United States District Court, Southern District of New York
May 29, 2001
UNITED STATES OF AMERICA, PLAINTIFF, USAMA BIN LADEN, A/K/A "USAMAH BIN-MUHAMMAD BIN-LADIN," A/K/A "SHAYKH USAMAH BIN-LADIN," A/K/A "ABU ABDULLAH," A/K/A "MUJAHID SHAYKH," A/K/A "HAJJ," A/K/A "ABDUL HAY," A/K/A "AL QAQA," A/K/A "THE DIRECTOR," A/K/A "THE SUPERVISOR," A/K/A "THE CONTRACTOR," MUHAMMAD ATEF, A/K/A "ABU HAFS," A/K/A "ABU HAFS EL MASRY," A/K/A "ABU HAFS EL MASRY EL KHABIR," A/K/A "TAYSIR," A/K/A "SHEIKH TAYSIR ABDULLAH," A/K/A "ABU FATIMAH," A/K/A "ABU KHADIJA," AYMAN AL ZAWAHIRI, A/K/A "ABDEL MUAZ," A/K/A "DR. AYMAN AL ZAWAHIRI," A/K/A "THE DOCTOR," A/K/A "NUR," A/K/A "USTAZ," A/K/A "ABU MOHAMMED," A/K/A "ABU MOHAMMED NUR AL-DEEN," MAMDOUH MAHMUD SALIM, A/K/A "ABU HAJER AL IRAQI," A/K/A "ABU HAJER," KHALED AL FAWWAZ, A/K/A "KHALED ABDUL RAHMAN HAMAD AL FAWWAZ," A/K/A "ABU OMAR," A/K/A "HAMAD," ALI MOHAMED, A/K/A "ALI ABDELSEOUD MOHAMED," A/K/A "ABU OMAR," A/K/A "OMAR," A/K/A "HAYDARA," A/K/A "TAYMOUR ALI NASSER," A/K/A "AHMED BAHAA ELDIN MOHAMED ADAM," WADIH EL HAGE, A/K/A "ABDUS SABBUR," A/K/A "ABD AL SABBUR," A/K/A "WADIA," A/K/A "ABU ABDULLAH AL LUBNANI," A/K/A "NORMAN," A/K/A "WA'DA NORMAN," A/K/A "THE MANAGER," A/K/A "TANZANITE," IBRAHIM EIDAROUS, A/K/A "IBRAHIM HUSSEIN ABDELHADI EIDAROUS," A/K/A "DAOUD," A/K/A "ABU ABDULLAH," A/K/A "IBRAHIM," ADEL ABDEL BARY, A/K/A "ADEL MOHAMMED ABDUL ALMAGID ABDEL BARY," A/K/A "ABBAS," A/K/A "ABU DIA," A/K/A "ADEL," FAZUL ABDULLAH MOHAMMED, A/K/A "HARUN," A/K/A "HARUN FAZHL," A/K/A "FAZHL ABDULLAH," A/K/A "FAZHL KHAN," MOHAMED SADEEK ODEH, A/K/A "ABU MOATH," A/K/A "NOURELDINE," A/K/A "MARWAN," A/K/A "HYDAR," A/K/A "ABDULLBAST AWADAH," A/K/A "ABDULBASIT AWADH MBARAK ASSAYID," MOHAMED RASHED DAOUD AL-'OWHALI, A/K/A "KHALID SALIM SALEH BIN RASHED," A/K/A "MOATH," A/K/A "ABDUL JABBAR ALI ABDEL-LATIF," MUSTAFA MOHAMED FADHIL, A/K/A "MUSTAFA ALI ELBISHY," A/K/A "HUSSEIN," A/K/A "HUSSEIN AIL," A/K/A "KHALID," A/K/A "ABU JIHAD" KHALFAN KHAMIS MOHAMED, A/K/A "KHALFAN KHAMIS," AHMED KHALFAN GHAILANI, A/K/A "FUPI," A/K/A "ABUBAKARY KHALFAN AHMED GHAILANI," A/K/A "ABUBAKAR KHALFAN AHMED," FAHID MOHAMMED ALLY MSALAM, A/K/A "FAHAD M. ALLY," SHEIKH AHMED SALIM SWEDAN, A/K/A "SHEIKH BAHAMADI," A/K/A "AHMED ALLY," DEFENDANTS.
The opinion of the court was delivered by: Hon. Leonard B. Sand, U.S.D.J.
During the guilt phase of this case, the Court took two actions with
respect to venue. First, in a ruling from the bench on April 23, 2001, we
dismissed for lack of venue Count 308 of the Indictment*fn1 which
alleges a violation of 18 U.S.C. § 1001 (a)(2). Second, in our charge
to the jury delivered on May 9-10, 2001, we submitted 18 U.S.C. § 3238
as the sole basis upon which to determine venue for the four conspiracy
counts.*fn2 This Opinion sets forth in detail the Court's reasons for
those two decisions.
I. DISMISSAL OF THE FALSE STATEMENT COUNT*fn3
Count 308 of the Indictment charged Defendant Wadih El Hage with a
violation of 18 U.S.C. § 1001(a)(2)—that is, knowingly and
willfully making a materially false statement to the Federal Bureau of
Investigation. Section 1001(a)(2) provides, in relevant part, that:
[W]hoever, in any matter within the jurisdiction of the executive...
branch of the Government of the United States, knowingly and
willfully... makes any materially false, fictitious, or fraudulent
statement or representation.., shall be fined under this title or
imprisoned not more than 5 years, or both.
The evidence adduced at trial showed that, on August 20, 1998, Special
Agents of the FBI conducted two face-to-face interviews of Mr. El Hage.
The first interview occurred in the afternoon at Mr. El Hage's home in
Arlington, Texas, and the second occurred later that same evening at the
FBI's Dallas field office. (Trial Tr. at 3045-46.) During those
interviews, Mr. El Hage stated that he did not personally know Mohamed
Sadeek Odeh, a co-defendant in this case. Furthermore, when shown two
photographs of Odeh, Mr. El Hage stated that he did not recognize the
depicted individual. (Trial Tr. at 3051-53.) To establish its criminal
allegations under Count 308, the Government offered at trial substantial
testimonial and documentary evidence that Mr. El Hage's statements to the
FBI in Texas were in fact false. See, e.g., 213A-T (translation of a
wiretapped February 1997 telephone conversation between El Hage and
Odeh); see also Gov't Summ. of Proof (Apr. 5, 2001) at 15 (listing the
Government's proof as to Count 308).
On April 12, 2001, during oral argument on defendants' various motions
for judgments of acquittal, counsel for Mr. El Hage challenged venue as
to Count 308. (Trial Tr. at 3927-30.) Briefing papers were thereafter
submitted by the Government on April 16, and by Mr. El Hage on April 19
and 20. Ultimately, in a ruling from the bench on April 23, the Court
granted the motion and dismissed Count 308. (Trial Tr. at 4545-46.)
A. Continuing Offense Theory
The Government argues that venue for Count 308 is properly laid in the
Southern District of New York because the crime of making false
statements can be considered a continuing offense under
18 U.S.C. § 3237.*fn4 While this general assertion may be true in
some circumstances, the specific facts pertaining to Mr. El Hage indicate
that it is inapposite here.
An examination of all the cases cited by the Government reveals why
those courts found the section 1001 violation before them to be
"continuing" for purposes of section 3237 venue. In each of those
decisions, the shared factual characteristic is that there existed a
geographic discontinuity between the defendant's physical making of the
disputed statement, whether oral or written, and the actual receipt of
that statement by the relevant federal authority.
For example, in United States v. Candella 487 F.2d 1223 (2d Cir.
1973), the defendants were convicted in the Southern District of New York
of submitting false affidavits and bills of lading in a matter within the
jurisdiction of the United States Department of Housing and Urban
Development (HUD). The falsified documents were prepared, executed, and
hand-delivered by the defendants to unspecified New York City officials
in Brooklyn. These officials in turn conveyed the documents to the
Manhattan office of the city agency responsible for reviewing and
processing defendants' documents on behalf of HUD. Although the Court of
Appeals agreed that the false statements offenses had begun in the Eastern
District of New York (Brooklyn), it held that the crimes were complete
upon their receipt in the Southern District of New York (Manhattan). See
id. at 1227-28. Tellingly, the Candella court equated the role played by
the unnamed city officials in Brooklyn with that of the post office. See
id. at 1228. Venue in the Southern District of New York was thus found to
be appropriate under section 3237.
All of the other Second Circuit cases relied upon by the Government
similarly involve geographic discontinuities between the making of the
false statement and its receipt by the appropriate federal authority. See
United States v. Fabric Garment Co., 262 F.2d 631 (2d Cir. 1958) (false
forms to the New York Quartermaster Procurement Agency dispatched from
Brooklyn, but received in Manhattan); United States v. Kouzmine.
921 F. Supp. 1131 (S.D.N Y 1996) (false visa application to the
Immigration and Naturalization Service filed in the District of Vermont,
but completed in the Southern District of New York; United States v.
Culoso. 461 F. Supp. 128 (S.D.N.Y. 1978) (false loan application to the
Small Business Administration prepared in the Eastern District of New
York, but submitted in Manhattan); see also United States v. Stephenson,
895 F.2d 867 (2d Cir. 1990) (false statements over the telephone;
defendant in the District of Columbia, but federal agent in New York).
In marked contrast, Mr. El Hage's allegedly false statements to the FBI
were uttered and received wholly inside Texas. Since there was no
geographic (or even temporal) discontinuity, the offense charged in Count
308 began, continued, and was completed in just one federal judicial
district—i.e., the Northern District of Texas. Perhaps most
revealing is the fact that among the four offense elements necessary to
prove Mr. El Hage's section 1001(a)(2) violation, not one involves
evidence arising out of this judicial district.*fn5 We thereby
conclude, on the specific facts of this case as they are applicable to
Count 308, that 18 U.S.C. § 3237 affords no basis for venue in the
Southern District of New York.
B. Effects of the Offense Theory
As a secondary argument, the Government relies on United States v.
Reed 773 F.2d 477 (2d Cir. 1985), for the proposition that the external
effect of Mr. El Hage's criminal conduct under Count 308 independently
gives rise to venue in a district alternative to the one in which he
performed the acts constituting the offense. Even assuming that Mr. El
Hage's false statements to the FBI in Texas somehow impacted the
investigation in the Southern District of New York,*fn6 the Court finds
no basis for applying Reed to the instant case.
Thomas Reed was indicted in the Southern District of New York for,
inter alia, perjury*fn7 and obstruction of justice*fn8 in connection
with deposition testimony given by him in a civil fraud action pending in
the same district. However, because Reed's deposition was taken in San
Francisco, the trial court dismissed the perjury charge on the ground
that "venue for perjury lies only in the district in which the oath was
taken," and dismissed the obstruction of justice charge on the ground
that "venue lies only in the district in which the acts constituting the
obstruction occurred." 773 F.2d at 479.
The Court of Appeals reversed and concluded that "often... sites other
than where the acts occurred [have] equal standing so far as venue is
concerned." Id. at 481. These alternative venues were to be determined by
taking into account three factors other than the locus deliciti: "the
elements and nature of the crime, the locus of the effect of the criminal
conduct, and the suitability of each district for accurate factfinding."
14. As such, with respect to perjury offenses, the Reed court found that
all three factors combined to permit perjury committed in an ancillary
proceeding to be prosecuted in the district in which the parent proceeding
was pending —irrespective of where the ancillary proceeding
transpired. See id. at 482-484. And as for obstructions of justice, the
Court of Appeals decided that the first two of the three factors above
were together sufficient to render venue "proper in the district in which
the proceeding sought to be obstructed is pending even though the
would-be obstructive acts took place elsewhere." Id. at 486.
Contrary to the Government's assertions, there is nothing in Reed which
says that the effects of a crime alone may ever serve as an independent
basis for venue when all other considerations properly point to another
judicial district. To begin, the holding in Reed did not premise
alternative venue on just a single factor in opposition to the locus
deliciti. The court instead looked, as discussed supra to a combination
of at least two or more of the three enumerated factors.
Second, although the Reed court opined that "places that suffer the
effects of a crime are entitled to consideration for venue purposes,"
id. at 482, all of the supporting cases cited by the court—in
addition to the very facts of Reed involve criminal statutes wherein a
specific offense element is itself defined in terms of the crime's
effect. See Id. (obstruction of justice: to influence, intimidate, or
impede the due administration of justice; and perjury: false material
declaration in any proceeding before or ancillary to any court or grand
jury); United States v. Billups, 692 F.2d 320 (4th Cir. 1982)
(Taft-Hartley Act: effect on interstate commerce); United States v.
Craig, 573 F.2d 513 (7th Cir. 1978) (Hobbs Act: effect on interstate
commerce); United States v. Martin, 704 F.2d 515 (11th Cir. 1983)
(bail-jumping: violation of a court's order to surrender).*fn9 The
elements of 18 U.S.C. § 1001(a)(2), by contrast, do not include any
requirement that there be proof of the false statement's effect, if any.
Indeed, the standard charge
concerning section 1001 explicitly cautions the jury that "it is not
necessary for the government to prove that the government agency was, in
fact, misled as a result of the defendant's action." 2 Leonard B. Sand et
al., Modern Federal Jury Instructions ¶ 36.01, Instr. 36-2.
Third, a recent venue decision by the Supreme Court runs counter to the
Government's proposed interpretation of Reed. In United States v.
Cabrales, 524 U.S. 1 (1998), the defendant was prosecuted in the Western
District of Missouri for money laundering.*fn10 The trial court
dismissed the money laundering allegations because Cabrales performed all
the illegal transactions while inside Florida. The sole connection to
Missouri stemmed from the fact that the laundered money derived from drug
activity taking place in Missouri. A unanimous Supreme Court affirmed on
the primary ground that "the crimes described in [the dismissed]
Counts... are defined in statutory proscriptions that interdict only the
financial transactions (acts located entirely in Florida), not the
anterior criminal conduct that yielded the funds allegedly laundered."
Id. at *7 (internal citations omitted). Furthermore, the Court rejected
the government's contention that "[the government's] convenience, and the
interests of the [Missouri] community victimized by drug dealers, merit
consideration." Id. at 9. Unless Cabrales was actually charged with
criminal activity in Missouri, her prosecution in that venue instead of
Florida was improper, regardless of any external factor.*fn11
Fourth, the only other court actually to consider the discrete question
before us—that is, whether a crime's effect alone may give rise to
venue in a district alternative to the one in which the acts constituting
the crime occurred*fn12 — has held that "[v]enue will also lie
where the effects of the defendant's conduct are felt, but only when
Congress has defined the essential conduct elements in terms of those
effects." United States v. Bowens, 224 F.3d 302, 314 (4th Cir. 2000)
(emphasis added), cert. denied. 121 S.Ct. 1408 (2001). The Fourth Circuit
found its conclusion to be one that logically flowed from Cabrales. See
Bowens. 224 F.3d at 309-312. Applying the above principle, the Fourth
Circuit vacated the defendant's convictions in the Eastern-District of
Virginia for his acts of harboring a fugitive*fn13 from Virginia, since
such harboring was done only in South Carolina. The Fourth Circuit
believed that any effect on Virginia's "due administration of justice"
implicated at most only a non-essential offense element of the relevant
statute. Id. at 313. As such, "the district court erred in considering
the effect of Bowens' harboring offense in determining venue." Id. at
Two Second Circuit opinions issued during the last year echo the
concerns underlying Bowens. See United States v. Kim, 246 F.3d 186 (2d
Cir. Apr. 10, 2001); United States v. Saavedra, 223 F.3d 85 (2d Cir.
Aug. 17, 2000), cert. denied sub nom., Rodriguez v. United States, 121
S.Ct. 1612 (Apr. 16, 2001). These two cases establish the rule that venue
may be proper in a district other than the locus deliciti so long as
venue in the alternative district is based on an "element essential to
the conduct the statute criminalizes" Kim 246 F.3d at 193 (emphasis in
original) (quoting Saavedra, 223 F.3d at 92). Thus, in both Kim and
Saavedra, the Court of Appeals sustained venue in the Southern District
of New York because there existed some essential offense element which
required proof arising out of this district. See Kim, 246 F.3d at 193
("[W]e believe that the wire communications to and from Manhattan were
essential to the continuing offense of causing fraudulent wires to be
transmitted."); Saavedra, 223 F.3d at 92 ("The racketeering element in
this case is not a mere "circumstance' of the § 1959 offense —
it is an essential element of the crime.").
The foregoing review of the authorities convinces us that Reed does
not—indeed, could not—stand for the proposition that venue
may properly be based where solely the effects of the crime are located.
With respect to Mr. El Hage and his alleged false statements under Count
308, the laying of venue in the Southern District of New York is
unsupported by the section 3237 venue provision, or the locus deliciti,
or any of the four offense elements of 18 U.S.C. § 1001(a)(2). Any
consideration of the putative external effects of Mr. El Hage's Texas
statements would require the Court to base venue on just one factor and
on a factor which is not even an element of the relevant criminal
In sum, we believed that neither the Government's continuing offense
theory nor its effects of the offense theory was appropriate, and
accordingly we granted Mr. El Hage's motion to dismiss Count 308 of the
II. SECTION 3238 VENUE AS TO THE CONSPIRACY COUNTS*fn14
In its requests to charge concerning the conspiracy counts of the
Indictment, the Government proposed that the jury be instructed that
proper venue as to each count could be found on one of either two
permissible bases: (1) that at least one of the defendants in each count
was first brought to or arrested in the Southern District of New York,
see 18 U.S.C. § 3238;*fn15 or (2) that an overt act in furtherance
of the conspiracy was committed in this district by one of the alleged
co-conspirators, see United States v. Naranjo 14 F.3d 145, 147 (2d
Cir.), cert. denied. 511 U.S. 1095 (1994). None of the Defendants
objected to the Govemment's request.
Nevertheless, the Court consciously drafted a charge that submitted to
the jury only the section 3238 basis for venue as to the conspiracy
counts. That draft was then circulated among counsel at oral argument on
defendants' various motions for judgments of acquittal on April 12,
2001—at which time we alerted the parties of our intention to
depart from the Government's proposed venue charge and that the
alteration was reflected in the drafts they had just received. (Trial
Tr. at 3902.) The first charging conference was subsequently held on
16. Neither at that time nor during any of the numerous other conferences
after April 16 in which our proposed charge was discussed did any party
object to the Court's suggested venue instruction, whether in open court
or in writing. Thus, as part of the charge that was ultimately delivered
to the jury on May 9-10, we submitted section 3238 as the sole basis upon
which to determine venue for the conspiracy counts.
We provide herein the considerations which informed our charging
decision.*fn16 First, section 3238 is an appropriate basis for venue so
long as the international conspiracy offense in question began outside
the United States, irrespective of the fact that a few of the alleged
overt acts of the conspiracy were later committed inside the United
States. See 18 U.S.C. § 3238; United States v. Levy Auto Parts,
787 F.2d 946, 950-952 (4th Cir.) (finding venue appropriate under §
3238 when conspiracy was "essentially foreign," even when some overt acts
occurred inside United States), cert. denied, 479 U.S. 828 (1986); United
States v. Erwin, 602 F.2d 1183, 1185 (5th Cir. 1979) (per curiam) ("That
venue may also be appropriate in another district will not divest venue
properly established under § 3238."), cert. denied, 444 U.S. 1071
(1980); United States v. Williams, 589 F.2d 210, 213 (5th Cir. 1979)
("The venue statutes are not mutually exclusive, and a suggestion that
venue is proper under § 3237(a) will not serve to divest venue from
another judicial district if venue is proper in that district under
§ 3238."), adopted in pertinent part, 617 F.2d 1063, 1071 (5th Cir.
1980) (en banc); 2 Charles Alan Wright, Federal Practice and Procedure
§ 304 (3d ed. 2000) ("[§ 3238] is a continuing-offense statute.
If an offense is begun or committed... out of the jurisdiction of any
particular state or district, venue is proper in which the offender is
arrested or first brought even though parts of the crime were committed
in some other district so that venue might have been proper there."); see
also United States v. Jensen. 93 F.3d 667, 671 (9th Cir. 1996)
(Fletcher, J., concurring) ("That the defendants also operated their
vessels within the District of Alaska does not remove section 3238's
applicability—the alleged offense was still "begun or committed'
upon the high seas during the period charged.") (citing 8A James A. Moore
et al., Moore's Federal Practice ¶ 18.06 (2d ed. 1995))
(additional citations omitted).*fn17 Here, the Indictment
alleges—and the evidence at trial has convincingly shown—that
the conspiracies originated overseas.
Second, there was in our estimation an overriding need to simplify the
jury's deliberative task in this incredibly complex prosecution. Among
the 175 overt acts originally alleged in the 308-count Indictment, only
four concerned activity occurring in the Southern District of New
York—and thus only four overt acts could properly be used by the
jury to find venue in this district.*fn18 But of these four overt acts,
three were similarly the subject of twenty-one substantive offense
counts against Defendant Wadih El Hage.*fn19 There thus existed a
significant danger of confusion to the jury and prejudice to the
defendants. For example: On the one hand, the jury would be told that
Mr. El Hage could be found guilty of Count 287 if and only if his perjury
to the grand jury was proven beyond a reasonable doubt; on the other
hand, the jury would also be told that venue in this district as to the
conspiracy counts could be based upon proof, merely by a preponderance of
the evidence, that Mr. El Hage committed that same perjury as a member
and in furtherance of the charged conspiracies. The obvious risk of
unfair mistake and prejudicial spillover—coupled with, to date, the
lack of any opposition by the parties— convinced us to take the
approach adopted in our final venue charge to the jury.*fn20