The opinion of the court was delivered by: John Koeltl, District Judge
The defendants in this case — Ahmed Abdel Sattar, a/k/a "Abu Omar," a/k/a "Dr. Ahmed" ("Sattar"), Yassir Al-Sirri, a/k/a "Abu Ammar" ("Al-Sirri"), Lynne Stewart ("Stewart") and Mohammed Yousry ("Yousry") — were charged in a five-count indictment on April 8, 2002 ("Indictment"). The First Count of the Indictment charges Sattar, Al-Sirri, Stewart and Yousry, together with others known and unknown with conspiring to provide material support and resources to a foreign terrorist organization ("FTO") in violation of 18 U.S.C. § 2339B. Count Two charges each of the defendants with providing and attempting to provide material support and resources to an FTO in violation of 18 U.S.C. § 2339B and 2. Count Three charges Sattar and Al-Sirri with soliciting persons to engage in crimes of violence in violation of 18 U.S.C. § 373. Count Four charges Sattar, Stewart and Yousry with conspiring to defraud the United States in violation of 18 U.S.C. § 371. Finally, Count Five charges Stewart with making false statements in violation of 18 U.S.C. § 1001 and 2. Defendants Sattar, Stewart and Yousry now move to dismiss the Indictment on various grounds.*fn1
The Indictment alleges the following facts. At all relevant times, the Islamic Group, a/k/a "Gama'a al-Islamiyya," a/k/a/ "IG," a/k/a "al-Gama'at," a/k/a "Islamic Gama'at," a/k/a/ "Egyptian al-Gama'at al Islamiyya," ("IG"), existed as an international terrorist group dedicated to opposing nations, governments, institutions, and individuals that did not share IG's radical interpretation of Islamic law. (Ind. ¶ 1.) IG considered such parties "infidels" and interpreted the concept of "jihad" as waging opposition against infidels by whatever means necessary, including force and violence. (Ind. ¶ 1.) IG regarded the United States as an infidel and viewed the United States as providing essential support to other infidel governments and institutions, particularly Israel and Egypt. (Ind. ¶ 2.) IG also opposed the United States because the United States had taken action to thwart IG, including by the arrest, conviction, and continued confinement of its spiritual leader Omar Ahmad Ali Abdel Rahman, a/k/a "Omar Ahmed Ali," a/k/a "Omar Abdel Al-Rahman," a/k/a "The Sheikh," a/k/a "Sheikh Omar" ("Sheikh Abdel Rahman"). (Ind. ¶ 2.)
IG has allegedly operated in the United States from the early 1990s until the date of the filing of the Indictment particularly in the New York metropolitan area. (Ind. ¶ 12.) According to the Indictment, IG's objectives in the United States include (1) the establishment of the United States as a staging ground for violent acts against targets in the United States and abroad; (2) the recruitment and training of members; and (3) fundraising for jihad actions in the United States and overseas. (Ind. ¶ 12.) Since Sheikh Abdel Rahman's imprisonment, the Indictment alleges that IG members in the United States have also functioned as a worldwide communications hub for the group, in part by facilitating communications between IG leaders and Sheik Abdel Rahman. (Ind. ¶ 12.) IG was designated as a foreign terrorist organization by the Secretary of State on October 8, 1997 pursuant to Title 8, United States Code, Section 1189 and was redesignated as such on October 8, 1999 and again on October 5, 2001. (Ind. ¶ 18.)
The Indictment alleges that Sheikh Abdel Rahman has been one of IG's principal leaders and a high-ranking member of jihad organizations based in Egypt and elsewhere since the early 1990s. (Ind. ¶ 4.) Sheikh Abdel Rahman allegedly became an "emir" or leader of IG in the United States. (Ind. ¶ 4.) Under his leadership, IG subordinates carried out the details of specific jihad operations while shielding Sheikh Abdel Rahman from prosecution. (Ind. ¶ 4.) The Indictment charges that Sheik Abdel Rahman, among other things, provided guidance about what actions, including acts of terrorism, were permissible or forbidden under his interpretation of Islamic law; gave strategic advice on how to achieve IG's goals; recruited persons and solicited them to commit violent jihad acts; and sought to protect IG from infiltration by law enforcement. (Ind. ¶ 4.)
Sheikh Abdel Rahman was convicted in October 1995 of engaging in a seditious conspiracy to wage a war of urban terrorism against the United States, including the 1993 World Trade Center bombing and a plot to bomb New York City landmarks. (Ind. ¶ 5.) He was also found guilty of soliciting crimes of violence against the United States military and Egyptian President Hosni Mubarak. (Ind. ¶ 5.) In January 1996 Sheik Abdel Rahman was sentenced to life imprisonment plus 65 years. (Ind. ¶ 5.) His conviction was affirmed on appeal and, on January 10, 2000, the United States Supreme Court denied his petition for a writ of certiorari. (Ind. ¶ 5.)
Sheikh Abdel Rahman has been incarcerated at the Federal Medical Center in Rochester, Minnesota since in or about 1997. (Ind. ¶ 5.) IG has allegedly taken repeated steps to win Sheikh Abdel Rahman's release. (Ind. ¶¶ 8-11.) Such steps include the issuance of a statement in response to Sheikh Abdel Rahman's life sentence that warned that "[a]ll American interests will be legitimate targets for our struggle until the release of Sheikh Omar Abdel Rahman and his brothers" and that IG "swears by God to its irreversible vow to take an eye for an eye." (Ind. ¶ 8) Also, on or about November 17, 1997, six assassins shot and stabbed a group of tourists at an archeological site in Luxor, Egypt killing fifty-eight tourists and four Egyptians. (Ind. ¶ 9.) Before exiting, the Indictment charges, the assassins scattered leaflets calling for Sheikh Abdel Rahman's release and inserted one such leaflet into the slit torso of one victim. (Ind. ¶ 9.)
The Bureau of Prisons, at the direction of the Attorney General, imposed Special Administrative Measures ("SAMs") upon Sheikh Abdel Rahman. (Ind. ¶ 6.) The SAMs limited certain privileges in order to protect "`persons against the risk of death or serious bodily injury' that might otherwise result." (Ind. ¶ 6.) The limitations included restrictions on Sheikh Abdel Rahman's access to the mail, the telephone, and visitors, and prohibited him from speaking with the media. (Ind. ¶ 6.) All Counsel for Sheik Abdel Rahman were obligated to sign an affirmation acknowledging that they and their staff would abide fully by the SAMs before being allowed access to their client. (Ind. ¶ 6.) In the affirmation, counsel agreed to "only be accompanied by translators for the purpose of communicating with the inmate Abdel Rahman concerning legal matters." (Ind. ¶ 7.) Since at least in or about May 1998, counsel agreed not to use "meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman." (Ind. ¶ 7.)
Defendant Stewart was Sheikh Abdel Rahman's counsel during his 1995 criminal trial and has continued to represent him since his conviction. (Ind. ¶ 16.) The Indictment alleges that over the past several years, Stewart has facilitated and concealed messages between her client and IG leaders around the world in violation of the SAMs limiting Sheik Abdel Rahman's communications from prison. (Ind. ¶ 16.) During a May 2000 visit to Sheikh Abdel Rahman in prison, Stewart allegedly allowed defendant Yousry, who acted as the Arabic interpreter between Sheikh Abdel Rahman and his attorneys, to read letters from defendant Sattar and others regarding IG matters and to discuss with her client whether IG should continue to comply with a cease-fire that had been supported by factions within IG since in or about 1998. (Ind. ¶¶ 15-16.) According to the Indictment, Yousry provided material support and resources to IG by covertly passing messages between IG representatives and Sheik Abdel Rahman regarding IG's activities. (Ind. ¶ 15.) The Indictment alleges that Stewart took affirmative steps to conceal the May 2000 discussions from prison guards and subsequently, in violation of the SAMs, announced to the media that Sheikh Abdel Rahman had withdrawn his support for the cease-fire. (Ind. ¶ 16.) The Indictment charges that in or about May 2000 Stewart submitted an affirmation to the United States Attorney's Office for the Southern District of New York (the "May Affirmation") that falsely stated, among other things, that she agreed to abide by the terms of the SAMs applicable to Sheikh Abdel Rahman and that she would not use her meetings, correspondence or phone calls with Sheikh Abdel Rahman to pass messages between Sheikh Abdel Rahman and third parties including but not limited to the media. (Ind. ¶ 30.)
The Indictment also charges that Sattar is an active IG leader who serves as a vital link between Sheik Abdel Rahman and the worldwide IG membership. (Ind. ¶ 13.) The Indictment contends that Sattar operates as a communications center for IG from New York City through frequent telephonic contact with IG leaders around the world. (Ind. ¶ 13.) More specifically, the Indictment alleges that Sattar provides material support and resources to IG by relaying messages between IG leaders abroad and Sheik Abdel Rahman through visits and phone calls by Sheikh Abdel Rahman's interpreter and attorneys; arranging and participating in three-way phone calls connecting IG leaders around the world to facilitate discussion and coordination of IG activities; passing messages and information from one IG leader and to other group leaders and members; and by providing financial support. (Ind. ¶ 13.)
Defendant Al-Sirri was arrested in the United Kingdom in October 2001 until which time, the Indictment alleges, he was the head of the London-based Islamic Observation Center. (Ind. ¶ 14.) The Indictment charges that Al-Sirri, like Sattar, facilitated IG communications worldwide and provided material support and resources, including financial support, to the FTO. (Ind. ¶ 14.) Al-Sirri was allegedly in frequent telephone contact with Sattar and other IG leaders regarding the dissemination of IG statements on various issues. (Ind. ¶ 14.)
The defendants make the following motions.*fn2 Sattar and Stewart move to dismiss Counts One and Two on the ground that 18 U.S.C. § 2339B is unconstitutionally vague and overbroad.*fn3 Sattar and Stewart also argue that these counts should be dismissed because the designation of IG as an FTO was unconstitutional and provides no way for a criminal defendant to challenge that designation. Stewart moves to dismiss all counts against her on the ground that the Government lacks authority to enforce the SAMs underlying her prosecution. Sattar moves to dismiss Count Three for failure to allege the essential elements of the offense charged with sufficient factual detail. St. wart moves to dismiss Count Five of the Indictment because she contends that the May Affirmation is an insufficient basis for a false-statement prosecution pursuant to 18 U.S.C. § 1001. Stewart and Sattar both seek severance and bills of particulars. Stewart moves to dismiss Counts One, Two, and Four as duplicitous. And finally, Stewart seeks an evidentiary hearing to determine whether the Government entered into a non-prosecution agreement that would preclude her prosecution under the Indictment.
Title 18, United States Code, Section 2339B provides, in relevant part:
Whoever, within the United States or subject to
the jurisdiction of the United States, knowingly
provides material support or resources to a foreign
terrorist organization, or attempts or conspires to
do so, shall be [guilty of a crime].
18 U.S.C. § 2339B(a)(1). At all relevant times, "material support or resources" was defined as:
currency or other financial securities, financial
services, lodging, training, safehouses, false
documentation or identification, communications
equipment, facilities, weapons, lethal substances,
explosives, personnel, transportation, and other
physical assets, except medicine or religious
18 U.S.C. § 2339A(b) & 2339B(g)(4).*fn4
A foreign "terrorist organization" is defined as "an organization designated" under 8 U.S.C. § 1189 as a foreign "terrorist organization." 18 U.S.C. § 2339B(g)(6).
Section 2339B, which is alleged to have been violated in this case, requires only that a person "knowingly" "provides" "material support or resources" to a "foreign terrorist organization." Section 2339A criminalizes the provision of "material support or resources" "knowing or intending that they are used in preparation for, or in carrying out," a violation of various criminal statutes. No such specific criminal intent provision is included in § 2339B. Section 2339A defines "material support or resources" as indicated above. That definition includes no amount or other measure of magnitude and is carried over into § 2339B.
The Indictment alleges that the defendants conspired to provide and provided communications equipment, personnel, currency, financial securities and financial services (currency, financial securities, and financial services hereinafter "currency"), and transportation to IG. (Ind. ¶¶ 20(a)-(d), 23.)
The defendants argue that 18 U.S.C. § 2339B is unconstitutionally vague specifically with regard to the statute's prohibition on "providing" material support or resources in the form of "communications equipment" and "personnel." With respect to communications equipment, the Indictment alleges, among other things, that "the defendants and the unindicted co-conspirators provided communications equipment and other physical assets, including telephones, computers and telefax machines, owned, operated and possessed by themselves and others, to IG, in order to transmit, pass and disseminate messages, communications and information between and among IG leaders and members in the United States and elsewhere around the world. . . ." (Ind. ¶ 20(a).) The Government has argued that the defendants provided a communications pipeline by which they transmitted messages from Sheikh Abdel Rahman in prison to IG leaders and members throughout the world. Among the specific instances of the use of communications equipment, the Indictment points to the fact that Sattar had telephone conversations with IG leaders in which he related Sheikh Abdel Rahman's instructions to IG leaders and Stewart released Sheikh Abdel Rahman's statement to the press in which Sheikh Abdel Rahman withdrew his support from the then-existing cease-fire. (Ind. ¶¶ 21(j)-(k).) With respect to the provision of personnel, the Indictment alleges that "the defendants and the unindicted co-conspirators provided personnel, including themselves, to IG, in order to assist IG leaders and members in the United States and elsewhere around the world, in communicating with each other . . ." (Ind. ¶ 20(b).) The defendants argue that the statute fails to provide fair notice of what acts are prohibited by the prohibition against the provision of "communications equipment" and "personnel."
A criminal statute implicating First Amendment rights "must `define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" United States v. Rahman, 189 F.3d 88, 116 (2d Cir. 1999) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). "In short, the statute must give notice of the forbidden conduct and set boundaries to prosecutorial discretion." United States v. Handakas, 286 F.3d 92, 101 (2d Cir. 2002). When analyzing a vagueness challenge, "[a] court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it." Chatin v. Coombe, 186 F.3d 82, 87 (2d Cir. 1999) (quoting United States v. Strauss, 99 F.2d 692, 697 (2d Cir. 1993)); see also Handakas, 286 F.3d at 111 ("The principle that a statute must provide both `notice' and `explicit standards' to survive an `as-applied' constitutional challenge based on vagueness is well established."). A "void for vagueness" challenge does not necessarily mean that the statute could not be applied in some cases but rather that, as applied to the conduct at issue in the criminal case, a reasonable person would not have notice that the conduct was unlawful and there are no explicit standards to determine that the specific conduct was unlawful. See Handakas, 286 F.3d at 111-12; Chatin, 186 F.3d at 87.
First, with regard to the "provision" of "communications equipment," Sattar and Stewart argue that the Indictment charges them with merely talking and that the acts alleged in the Indictment constitute nothing more than using communications equipment rather than providing such equipment to IG. For example, the Indictment charges Sattar with participating in and arranging numerous telephone calls between IG leaders in which IG business was discussed, including the need for "a second Luxor." (Ind. ¶ 21(w).) The Indictment describes numerous other telephone calls in which Sattar participated. (See, e.g., Ind. ¶¶ 21(cc)-(gg).) Stewart is charged with, among other things, providing communications equipment to IG by announcing Sheikh Abdel Rahman's withdrawal of support for the cease-fire in Egypt and thereby making the statements of the otherwise isolated leader available to the media. (Ind. ¶ 21(k).)
The defendants look to the legislative history of the statute as evidence that Congress did not intend § 2339B to criminalize the mere use of communications equipment, rather than the actual giving of such equipment to IG. The legislative history states:
The ban does not restrict an organization's or
an individual's ability to freely express a
particular ideology or political philosophy. Those
inside the United States will continue to be free
to advocate, think and profess the attitudes and
philosophies of the foreign organizations. They
are simply not allowed to send material support or
resources to those groups, or their subsidiary
H.R. Rep. 104-383 at 45 (emphasis added). Thus, the defendants argue, simply making a phone call or similarly communicating one's thoughts does not fall within the ambit of § 2339B.
The defendants are correct and by criminalizing the mere use of phones and other means of communication the statute provides neither notice nor standards for its application such that it is unconstitutionally vague as applied. The Government argued in its brief that the defendants are charged not merely with using their own phones or other communications equipment but with actively making such equipment available to IG and thus "providing" IG with communications resources that would otherwise be unavailable to the FTO. That argument, however, simply ignores the reality of the facts charged in the Indictment in which various defendants are accused of having participated in the use of communications equipment. The Government subsequently changed course and stated at oral argument that the mere use of one's telephone constitutes criminal behavior under the statute and that, in fact, "use equals provision." (Transcript of Oral Argument dated June 13, 2002 ("Hearing Tr.") at 53, 65.) The Government also argued that using the conference call feature on a person's phone in furtherance of an FTO was prohibited. (Id. at 65.)
Such changes in the Government's interpretation of § 2339B demonstrate why the provision of communications equipment as charged in the Indictment is unconstitutionally vague: a criminal defendant simply could not be expected to know that the conduct alleged was prohibited by the statute. See Handakas, 286 F.3d at 104 ("a penal statute must speak for itself so that a lay person can understand the prohibition"). The defendants were not put on notice that merely using communications equipment in furtherance of an FTO's goals constituted criminal conduct. Moreover, the Government's evolving definition of what it means to provide communications equipment to an FTO in violation of § 2339B reveals a lack of prosecutorial standards that would "permit `a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)); accord Handakas, 286 F.3d at 107. For these reasons, § 2339B is void for vagueness as applied to the allegations in the Indictment.
Second, the defendants argue, § 2339B is unconstitutionally vague as applied to the allegations in the Indictment relating to the "provision" of "personnel." The defendants urge the Court to follow the Ninth Circuit Court of Appeals' decision in Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th Cir. 2000), which found that "[i]t is easy to see how someone could be unsure about what [§ 2339B] prohibits with the use of the term `personnel,' as it blurs the line between protected expression and unprotected conduct." The Court of Appeals thus affirmed the district court's finding that the use of the term "personnel" in § 2339B was unconstitutionally vague.
The Government relies on United States v. Lindh, 212 F. Supp.2d 541, 574 (E.D. Va. 2002), which rejected Humanitarian Law Project and found that the alleged plain meaning of personnel — "an employment or employment-like relationship between the persons in question and the terrorist organization" — gave fair notice of what conduct is prohibited under the statute and thus was not unconstitutionally vague. In that case, the court rejected a vagueness challenge in the context of a person who joined certain foreign terrorist organizations in combat against American forces. In defining the reach of the term personnel, the court found that it was not vague because it applied to "employees" or "employee-like operatives" or "quasi-employees" who work under the "direction and control" of the FTO. Lindh, 212 F. Supp.2d at 572-73. Whatever the merits of Lindh a applied to a person who provides himself or herself as a soldier in the army of an FTO, the standards set out there are not found in the statute, do not respond to the concerns of the Court of Appeals in Humanitarian Law Project, and do not provide standards to save the "provision" of "personnel" from being unconstitutionally vague as applied to the facts alleged in the Indictment. The fact that the "hard core" conduct in Lindh fell within the plain meaning of providing personnel yields no standards that can be applied to the conduct by alleged "quasi-employees" in this case. Cf. Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) (". . . even if the outermost boundaries of [the statute] may be imprecise, any such uncertainty has little relevance here, where appellants' conduct falls squarely within the `hard core' of the statute's proscriptions . . .")
It is not clear from § 2339B what behavior constitutes an impermissible provision of personnel to an FTO. Indeed, as the Ninth Circuit Court of Appeals stated in Humanitarian Law Project, "Someone who advocates the cause of the [FTO] could be seen as supplying them with personnel." Humanitarian Law Project, 205 F.3d at 1137. The Government accuses Stewart of providing personnel, including herself, to IG. In so doing, however, the Government fails to explain how a lawyer, acting as an agent of her client, an alleged leader of an FTO, could avoid being subject to criminal prosecution as a "quasi-employee" allegedly covered by the statute. At the argument on the motions, the Government expressed some uncertainty as to whether a lawyer for an FTO would be providing personnel to the FTO before the Government suggested that the answer may depend on whether the lawyer was "house counsel" or an independent counsel — distinctions not found in the statute. (Hearing Tr. at 61-62.)
The Government concedes that the statute does not prohibit mere membership in an FTO, and indeed mere membership could not constitutionally be prohibited without a requirement that the Government prove the defendants' specific intent to further the FTO's unlawful ends. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982) ("For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims."); see also Boim v. Quranic Literacy Inst. and Holy Land Fnd. for Relief and Dev., 291 F.3d 1000, 1021-24 (7th Cir. 2002). The Government attempts to distinguish the provision of "personnel" by arguing that it applies only to providing "employees" or "quasi-employees" and those acting under the "direction and control" of the FTO. But the terms "quasi-employee" or "employee-like operative" or "acting at the direction and control of the organization" are terms that are nowhere found in the statute or reasonably inferable from it.
Moreover, these terms and concepts applied to the prohibited provision of personnel provide no notice to persons of ordinary intelligence and leave the standards for enforcement to be developed by the Government. When asked at oral argument how to distinguish being a member of an organization from being a quasi-employee, the Government initially responded "You know it when you see it." (Hearing Tr. at 58.) While such a standard was once an acceptable way for a Supreme Court Justice to identify obscenity, see Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring), it is an insufficient guide by which a person can predict the legality of that person's conduct. See Handakas, 286 F.3d at 104 ("It is not enough to say that judges can intuit the scope of the prohibition if [the defendants] could not.")
Moreover, the Government continued to provide an evolving definition of "personnel" to the Court following oral argument on this motion. Added now are "those acting as full-time or part-time employees or otherwise taking orders from the entity" who are therefore under the FTO's "direction or control." (Gov. Letter dated June 27, 2003 at 2 n. 1 ("Gov. June 27 Letter") (quoting the United States Attorneys' Manual definition of "personnel").)
The Government argues, moreover, that the Court should construe the statute to avoid constitutional questions. However, the Court "is not authorized to rewrite the law so it will pass constitutional muster." Humanitarian Law Project, 205 F.3d at 1137-38 (rejecting Government's suggestion to construe "personnel" as used in § 2339B as "under the direction or control" of an FTO). The Government also suggested at oral argument that perhaps a heightened scienter standard should be read into the statute, in some circumstances, in defining the provision of personnel. (Hearing Tr. at 62-64.) But that specific intent is not contained in the statute and thus could not give notice to persons about their allegedly prohibited conduct. Moreover, the Government subsequently withdrew its suggestion after oral argument. (Gov. June 27 Letter at 3 n. 3.) The statute's vagueness as applied to the allegations in the Indictment concerning the provision of personnel is a fatal flaw that the Court cannot cure by reading into the statute a stricter definition of the material support provision than the statute itself provides. See Handakas, 286 F.3d at 109-110 ("If the words of a criminal statute insufficiently define the offense, it is no part of deference to Congress for us to intuit or invent the crime.").
The Government now contends that if the Court finds that the terms "provision" of "communications equipment" or "provision" of "personnel" are unconstitutionally vague as applied to the defendants, the Court need not dismiss Counts One and Two f the Indictment. The Government argues that because the Grand Jury used the conjunctive form in charging the defendants with conspiring to provide and providing material support or resources in the form of communications equipment, personnel, currency and transportation, the necessary implication is that the Grand Jury would have returned the Indictment had the charges relating to personnel and communications equipment not been included. The Government relies on cases such as United States v. Mastelotto, 717 F.2d 1238, 1249 n. 10 (9th Cir. 1983), in which the Ninth Circuit Court of Appeals explained: ". . . the failure of the jury instruction to require the jury to find the existence of a particular allegation of the indictment did not prejudice the defendant, since it was certain that, even without the deleted allegation, the grand jury would have indicted on the charge at issue." See also United States v. Hobson, 519 F.2d 765, 774 (9th Cir. 1975). More recently, the Supreme Court made it clear that "[a]s long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime." United States v. Miller, 471 U.S. 130, 136 (1985). In Miller, the Supreme Court found that it was error to reverse a conviction where the trial court had dismissed one of three counts and the defendant was convicted of the remaining two counts even though the trial proof supported only a significantly narrower and more limited, though included, fraudulent scheme.
In this case, however, there is no reasonable way to redact the first two counts of the Indictment to excise the allegations relating to the conspiracy and related substantive offense of providing communications equipment and personnel to an FTO which are unconstitutionally vague as applied to the circumstances of this case. The Government has consistently presented its theory of the case in such a way that the allegations regarding the provision of personnel and communications equipment are not only central to the charges in Counts One and Two but also dwarf the allegations with respect to the provision of transportation and currency. The Government has painted a picture in the Indictment, at oral argument, and in its briefs, which the Government has said can be taken as a bill of particulars, of a communications pipeline staffed by the defendants that enabled Sheikh Abdel Rahman and other IG leaders around the world to communicate with one another. Allegations about the provision of currency and transportation play only a minuscule role in that plot. The number of overt acts relating to the provision of travel or currency is relatively small and none of them explicitly refer to Stewart or Yousry. Further, although Stewart and Yousry are charged in Count Two with substantive violations of § 2339B, and aiding and abetting, that Count provides no details but refers to the allegations in Count One, and there are no allegations in Count One that Stewart or Yousry provided currency or transportation to an FTO or aided and abetted such provision.
In this case, there is no reasonable way to redact the Indictment and charge only a conspiracy to provide currency and transportation or the related substantive offense. This is simply not a case where the elimination of counts or paragraphs can be done in such a way as to leave Counts One and Two of the Indictment as returned by the Grand Jury fundamentally intact. Cf. Miller, 471 U.S. at 145 (one count struck from indictment did not broaden the indictment or violate defendant's right to be tried pursuant to indictment returned by grand jury); United States v. Morrow, 177 F.3d 272, 297 (5th Cir. 1999) (deletion of alleged act did not modify essential elements of charged offense or broaden indictment and therefore "amendment" ...