and therefore, he “cannot meaningfully prepare his defense." ld.
at 6 (quoting Russell v. United States 369 U.S. 749, 764 (1962)). The government in response
° The defendant contends that dismissal of count one ofthe lndictment for failure to allege a conspiratorial
agreement is warranted because the factual allegations regarding his purported false statements indicate unilateral
conduct on his behalf. g Def.’s 4th l\/lot. to Dismiss at 5. However, the Court finds this argument unconvincing
as the lndictment clearly alleges the use of false statements in communications with the OFAC as orie type of overt
act allegedly committed in furtherance ofthe alleged conspiracy between the defendant and other individuals g
lndictment1111 25~41.
'0 Alternatively, the defendant asserts that count one ofthe lndictment must be dismissed because it "does not allege
`one overall agreement among the various parties’ to bo_th defraud [the] OFAC M violate [the] lEEPA.” Def.’s 4th
l\/lot. to Dismiss at 6 (citation omitted); see also § at 5 (arguing that count one ofthe lndictment violates the rule
against duplicity which precludes thejoining oftwo or more distinct and separate offenses in one count). The Court
disagrees As the Supreme Court has observed, "[t]he allegation in a single count ofa conspiracy to commit several
crimes is not duplicitous for ‘[t]he conspiracy is the crime, and that is one, however diverse its objects.”`
Braverman v. United States 317 U.S. 49, 54 (1942) (quoting Frohwerk v. United States 249 U.S. 204, 210 (1919)).
And in this case, the Court finds that the lndictment sufficiently alleges one conspiratorial agreement between the
defendant and other individuals
20
maintains that count one sufficiently "gives [the defendant] the gist ofthe offense ofconspiracy,
the agreement to commit an unlawful act[,j and the means by which that agreement was to be
achieved” Gov’t’s 4th Opp’n at 14 (quoting Schino v. United States 209 F.2d 67, 69 (9th Cir.
1953)). ln any event, the government asserts that “portions of [c]ount [o]ne ofthe lndictment
actually identify which submissions to [the] OFAC included fraudulent representations.” § at
14 n.10 (citing Indictment ‘1 28).
To survive a pretrial challenge to its facial sufficiency, an indictment must “first[]
contain[j the elements of the offense charged and fairly inform[] a defendant of the charge
against which he must defend, and Second, enable[] him to plead an acquittal or conviction in bar
of future prosecutions for the same offense.” Hamling v. United States 418 U.S. 87, 117 (1974).
"The test for sufficiency is whether it is fair to require the accused to defend himself on the basis
ofthe charge as stated in the indictment[,]” and an indictment passes muster under this test “if it
clearly informs the defendant ofthe precise offense of which he is accused so that he may
prepare his defense.” United States v. Conlon, 628 F.2d 150, 155 (D.C. Cir. 1980). Therefore,
an indictment “must fairly apprise the accused of the conduct allegedly constituting the offense
so as to enable him to prepare a defense against those allegations." United States v. Dale` 782 F.
Supp. 615, 621 (D.D.C. 1991). And, “the language ofthe statute may be used in the general
description of an offen[s]e, but it must be accompanied with such a statement ofthe facts and
circumstances as will inform the accused ofthe specific offen[s]e, coming under the general
description, with which he is charged." Hamling, 418 U.S. at 117-18. Consequently, "[a]n
indictment not framed to apprise the defendant `with reasonable certainty[ 1 of the nature of the
accusation against him is defective, although it may follow the language of the statute.”` LJMQ
States v. Hillie, 227 F. Supp. 3d 57, 71 (D.D.C. 2017) (alterations in original) (quoting United
21
States v. Nance, 533 F.2d 699, 701 (D.C. Cir. 1976)).
l\/loreover, “[w]hen testing the sufficiency ofthe charges in an indictment ‘the indictment
must be viewed as a whole and the allegations [therein] must be accepted as true at this stage of
the proceedings”’ § (alteration in original) (quoting United States v. Bowdoin, 770 F. Supp.
2d 142, 145 (D.D.C. 2011)). ln making this determination, “the court ‘is limited to reviewing the
fa§ ofthe indictment and, more specifically, the language used to charge the crimes”’ §
(quoting United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009)).
Here, the Court finds that count one of the lndictment sufficiently apprises the defendant
with reasonable certainty of the conduct allegedly constituting the conspiracy to defraud the
United States and therefore is not facially defective, lnitially, as the government notes, "the
[d]efendant is not charged with making a false statement to [the] OFAC; rather, the [d]efendant
is charged with conspiring with others to interfere with [the] OFAC`s lawful functions of
enforcement of laws and regulations prohibiting U.S. persons from doing business with SDGTs
or blocked property without a license from [the] OFAC.” Gov’t’s 4th Opp`n at 15. Further, as
the Court previously noted, the making of false statements to the OFAC is but only one type of
overt act that the defendant allegedly committed in furtherance ofthe conspiracy to defraud as
charged in count one ofthe indictment g lndictment 1111 25-41. And contrary to the
defendant’s proposition, §§ Def.’s 5th Reply at 2 (asserting that the other two categories of
alleged overt acts do not apply to the charged conspiracy to defraud the United States because
"neither subsection . . . mention[] [the] OFAC" (emphasis removed)), the language of count one
ofthe lndictment does not limit any ofthe asserted overt acts to any one particular object ofthe
conspiracy, § lndictment 1111 26-41. Rather, the language clearly states that the defendant
purportedly “committed” each of the asserted overt acts "[i]n furtherance of [the charged]
22
conspiracy.” § 11 25. Thus, the Court finds the defendant’s argument that the charged
conspiracy to defraud the United States is limited to the overt acts concerning his purportedly
false statements made to the OFAC unconvincing §§ § 11 17(b) (charging the defendant with
conspiracy “to defraud the United States [g]overnment by interfering with and obstructing a
lawful government function, that is the enforcement of laws and regulations prohibiting dealing
with SDGTs or in blocked property without having first obtained the required licenses"
(emphasis added), which logically would involve the alleged overt acts of conducting
transactions with United States companies and corresponding with United States persons in
furtherance of the charged conspiracy). ll
ln any event, the Indictment does contain factual allegations that sufficiently apprise the
defendant of the allegedly false statements made to the OFAC. For instance, count one
specifically identifies three letters purportedly sent either by the defendant or at the defendant`s
direction containing misrepresentations made to the OFAC, Le_ § 1111 26~28, and count one
further characterizes the defendant’s purported misrepresentations M, § 11 27 (asserting
that the defendant “claimed that the [attached] report represented[] ‘an unimpeded, objective
view into [his] life and business,` when, in fact, [he] and others endeavored to conceal relevant
facts and circumstances regarding his business dealings and the companies under his control
from those preparing the report"). Consequently, count one of the lndictment adequately puts
the defendant on notice of the allegations regarding his purportedly false statements made to the
OFAC that he must defend against And inapposite to the defendant’s contention, se_e Def.’s 5th
" The defendant appears to suggest that the government must prove that he intended to conspire to defraud the
United States government _S_e_e Def.’s 5th Reply at 3 ("[T]he government has provided no authority whatsoever for
the proposition that merely violating a law (such as the lEEPA) in a manner that involves deception-with no
intention to interact with the govemment, either directly or indirectly-can amount to a conspiracy to defraud the
United States lt obviously cannot The very core ofthe offense is a deception ofthe U.S. govemment, not some
other purported victim.”).
23
to Dismiss at 7 (“His submissions to [the] OFAC were many pages long, and each had multiple
attachments lt is simply not sufficient for the government to identify [his] general summations
of those attachments . . . without providing factual allegations that actually explain to him what
he is accused of concealing.”), count one ofthe Indictment need not allege all false
representations purportedly made to the OFAC for it to be sufficient, ge Ralf§y, 499 F. Supp.
2d at 45 (“[A]n indictment is not required to set forth all the evidence the [g]overnment plans to
present”), particularly “[b]ecause an indictment is a charging instrument rather than a discovery
device"’ United States v. Crosby, 789 F. Supp. 440, 443 (D.D.C. 1992). Accordingly, the Court
finds count one ofthe lndictment facially valid, as it places the defendant on notice ofthe
allegedly false statements made to the OFAC in furtherance of the charged conspiracy, and
therefore, the Court must also deny this aspect of the defendant’s motion to dismiss
Alternatively, the defendant requests that the Court require the government to furnish him
with "a bill of particulars regarding the allegedly false statements.” Def.’s 5th l\/lot. to Dismiss at
7. As support for his position, the defendant argues that he "cannot `adequately prepare’ for trial
without knowing which specific statements or omissions in his voluminous submissions to [the]
OFAC are alleged to be false, and in what sense they are alleged to be false.” § at 8. In
response, the government contends that the “information the [d]efendant presently requests is
available to him in another form~his assessment of the materials he provided to [thej OFAC
and which the government disclosed in the instant matter and the other and copious discovery
provided to him.” Gov’t’s 4th Opp’n at 17-18. The government further argues that the
lndictment “more than adequately advise the [d]efendant of the particulars of the government’s
case against him.” § at 18. And, the defendant does not refute the government’s claim that the
lndictment and the discovery it has now produced provide him with the information he seeks
24
through a bill of particulars _S_e§ Def.’s 5th Reply at 5. Therefore, the Court agrees with the
government’s position.
A trial court has discretion "to determine whether a bill ofparticulars should be provided,
and the court should grant a motion for a bill of particulars to the extent it believes it is necessary
to allow the defendant[] to adequately prepare for and avoid surprise at trial.” United States v.
Bazezew, 783 F. Supp. 2d 160, 167 (D.D.C. 2011); see also United States v. Anderson, 441 F.
Supp. 2d 15, 19 (D.D.C. 2006) (“[T]he [c]ourt should grant such motions when ‘necessary to
prevent unfair sufprise at trial.”’ (quoting United States v. Espy, 989 F. Supp. 17, 34 (D.D.C.
1997))). Although “1t]he Court must strike a ‘prudent balance’ between the legitimate interests
ofthe government and those ofthe defendant[],” § (quoting United States v. l\/lacFarlane, 759
F. Supp. 1163, 1169 (W.D. Pa. 1991)), it is mindful that “[a] bill of particulars is not a discovery
tool or a device for allowing the defense to preview the government’s theories or the
government’s evidence,” §
Here, the Court concludes that the defendant, through a bill of particulars, “is [notj
entitled to know precisely which allegedly false statements the government relies on in each
paragraph, the way in which the government alleges them to be false, and when approximately
they were allegedly made.” Anderson, 441 F. Supp. 2d at 20. Although another member of this
Court in Anderson granted a defendant’s request for a bill of particulars to provide the defendant
the ability to know precisely what his false statements were, §_e_e_ §, as the government correctly
notes in this case “false statements [are not] at the core of the [defendant’s] charges against
him[,]” Gov`t’s 4th Opp’n at 18. Rather, the defendant is charged with conspiracy
to [ 1 among other things defraud the United States government by interfering with
[the] OFAC’s lawful function of enforcing laws and regulations prohibiting U.S.
persons from doing business with SDGTs or in blocked property without a license,
and the [d]efendant`s submissions to [the] OFAC, which included
25
misrepresentations or fraudulent statements constituted some ofthe charged over
acts taken in furtherance in conspiracy
§ l\/loreover, the Court finds the allegations in the lndictment to clearly set forth the
submissions and the defendant’s underlying misrepresentations allegedly made to the OFAC that
constitute overt acts in furtherance of the conspiracy for him to prepare an adequate defense at
trial. § lndictment 1111 26»28.12
Accordingly, because a bill of particulars is not a discovery tool, the Court must deny the
defendant’s alternative request for a bill of particulars
F. The Defendant’s Motion to Dismiss the Money Laundering Count of the Indictment
Count eleven ofthe Indictment charges the defendant with conspiring to commit money
laundering in violation of 18 U.S.C. § l956(a)(2)(A) and 1956(a)(2)(B)(i). §e_e lndictment
1111 44-55. The defendant contends that count eleven “'must be dismissed for failure to state an
offense pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v).” Def.’s 6th l\/lot. to
Dismiss at 1. Specifically, the defendant asserts that “[i1t is a basic requirement of such a charge
that the alleged money laundering be separate and distinct from the underlying offense that
generated the proceeds to be laundered." §; Ms_p Def.`s 6th Reply at 4 (asserting that
dismissal is required because 18 U.S.C. § 1956(a)(2)(A) and (B)(i), require the "act of money
laundering [to be1 distinct from the underlying [specified unlawful activity]”). But, in this case,
the defendant claims that “every single one of the payments that the [ 1 [I1ndictment alleges in
13 The Court notes the untimeliness ofthe defendant’s request for a bill of particulars which "comes 308 days after
arraignment." Gov`t’s 4th Opp’n at 17. Under Federal Rule ofCriniinal Procedure 7(f), a defendant should move
for a bill of particulars “within 14 days after arraignment or at a later time ifthe court permits." Fed. R. Crim. P.
7(f); see also United States v. Homaune 898 F. Supp. 2d 153, 165 (D.D.C. 2012). As the government correctly
points out, the defendant “does not provide an explanation for the significant departure from the 14-day default
established by the rule,” Gov’t’s 4th Opp’n at 17; g Def.’s 5th Reply at 5, thereby lending additional support to the
Court’s conclusion that the defendant’s request for a bill of particulars should be denied § Homaune, 898 F.
Supp. 2d at 165 (denying the defendant’s request for a bill of particulars in part because “the motion came fifty-two
days after arraignment_far beyond Rule 7(f)’s fourteen-day default-_with no explanation for why his request took
so long to lodge”).
26
support ofthe money laundering conspiracy also is alleged as part ofthe underlying offense."
Def.’s 6th l\/Iot to Dismiss at 1; s_e_e_al_sp § at 3 ("[E]very single one ofthe overt acts that the
government alleges [the defendant’s1 companies undertook in furtherance of a money laundering
conspiracy was simply a payment for goods that formed the basis for the underlying IEEPA
counts in the [ 1 [I1ndictment.”). ln response, the government argues "that raising this issue,
commonly referred to as ‘merger,’ is premature at this time, but in any event, the motion is
without merit and should be denied.” Gov’t’s 5th Opp’n at 3; M § at 4 ("Specifically, (l)
the issue of whether or not the money laundering charge impermissibly merges with the other
charges is a fact-driven, post-conviction issue, primarily concerned with fairness in sentencing
and punishment, and it is premature to consider it via a pretrial motion to dismiss and (2) even if
the court were to consider the issue properly subject to a pre-trial adjudication, the motion should
be denied.").
The defendant’s challenge is primarily predicated on whether 18 U.S.C. § 1956(a)(2)
requires “a distinct act of money laundering separate and apart from the transactions that
allegedly violated [the] IEEPA and constituted the [specified unlawful activity1 for money
laundering." Def.’s 6th Reply at 2.13 As this issue turns on statutory interpretation, the Court`s
analysis would generally begin with the language of the statute to determine whether or not the
language is unambiguous g Barnhart, 534 U.S. at 450. The Court finds the Second Circuit’s
analysis and reasoning in United States v. Piervinanzi, 23 F.3d 670 (2d Cir. 1994), to be
particularly informative. In Piervinanzi, the petitioner argued that his conviction under
'3 The parties spend a substantial amount oftime in their briefing discussing whether the issue presented in the
defendant’s challenge involves consideration ofa potential “merger” conflict BGov’t’s 5th Opp’n at 6*8; Def.`s
6th Reply at 3_5. Given the Court’s analysis provided M in this section, the Court finds it unnecessary to address
this dispute, which the Court notes that the parties agree, to some extent, is not applicable to this case, see, e.g.,
Def.’s 6th Reply at 3.
27
§ 1956(a)(2) was improper because “the [statutory] language [and1 . . . its legislative history . . .
support the conclusion that this provision proscribes only ‘laundering’ activity that is analytically
distinct from the underlying criminal activity that it promotes.” 23 F.3d at 679. Rejecting the
petitioner’s position, the Second Circuit conducted an "1a1nalysis ofthe overall structure of
§ 1956,” and concluded that:
Section 1956(a)(1), the domestic money laundering statute, penalizes financial
transactions that "involv[e1 . . . the proceeds of specified unlawful activity." The
provision requires first that the proceeds of specified unlawful activity be
generated, and second that the defendant, knowing the proceeds to be tainted,
conduct or attempt to conduct a financial transaction with these proceeds with the
intent to promote specified unlawful activity. By contrast, § 1956(a)(2) contains
no requirement that "proceeds” first be generated by unlawful activity, followed by
a financial transaction with those proceeds for criminal liability to attach. lnstead,
it penalizes an overseas transfer “with the intent to promote the carrying on of
specified unlawful activity."’
§ at 679-80 (alteration and omission in original) (footnotes omitted) (quoting 18 U.S.C.
§ 1956(a)(2)(A)). The Second Circuit further reasoned that “[t1he fact that Congress uses
different language in defining violations in a statute indicates that Congress intentionally sought
to create distinct offenses[,]” and therefore, “[t1he clearly demarcated two-step requirement
which [the petitioner] advocate[d] in the construction of§ 1956(a)(2) is apparent in other
provisions of the federal money laundering statues but not in § 1956(a)(2)." § at 680.
l\/Ioreover, the Second Circuit continued its analysis by considering “[t1he relatively
scanty legislative history of§ 1956(a)(2),” which it found to support its conclusion. § The
Second Circuit noted that
[t1he Senate report on the version of the bill reported to the Senate explains that
§ 1956(a)(2) is "designed to illegalize international money laundering
transactions” and “covers situations in which money is being laundered . . . by
transferring it out of the United States.” The Senate [r1eport’s discussion of
§ 1956(a)(2) is conspicuously silent about any requirement that the funds be
proceeds of some distinct activity, merely stating that the statute is violated when a
defendant “engage[s1 in an act of transporting or attempted transporting and either
28
intend[s1 to facilitate a crime or know[s] that the transaction was designed to
facilitate a crime.” By contrast, the Senate [r1eport explains that § 1956(a)(1)
"requires that the property involved in a transaction must in fact be proceeds of
‘specified unlawful activity’ . . . .”
§ at 680-81 (omissions and second, third, and fourth alterations in original) (internal citations
omitted). And although the Second Circuit acknowledged that “[t1he House 1r1eport 1 1
discusse[d1 a version ofthe money laundering bill too different from that enacted to be of any
use in divining congressional intent with respect to the enacted provisions of§ 1956," it
nonetheless determined that “the broader language that Congress ultimately adopted besp[oke]
an intention not to be constrained to punishing laundering activity involving separately derived
criminal property.” § at 681.
Agreeing with the Second Circuit’s analysis the Court adopts its conclusion that,
contrary to the defendant’s position, § 1956(a)(2) does not require a “a distinct act of money
laundering separate and apart from the transactions that allegedly violated [the1 IEEPA and
constituted the [specified unlawful activity1 for money laundering." Def.’s 6th Reply at 2.14
Although the defendant does not challenge the holding in Piervinanzi,l5 he nonetheless
contends that this Court should follow United States v. Hall, 613 F.3d 249 (D.C. Cir. 2010),
'4 The defendant also states that a distinct act requirement "is especially apparent when the underlying [specified
unlawful activity1 is an offense that, like an IEEPA violation, normally involves an international transaction."
Def.’s 6th Reply at 7; see also § (relying on United States v. Santos 553 U.S. 507 (2008), for the proposition that
"1t1he Supreme Court has cautioned against interpreting the money laundering statute in such a way that entire
categories of crimes that Congress has penalized elsewhere would constitute money laundering every time"). The
defendant fails to cite any other legal authority supporting his position, and moreover, the defendant in Santos was
charged pursuant to § 1956(a)(1), g Santos 553 U.S. at 509, and not § 1956(a)(2). Additionally, as the
government notes "courts have specifically approved money laundering charges coupled with underlying IEEPA
counts.” Gov’t’s 5th Opp’n at 13 (collecting cases). Thus the Court finds the argument on this point unconvincing
'5 The defendant does not assert any arguments either to distinguish Piervinanzi or demonstrate why the Second
Circuit`s analysis and conclusion is not applicable to this case. § Def.’s 6th Reply at 5 (stating, without any
explanation or support, only that “the government’s leading case for the proposition that [§ 19561(a)(2) offenses are
different actually confirms that the act ofinternational money laundering must be ‘analytically distinct’ from the
underlying [specified unlawful activity1”).
29
43
wherein this Circuit reversed a defendant’s conviction because ‘the government failed to prove
the elements of conspiracy to commit money laundering’ given that ‘the alleged money
laundering activity was part and parcel ofthe underlying [specified unlawful activity]."` Def.’s
6th Reply at 4 (quoting H§ll, 613 F.3d at 253-54). However, the defendant’s reliance on H_al_l is
to no avail. ln §L, the defendant “was charged in the indictment with, and found guilty by the
jury of, conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i)
and 1956(h).” 613 F.3d at 253. ln reviewing the statutory language of§ 1956(a)(1), this Circuit
concluded that “[t]he offense of money laundering must be separate and distinct from the
underlying offense that generated the money to be laundered.” § at 254 (collecting cases from
various Circuits supporting this conclusion). Again, the defendant overlooks that he has been
charged pursuant to § 1956(a)(2), not § 1956(a)(1), and therefore, the Circuit’s holding in _Ha_H,
which was limited to § 1956(a)(1), is inapplicable to the circumstances at hand. Accordingly,
because the statutory language of§ 1956(a)(2) does not contain a distinct act requirement, the
Court must deny the defendant’s motion to dismiss the money laundering count of the
lndictment,
G. The Defendant’s Motion to Dismiss Pursuant to the Rule of Specialty
The defendant next argues that the lndictment should be dismissed in its entirety because
the government’s conduct [ l in obtaining an indictment laden with misleading
allegations ofterrorism for the purpose of facilitating extradition under misleading
pretense . . . constitute[s] abuse of the grand jury . . . [and] a violation ofthe Rule
of Specialty, which limits how a prosecution may proceed when the defendant`s
extradition was procured by government misconduct
Def.’s 7th l\/lot. to Dismiss at 2. ln other words, the defendant contends that this prosecution
must be dismissed because "the government procured [his] extradition by obtaining an
indictment with inflammatory [terrorism] allegations that it declined [to] pursue after [he] was
30
safely in U.S. custody." § at 10; §_ee§al_s_c_) § at 12413 ("[T]he evidence is incontrovertible that
the United States misled l\/loroccan authorities into believing that [the defendant] was charged
with being a terrorist and would be prosecuted for serious crimes of terrorism in this country.”).
ln response, the government asserts that “the [d]efendant lacks standing to invoke the Rule of
Specialty," and that in any event, his “arguments are without merit” because it “has acted within
the law at all times.” Gov’t’s 6th Opp’n at 4.
"The Rule of Specialty is a doctrine that `an internationally extradited defendant may be
tried only for the offenses specified in the warrant of extradition . . . .”’ United States v.
Apodaca, 275 F. Supp. 3d 123, 140 (D.D.C. 2017) (quoting Day v. Trump, 860 F.3d 686, 689
(D.C. Cir. 2017)); see also United States v. Valencia-Truiillo, 573 F.3d 1171, 1173-74 (l lth Cir.
2009) ("The rule of specialty `stands for the proposition that the requesting state` which secures
the surrender of a person, can prosecute that person only for the offense for which he or she was
surrendered by the requested state or else must allow that person an opportunity to leave the
prosecuting state to which he or she had been surrendered.”’ (quoting United States v.
Gallo-Chamorro, 48 F.3d 502, 504 (l lth Cir. 1995))). Although the rule of specialty is a
"treaty-law doctrine," United States v. Stokes, 726 F.3d 880, 887 (7th Cir. 2013). there is a split
among the Circuits on whether the rule applies in situations where an individual is not extradited
pursuant to a treaty, compare Valencia-Truiillo, 573 F.3d at 1 179 (“The rule of specialty applies
only to extraditions pursuant to a treaty.”), with United States v. Kaufman, 858 F.2d 994, 1007
n.4 (5th Cir. 1988) (“The rule of specialty is a general rule ofinternational law which applies
with equal force whether extradition occurs by treaty or comity."' (citing Fiocconi v. Attorney
Gen. of U.S., 462 F.2d 475, 479~80 (2d Cir. 1972)). However, as this Circuit has explained,
"[t]he very foundation of specialty is international comity[.] . . . The specialty doctrine
31
encourages international cooperation in the extradition system by giving assurance that, when a
country gives up persons for extradition only for specified purposes or on certain conditions,
those terms will not be flouted.” United States v. Trabelsi, 845 F.3d 1181, 1196 (D.C. Cir.
2017).
The case law ofthis Circuit is unclear as to whether “a criminal defendant has [ ]
standing to assert the principle of specialty, because only the requested state has the right to raise
such an objection.” United States v. Sensi, 879 F.2d 888, 892 n.l (D.C. Cir. 1989) (collecting
cases); see also United States v. Lopesierra-Gutierrez, 708 F.3d 193, 206 (D.C. Cir. 2013)
(acknowledging the “conflicting authority as to whether a criminal defendant_as opposed to the
extraditing state_has standing to assert the doctrine of specialty"`). But, case law is clear that
the rule of specialty "governs prosecutions, not evidence."` Lopesierra~Gutierrez, 708 F.3d at
206; W §§ns_i, 879 F.2d at 892 ("[A] person can be prosecuted only for those charges on
which he was extradited . . . .”).
Here, the Court finds that the government did not violate rule of specialty in its attempt to
secure the defendant’s extradition from l\/lorocco for him to face prosecution for the charges
alleged in the Indictment. Initially, consistent with this Circuit’s precedent, g Lopesierra-
Gutierrez, 708 F.3d at 206, the Court’s conclusion does not require it to reach the issue of
whether a criminal defendant has standing to assert the rule of specialty. However, even
assuming that the defendant has standing to assert the rule. g _S__eg_s_i, 879 F.2d at 892 n.1
(declining to address the issue of standing and proceeding to the merits), his claim would be
"without merit,” Lopesierra-Gutierrez, 708 F.3d at 206. As the defendant correctly notes, se_e
Def.’s 7th l\/lot. to Dismiss at 8-9, he was extradited in accordance with l\/loroccan law, which
provides that “[e]xtradition is not allowed except under the condition of not prosecuting the
32
extradited person or sentencing him or subjecting him to any measure restricting his personal
freedom, for any action whatsoever preceding the extradition, other than the crime for which he
was extradited,” § at 9 (emphasis removed) (citation omitted). And, as the government
contends, the defendant “currently faces prosecution for the exact same charges under which lie
was extradited.” Gov’t’s 6th Opp’n at 10; see also § (“The charges in the initial [i]ndictment,
which was provided to l\/lorocco as part of the extradition process, remain entirely intact in the
Superseding Indictment save for superfluous language regarding background on [the
defendant`s] listing as a [SDG'I`] by [the OFAC], and the omission of part ofthe one ofthe
[d]efendant’s own statements to [the] OFAC in which the [d]efendant mentioned Hizballah."
(footnote omitted)). This is a fact not contested by the defendant §§ Def.’s 7th l\/lot. to
Dismiss at 14~15 (not disputing the fact that he currently faces prosecution ofthe same charges
presented to the l\/loroccan authorities). Therefore, because the defendant is only charged with
crimes that were the basis for his extradition, the defendant’s claim that the rule of specialty has
been violated lacks merit.
Nonetheless, the defendant contends that the government’s “presentation of th[ose]
charges" to the l\/Ioroccan authorities were based "solely on allegations of terrorist acts." § at
14 (citing the meeting minutes ofthe l\/Ioroccan authorities with the defendant).l" Thus, from the
defendant’s perspective, because the lndictment now contains no references to "alleged terrorist
activity," § at 1-2, the government violated the rule of specialty because his "prosecution [is
171
not] `based on the same facts as those set forth in the request for extradition, § at 12 (quoting
'° The defendant also asserts that "the government has a misguided view of what constitutes the `charges”` and that
"the original indictment included inflammatory charges that [he] supported acts ofterrorism and financed terrorist
organizations That the indictment did not include a count styled as `terrorism’ does not mean that the allegations of
terrorism were not part ofthe charges.” Def.’s 7th Reply at 9. However, the Court is baffled in regard to how the
defendant can claim that the allegations about terrorism referenced in the original indictment constituted charges
§ § ln any event, the Court considers the plain meaning ofthe term "charges” to be unambiguous and
intuitive*that being the individual crimes enumerated as the separate counts ofthe indictment
33
S§ns_i, 879 F.2d at 895-96). However, the defendant’s reliance on S§n_s_i is misplaced for several
reasons First, as the government notes, the defendant has not cited, nor has the Court been able
to locate, any authority where a court found that the rule of specialty limits the prosecution of an
individual extradited to the facts set forth in the extradition request. ln addition, although this
Circuit`s language in §e_n_si relied on by the defendant would appear to facially support his
proposition that the prosecution must be based on the same facts, the Circuit in §;en_si emphasized
this requirement as part of its analysis of whether the rule of specialty was violated, given the
explicit language ofthe treaty pursuant to which the defendant in §§n_s_i was extradited. _S_<;<_: 879
F.2d at 895 (noting that the treaty provided that "[a] person extradited shall not be detained or
proceeded against in the territory of the requesting Party [in the present case, the United States]
for any offense other than an extraditable offense established by the facts in respect of which his
extradition has been granted”); see also § ("The plain terms of . . . the Extradition Treaty set
out the two requirements that must be met for each count of the indictment First, the charge
must be `an extraditable offense.` Second, the charge must be ‘established by the facts in respect
of which [the defendant’s] extradition has been granted.’,"). Here, the l\/loroccan law
incorporating the rule of specialty pursuant to which the defendant was extradited does not
contain such language which limits the prosecution to the facts set forth in the request for
extradition; rather, as acknowledged by the defendant, it limits the prosecution of the extradited
person to the “the crime for which he was extradited.” S_ee Def.`s 7th l\/lot. to Dismiss at 9
(citation and internal quotation marks omitted). Consequently, the Court finds unconvincing the
defendant’s argument predicated on Sensi that this prosecution must be terminated because it is
34
no longer based on the same facts presented to the l\/loroccan authorities17
The defendant further contends that the government’s use of “inflammatory allegations
[of terrorist activity] that are not material to the charges” in the original indictment and its
presentation of those allegations to the l\/loroccan authorities constituted misconduct because it
only "us[ed] those allegations to mislead" the l\/loroccan authorities Def.’s 7th Reply at 10. The
Court disagrees As the government notes, the original indictment did not allege that the
defendant “participated in any acts ofterrorism.” Gov’t’s 6th Opp’n at 1 1. Rather, the original
indictment only iterated the OFAC’s designation of Hizballah as a SDN and the defendant as a
SDGT, s_e_e_ Original lndictment 1111 1_3, ECF No. 1, to "make[] clear that the [d]efendant was
sanctioned by the U.S. government, and he now stands charged with subverting those sanctions,"
Gov’t’s 6th Gpp’n at 1 1. l\/loreover, the Court concurs with the government that “the documents
cited by the [d]efendant as provided to l\/Iorocco in furtherance of the [d]efendant’s extradition
likewise accurately cited the charges pending against [him] and contained summaries which
mentioned [the] OFAC`s findings pursuant to the designation." § at l 1-12 (footnote omitted);
M Def.’s 6th l\/Iot. to Dismiss, Exhibits ("Exs.") 1-4E. Thus, the Court finds that no
misconduct was committed by the government
Finally, the defendant asserts that “the Court should order the government to produce all
grand jury transcripts forthwith so the defendant and the Court can ascertain whether the
'7 The defendant also cites Johnson v. Browne, 205 U.S. 309 (1907), and Casey v. U.S. Dep’t of State, 980 F.2d
1472 (D.C. Cir. 1992), as further support for his position, S_ee Def.’s 7th l\/lot. to Dismiss at 10-12. The defendant’s
reliance on these cases is also misplaced ln Johnson, the Supreme Court examined the Canadian extradition treaty
to determine whether that defendant’s extradition violated the rule of specialty, §§ 205 U.S. at 316420, and
concluded that "nothing in the treaty [ ] provide[d] [for] a person [to] be surrendered for one offense and then . . . be
punished for another," § at 321. Thus, the Court focused on the crimes or charges being prosecuted, not the factual
allegations set forth in the extradition request Furthermore, Casey focused on the application ofthe doctrine of
"dual criminality," not the rule of specialty §§ 980 F.2d at 1475. ln any event, the Circuit in Casey reiterated the
holding in Johnson that "the principle of specialty . . . [requires] a fugitive [to] only be prosecuted for the crime for
which he was extradited." § at 1476 n.5 (emphasis added).
35
government in fact procured [his] initial indictment and subsequent extradition based on
misconduct that occurred before the grandjury." Def.`s 7th l\/lot. to Dismiss at 17~18.
"Although grand jury proceedings are usually kept secret, `[t]he court may authorize disclosure .
. . at the request ofthe defendant who shows that a ground may exist to dismiss the indictment
because ofa matter that occurred before the grand jury.”" United States v. Wright, 234 F. Supp.
3d 45, 47 (D.D.C. 20170 (alteration and omission in original) (citing Fed. R. Crim. P.
6(e)(3)(E)). And “[i]n this circuit, a defendant must show a ‘particularized need` for disclosure,"
which “requires a ‘factual basis’_-‘conclusory or speculative allegations of misconduct’ do not
suffice.” § (quoting United States v. Naegele, 474 F. Supp. 2d 9, 10 (D.D.C. 2007)).
l\/Ioreover, “[t]he threshold for such a showing is very demanding, and the disclosure of grand
jury information is ‘exceedingly rare."’ § at 47-48 (quoting Naegele, 474 F. Supp. 2d at 11).
Here, because the Court has concluded that the documents submitted to the l\/loroccan authorities
do not indicate that the government engaged in misconduct in securing the defendant’s
extradition, the defendant has not met the exceedingly high burden of demonstrating a
particularized need for disclosure ofthe grand jury transcripts in this case. Therefore, the Court
must deny this alternative request by the defendant
ln sum, the Court finds the defendant’s argument that the government violated the rule of
specialty to be meritless because this prosecution is based on the same charges for which he was
extradited. Additionally, the record before the Court does not indicate that the government
engaged in any misconduct to secure the defendant’s extradition, Accordingly, the Court must
deny the defendant’s motion to dismiss pursuant to the rule of specialty and alleged government
36
.....,..._.wy_… , .t.¢.\ w 4
or prosecutorial misconduct 18
IV. CONCLUSION
For the foregoing reasons, the Court must deny each of the defendant’s six motions to
dismiss the original indictment each ofthe defendant’s seven motions to dismiss the
Superseding lndictment, and his request for an evidentiary hearing on his motion to dismiss
pursuant to the rule of specialty.
so oRi)ERED this Lth day OfAugust 2018 19 g §
RE IE B. WALTON
United States District Judge
'8 The defendant also requests that the Court conduct an evidentiary hearing on his motion to dismiss pursuant to the
rule ofspecialty. _S__e§ Def.’s Request at l. Specifically, the defendant states that “it appears that a [Drug
Enforcement Administration (‘DEA’)] official met face-to-face with Moroccan officials to request [hisj extradition.
but the government has not mentioned the meeting, much less produced notes or memoranda reflecting what
occurred," and therefore, "the government [should] be [required] to produce a witness who can testify to precisely
what role U.S. government officials played in requesting [his] extradition, and what the l\/loroccan government was
told about [his] alleged connection with Hizballah and terrorism.” § at 2. Having concluded that denial ofthe
defendant’s motion to dismiss pursuant to the rule of specialty is warranted, the Court finds it unnecessary to hold an
evidentiary hearing on that motion. And regarding the defendant’s contention that a hearing is necessary given the
government’s purported omission of evidence concerning the purported face-to-face meeting between the l\/loroccan
government and a DEA agent, the defendant does not proffer any argument or evidence regarding how that alleged
omission would alter the Court’s ruling on his motion to dismiss ln fact, contrary to the defendant’s alleged
assertion. the documentary evidence attached to his evidentiary request does not "suggest that the DEA_ in its
meeting with l\/loroccan authorities would have wrongly emphasized that [lie] was wanted for terrorism and
financing ofterrorism.” Def.’s Request Reply at 2 (asserting this position without any citation to any language in
the attached document). lnstead, that document only contains a recitation ofthe charges the defendant faces in this
prosecution, as well as one comment allegedly made by the defendant "that he was not involved with terrorists."
Def.’s Request, Ex. 1 (DEA Report oflnvestigation (l\/lar. 28, 2017) (filed under seal) at DOJ_01299966.
Accordingly, the Court must deny the defendant’s request for an evidentiary hearing
19 The Court will contemporaneously issue an Order consistent with this l\/lemoranduin Opinion.
37