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 ...
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