Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. SATTAR

April 19, 2004.

UNITED STATES OF AMERICA -against- AHMED ABDEL SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Atoned," LYNNE STEWART, and MOHAMMED YOUSRY, Defendants


The opinion of the court was delivered by: JOHN KOELTL, District Judge

OPINION and ORDER

The defendants — Ahmed Abdel Sattar ("Sattar"), Lynne Stewart ("Stewart"), and Mohammed Yousry ("Yousry") — were charged in a seven-count superseding indictment ("S1 Indictment") filed on November 19, 2003. Count One of the S1 Indictment charges Sattar, Stewart, and Yousry with conspiring to defraud the United States in violation of 18 U.S.C. § 371. Count Two charges Sattar with conspiring to murder and kidnap persons in a foreign country in violation of 18 U.S.C. § 956(a)(1) and (a)(2)(A). Count Three charges Sattar with soliciting persons to engage in crimes of violence in violation of 18 U.S.C. § 373. Count Four charges Stewart and Yousry with conspiring, in violation of 18 U.S.C. § 371, to provide and conceal material support to be used in preparation for, and in carrying out, the conspiracy alleged in Count Two. Count Five charges Stewart and Yousry with a substantive count of providing and concealing material support to the Count Two conspiracy, in violation of 18 U.S.C. § 2339A and 2. Counts Six and Seven charge Stewart with making false statements in violation 18 U.S.C. § 1001.

The S1 Indictment supersedes a five-count indictment filed on April 8, 2002 ("original indictment"). Count One of the original indictment charged Sattar, Stewart, Yousry, and Yassir Al-Sirri, a defendant not charged in the S1 Indictment, with conspiring to provide material support and resources to a foreign terrorist organization ("FTO") in violation of 18 U.S.C. § 2339B. Count Two charged the same 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 charged Sattar and Al-Sirri with soliciting persons to engage in crimes of violence in violation of 18 U.S.C. § 373. Count Four charged Sattar, Stewart, and Yousry with conspiring to defraud the United States in violation of 18 U.S.C. § 371. And Count Five charged Stewart with making false statements in violation of 18 U.S.C. § 1001 and 2. United States v. Sattar, 272 F. Supp.2d 348, 352-53 (S.D.N.Y. 2003).

  Sattar, Stewart, and Yousry moved to dismiss the original indictment on various grounds. The defendants argued, among other things, that Counts One and Two were unconstitutionally vague as applied to the conduct alleged against them in the original indictment. Counts One and Two charged the defendants with conspiring to provide, and providing, material support and resources to the Islamic Group, an organization led by Sheikh Abdel Rahman that had been designated an FTO by the Secretary of State.*fn1 Section 2339B of Title 18 incorporates the definition of "material support or resources" from § 2339A, and the definition includes, among other things, "personnel" and "communications equipment." Sattar, 272 F. Supp.2d at 356. In an Opinion and Order dated July 22, 2003, the Court granted the defendants' motion to dismiss Counts One and Two of the original indictment as void for vagueness as applied to the allegations in the original indictment, where the defendants were alleged in part to have "provided" material support by providing themselves as "personnel" and to have provided "communications equipment" by using their own telephones. Sattar, 272 F. Supp.2d at 357-61.

  The Government filed the S1 Indictment on November 19, 2003. Sattar and Stewart now move to dismiss the S1 Indictment on numerous grounds.*fn2 They also move for a bill of particulars and various other relief.

  I

  A

  The S1 Indictment alleges the following facts. From at least the early 1990's until in or about April 2002, Omar Ahmad Ali Abdel Rahman, a/k/a "the Sheikh," a/k/a "Sheikh Omar" ("Sheikh Abdel Rahman"), an unindicted alleged co-conspirator in Counts One and Two, was an influential and high-ranking member of terrorist organizations based in Egypt and elsewhere. (S1 Ind. ¶ 1.) Sheikh Abdel Rahman allegedly considered nations, governments, institutions, and individuals that did not share his radical interpretation of Islamic law to be "infidels" and interpreted the concept of "jihad" to compel the waging of opposition against such infidels by whatever means necessary, including force and violence. (S1 Ind. ¶ 1.) The S1 Indictment alleges that Sheikh Abdel Rahman stated publicly in 1990 that "jihad is jihad . . . there is no such thing as commerce, industry and science in jihad. This is calling things . . . other than by its own names. If God . . . says do jihad, it means do jihad with the sword, with the cannon, with the grenades and with the missile; this is jihad. Jihad against God's enemies for God's cause and His word.'" (S1 Ind. ¶ 2.)

  Sheikh Abdel Rahman allegedly supported and advocated jihad to, among other things: (1) overthrow the Egyptian government and replace it with an Islamic state; (2) destroy the nation of Israel and give the land to the Palestinians; and (3) oppose those governments, nations, institutions, and individuals, including the United States and its citizens, whom he perceived as enemies of Islam and supporters of Egypt and Israel. (S1 Ind. ¶ 3.)

  Sheikh Abdel Rahman allegedly endorsed terrorism to accomplish his goals. The S1 Indictment alleges that Sheikh Abdel Rahman stated in a speech given prior to May 2, 1994:
Why do we fear the word "terrorist"? If the terrorist is the person who defends his right, so we are terrorists. And if the terrorist is the one who struggles for the sake of God, then we are terrorists. We . . . have been ordered with terrorism because we must prepare what power we can to terrorize the enemy of God and yours. The Quran [the Islamic holy book] mentioned the word "to strike terror," therefore we don't fear to be described with "terrorism". . . . They may say "he is a terrorist, he uses violence, he uses force." Let them say that. We are ordered to prepare whatever we can of power to terrorize the enemies of Islam.
(S1 Ind. ¶ 4.) Sheikh Abdel Rahman allegedly exercised leadership while subordinates carried out the details of specific terrorist operations. (S1 Ind. ¶ 5.) He was allegedly viewed by his followers and associates as a religious scholar, and he allegedly provided necessary guidance regarding whether particular terrorist activities were permissible or forbidden under his extremist interpretation of Islamic law, and at times provided strategic advice concerning whether such activities would be an effective means of achieving their goals. (S1 Ind. ¶ 5.) The S1 Indictment alleges that Sheikh Abdel Rahman also solicited persons to commit violent terrorist actions, and that he served as a mediator of disputes among his followers and associates. (S1 Ind. ¶ 5.)

  On or about July 2, 1993, Sheikh Abdel Rahman was arrested in the United States. (S1 Ind. ¶ 6.) In October 1995, Sheikh Abdel Rahman was convicted 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 other New York City landmarks. (S1 Ind. ¶ 6.) He was also found guilty of soliciting crimes of violence against the United States military and Egyptian president Hosni Mubarak. (S1 Ind. ¶ 6.) In 1996 Sheikh Abdel Rahman was sentenced to life imprisonment. (S1 Ind. ¶ 6.) His conviction was affirmed on appeal, and became final on January 10, 2000 when the United States Supreme Court refused to hear his case. (S1 Ind. ¶ 6.) The S1 Indictment alleges that both prior to and after his arrest and imprisonment, Sheikh Abdel Rahman was a spiritual leader of an international terrorist group based in Egypt and known as 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" ("Islamic Group"). (S1 Ind. ¶ 8.) Sheikh Abdel Rahman allegedly played a key role in defining and articulating the goals, policies, and tactics of the Islamic Group. (S1 Ind. ¶ 8.)

  Since in or about 1997, Sheikh Abdel Rahman has been incarcerated in various facilities operated by the United States Bureau of Prisons, including the Federal Medical Center in Rochester, Minnesota. (S1 Ind. ¶ 6.) The S1 Indictment alleges that, following his arrest, Sheikh Abdel Rahman urged his followers to wage jihad to obtain his release from custody. (S1 Ind. ¶ 7.) Sheikh Abdel Rahman's followers, including those associated with the Islamic Group, allegedly shared his views about the reasons for jihad, including the goal of obtaining Sheikh Abdel Rahman's release from United States custody. (S1 Ind. ¶ 10.)

  The S1 Indictment charges that, after Sheikh Abdel Rahman's arrest, a coalition of alleged terrorists, supporters, and followers, including leaders and associates of the Islamic Group, al Qaeda, the Egyptian Islamic Jihad, and the Abu Sayyaf terrorist group in the Philippines threatened and committed acts of terrorism directed at obtaining the release of Sheikh Abdel Rahman from prison. (S1 Ind. ¶ 11.) The Islamic Group allegedly released, in response to the sentence of life imprisonment imposed on Sheikh Abdel Rahman, a statement that warned: "All American interests will be legitimate targets for our struggle until the release of Sheikh Omar Abdel Rahman and his brothers. As the American Government has opted for open confrontation with the Islamic movement and the Islamic symbols of struggle, [the Islamic Group] swears by God to its irreversible vow to take an eye for any eye." (S1 Ind. ¶ 13.) The Islamic Group allegedly issued other statements threatening various reprisals if the United States failed to release Sheikh Abdel Rahman from custody. (S1 Ind. ¶¶ 14-16.)

  On or about November 17, 1997, six assassins shot and stabbed a group of tourists visiting an archaeological site in Luxor, Egypt, killing fifty-eight foreign tourists and four Egyptians. (S1 Ind. ¶ 17.) The S1 Indictment charges that, before making their exit, the assassins scattered leaflets espousing their support for the Islamic Group and calling for release of Sheikh Abdel Rahman, and inserted one of the leaflets into one victim's slit torso. (S1 Ind. ¶ 17.) Following this attack, the Islamic Group allegedly issued a statement that blamed the high number of fatalities on Egyptian government security forces, and warned that the Islamic Group would "continue its military operations as long as the regime does not respond to our demands," which included "the establishment of God's law, cutting relations with the Zionist entity (Israel) . . . and the return of our sheik[h] and emir to his land." (S1 Ind. ¶ 18.)

  The S1 Indictment alleges that, on or about October 13, 1999, a statement issued in the name of Islamic Group leader Rifa'i Ahmad Taha Musa, a/k/a "Abu Yasir" ("Taha"), an unindicted alleged co-conspirator in Counts One and Two, vowed to rescue Sheikh Abdel Rahman and that the United States' "hosfile strategy to the Islamic movement" would drive it to "unify its efforts to confront America's piracy." (S1 Ind. ¶ 19.) The S1 Indictment also alleges that, in or about March 2000, individuals claiming association with the Abu Sayyaf terrorist group kidnapped approximately 29 hostages in the Philippines, demanded the release from prison of Sheikh Abdel Rahman and two other convicted terrorists in exchange for the release of the hostages, and threatened to behead hostages if their demands were not met. (S1 Ind. ¶ 20.) Philippine authorities allegedly later found two decomposed, beheaded bodies in an area where the hostages had been held, and four hostages were unaccounted for. (S1 Ind. ¶ 20.) The S1 Indictment further charges that on or about September 21, 2000, an Arabic television station, Al Jazeera, televised a meeting of Taha, Usama Bin Laden (leader of the al Qaeda terrorist organization), and Ayman Al-Zawahiri (former leader of the Egyptian Islamic Jihad organization and one of Bin Laden's top lieutenants). (S1 Ind. ¶ 21.) Sitting under a banner that read, "Convention to Support Honorable Omar Abdel Rahman," the three alleged terrorist leaders allegedly pledged jihad to free Sheikh Abdel Rahman from incarceration in the United States. (S1 Ind. ¶ 21.)

  The S1 Indictment charges that during that meeting, Mohammed Abdel Rahman, a/k/a "Asadallah," who is a son of Sheikh Abdel Rahman, was heard encouraging others to "avenge your Sheikh" and "go to the spilling of blood." (S1 Ind. ¶ 21.) The S1 Indictment charges that at various times starting in or about July 1997, certain Islamic Group leaders and factions called for an "initiative," or cease-fire, in which the Islamic Group would suspend terrorist operations in Egypt in a tactical effort to persuade the Egyptian government to release Islamic Group leaders, members, and associates who were in prison in Egypt. (S1 Ind. ¶ 22.) The S1 Indictment further charges that, in or about February 1998, Usama Bin Laden and Taha, among others, issued a fatwah, a legal ruling issued by an Islamic scholar, that stated, among other things, "We in the name of God, call on every Muslim who believes in God and desires to be rewarded, to follow God's order and kill Americans and plunder their wealth wherever and whenever they find it." (S1 Ind. ¶ 23.) On or about October 12, 2000, in Aden Harbor, Yemen, the S1 Indictment charges, two alleged terrorists piloted a bomb-laden boat alongside the United States Navy vessel the U.S.S. Cole and detonated a bomb that ripped a hole in the side of the U.S.S. Cole approximately forty feet in diameter, killing seventeen crew members and wounding at least forty other crew members. (S1 Ind. ¶ 24.)

  The S1 Indictment alleges that, beginning in or about April 1997, United States authorities, in order to protect the national security, limited certain of Sheikh Abdel Rahman's privileges in prison, including his access to the mail, the media, the telephone, and visitors. (S1 Ind. ¶ 25.) At that time, the Bureau of Prisons, at the direction of the Attorney General, imposed Special Administrative Measures ("SAMs") upon Sheikh Abdel Rahman. (S1 Ind. ¶ 25.) The alleged purpose of the SAMs was to protect "persons against the risk of death or serious bodily injury" that could result if Sheikh Abdel Rahman were free "to communicate (send or receive) terrorist information." (S1 Ind. ¶ 25.) Under the SAMs, Sheikh Abdel Rahman was permitted to call and receive visits only from his immediate family members or his attorneys and their translator. (S1 Ind. ¶ 25.) The SAMs prohibited communication with any member or representative of the news media, and they required all of Sheikh Abdel Rahman's mail to be screened by federal authorities. (S1 Ind. ¶ 25.) The SAMs specifically provided that Sheikh Abdel Rahman's attorneys, before being allowed access to Sheikh Abdel Rahman, were obliged to sign an affirmation acknowledging that that they and their staff would abide fully by the SAMs. (S1 Ind. ¶ 26.) The attorneys agreed in the affirmations, among other things, to "only be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters." (S1 Ind. ¶ 26.) Since at least in or about May 1998, the attorneys also 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." (S1 Ind. ¶ 26.)

  Stewart was one of Sheikh Abdel Rahman's attorneys during his 1995 criminal trial and continued to act as one of his attorneys following his conviction. (S1 Ind. ¶ 27.) Yousry testified as a defense witness at Sheikh Abdel Rahman's 1995 criminal trial and, starting in or about 1997, acted as an Arabic interpreter for communications between Sheikh Abdel Rahman and his attorneys. (S1 Ind. ¶ 27.) The S1 Indictment charges that Sattar is a longtime associate of and surrogate for Sheikh Abdel Rahman. (S1 Ind. ¶ 27.) The S1 Indictment alleges that, following Sheikh Abdel Rahman's arrest, conviction, sentence, and the imposition of the SAMs, Sattar coordinated efforts to keep Sheikh Abdel Rahman in contact with his co-conspirators and followers. (S1 Ind. ¶ 27.) It also alleges that Stewart, through her continued access to Sheikh Abdel Rahman, enabled him to remain in contact with his co-conspirators and followers. (S1 Ind. ¶ 27.) And it alleges that Yousry, through his continued access to Sheikh Abdel Rahman and facilitated by Stewart, enabled Sheikh Abdel Rahman to remain in contact with his co-conspirators and followers. (S1 Ind. ¶ 27.)

  B

  Count One of the S1 Indictment alleges that, from in or about June 1997 through in or about April 2002, defendants Sattar, Stewart, and Yousry, as well as Sheikh Abdel Rahman and Taha, together with others known and unknown, in violation of 18 U.S.C. § 371, conspired to defraud the United States by obstructing the Department of Justice and the Bureau of Prisons in the administration and enforcement of the SAMs imposed on Sheikh Abdel Rahman. (S1 Ind. ¶ 29.) The S1 Indictment alleges a series of overt acts committed in furtherance of the alleged conspiracy, (S1 Ind. ¶¶ 30a-30ii.) For example, the S1 Indictment charges that, following a March 1999 prison visit to Sheikh Abdel Rahman by Stewart and Yousry, Sattar disseminated to an unnamed Islamic Group leader, a statement issued by Sheikh Abdel Rahman and directed to Islamic Group leader Taha, a statement that instructed Taha to adhere to the initiative and to make no changes without consulting or informing Sheikh Abdel Rahman. (S1 Ind. ¶ 30c.) The S1 Indictment also charges that, following a September 1999 prison visit to Sheikh Abdel Rahman by Yousry and one of Sheikh Abdel Rahman's attorneys other than Stewart, Sattar told Taha that Sheikh Abdel Rahman had issued a statement from jail calling for an end to the initiative in response to reports that a raid by Egyptian law enforcement officials that month had resulted in the deaths of four members of the Islamic Group. (S1 Ind. ¶ 30e.)

  On or about May 16, 2000, Stewart signed an affirmation in which she agreed to abide by the terms of the SAMs then in effect on Sheikh Abdel Rahman. (S1 Ind. ¶ 30i.) The S1 Indictment alleges that during a May 2000 prison visit to Sheikh Abdel Rahman by Stewart and Yousry, Yousry told Sheikh Abdel Rahman and Stewart about the kidnappings by the Abu Sayyaf terrorist group in the Philippines and the group's demand to free Sheikh Abdel Rahman. (S1 Ind. ¶ 30j.) Stewart allegedly responded* "Good for them." (S1 Ind. ¶ 30j.) During the same prison visit, Yousry allegedly read Sheikh Abdel Rahman an inflammatory statement by Taha that had recently been published in an Egyptian newspaper. (S1 Ind. ¶ 30k.) Yousry also allegedly read to Sheikh Abdel Rahman, at Stewart's urging, a letter from Sattar. (S1 Ind. ¶ 301.) Sattar's letter allegedly sought Sheikh Abdel Rahman's comments on Sattar's communications with certain Islamic Group leaders, and it also allegedly sought Sheikh Abdel Rahman's endorsement of "the formation of a team that calls for cancellation of the peace initiative or makes threats or escalates things." (S1 Ind. ¶ 301.)

  The S1 Indictment alleges that while Yousry read Taha's statement and Sattar's letter to Sheikh Abdel Rahman, Stewart actively concealed that fact from the prison guards, in part by instructing Yousry to make it look as if Stewart were communicating with Sheikh Abdel Rahman and Yousry were merely translating, by having Yousry look periodically at Stewart and Sheikh Abdel Rahman in turn, and by pretending to be participating in the conversation with Sheikh Abdel Rahman by making extraneous comments like "chocolate" and "heart attack." (S1 Ind. ¶ 30m.) Stewart allegedly observed to Yousry that she could "get an award for" her acts, and Yousry allegedly agreed that Stewart should "get an award in acting." (Id.) On the second day of the May 2000 prison visit, Stewart again allegedly actively concealed the conversation between Yousry and Sheikh Abdel Rahman in which Sheikh Abdel Rahman dictated letters to Yousry about the cease-fire. (S1 Ind. ¶ 30o.)

  Following the May 2000 prison visit, Sattar is alleged to have had telephone conversations with Islamic Group leaders in which he stated that Sheikh Abdel Rahman did not object to a return to "work" (which the S1 Indictment describes as "terrorist operations"), that Sheikh Abdel Rahman agreed that the Islamic Group should escalate the issues in the media, that he advised the Islamic Group to avoid division in its leadership, and that he instructed the Islamic Group to hint at a military operation even if the Islamic Group was not ready for military action. (S1 Ind. ¶ 30p.) The S1 Indictment also alleges that on or about June 14, 2000, Stewart released a statement to the press that quoted Sheikh Abdel Rahman as stating that he "is withdrawing his support for the cease-fire that currently exists." (S1 Ind. ¶ 30r.) The S1 Indictment further alleges that on or about June 20, 2002, Sattar advised Mohammed Abdel Rahman by telephone that Sheikh Abdel Rahman had had a conference call with some of his attorneys that morning and that Sheikh Abdel Rahman had issued a new statement clarifying that he was not unilaterally ending the initiative, but rather was withdrawing his support and stated that it was up to the "brothers" in the Islamic Group to reconsider the issue. (S1 Ind. ¶ 30v.)

  The S1 Indictment also alleges that in October 2000, Taha and Sattar discussed a fatwah that Taha had written under Sheikh Abdel Rahman's name in response to recent events in the Middle East, and that Sattar made revisions to the fatwah. (S1 Ind. ¶ 30w.) Sattar allegedly thereafter called Yassir Al-Sirri, an unindicted alleged co-conspirator, and read to him the fatwah to be issued under Sheikh Abdel Rahman's name entitled "Fatwah Mandating the Killing of Israelis Everywhere," which Al-Sirri agreed to revise and disseminate, and which subsequently appeared on a website operated by Al-Sirri. (S1 Ind. ¶¶ 30x-30y.) In a subsequent phone call on or about October 11, 2000, Yousry allegedly told Stewart that Sheikh Abdel Rahman did not want his attorneys to deny that he had issued the fatwah. (S1 Ind. ¶ 30z.) And during an attorney telephone call to Sheikh Abdel Rahman on or about October 20, 2000, Sheikh Abdel Rahman told Yousry that he did not personally issue the fatwah, but did not want anyone to deny he had made it because "it is good." (S1 Ind. ¶ 30bb.) On or about October 25, 2000, the S1 Indictment charges, Sattar spoke by telephone to Taha, who told Sattar that "an Egyptian male" was involved in the bombing of the U.S.S. Cole, and that Sattar should assist in delivering a message to the United States government suggesting that similar attacks would occur unless Sheikh Abdel Rahman were freed from prison. (S1 Ind. ¶ 30cc.)

  On or about May 7, 2001, Stewart signed an affirmation in which she agreed to abide by the terms of the SAMs then in effect on Sheikh Abdel Rahman. (S1 Ind. ¶ 30dd.) The S1 Indictment charges that, on or about July 13, 2001, during a prison visit to Sheikh Abdel Rahman by Stewart and Yousry, Yousry told Sheikh Abdel Rahman that Sattar had been informed that the U.S.S. Cole had been bombed on Sheikh Abdel Rahman's behalf and that Sattar was asked to convey to the United States government that more terrorist acts would follow if the United States government did not release Sheikh Abdel Rahman from custody. (S1 Ind. ¶ 30ee.) While Yousry was speaking to Sheikh Abdel Rahman, Stewart allegedly actively concealed the conversation between Sheikh Abdel Rahman and Yousry from prison guards by, among other things, shaking a water jar and tapping on the table while stating that she was "just doing covering noise." (S1 Ind. ¶ 30ee.) The S1 Indictment further charges that on a second day of the prison visit by Stewart and Yousry, Yousry read letters to Sheikh Abdel Rahman and Sheikh Abdel Rahman dictated responsive letters to Yousry. (S1 Ind. ¶ 3 Off.)

  The S1 Indictment also alleges that on or about January 8, 2001, Sattar informed Stewart by telephone that a prison administrator where Sheikh Abdel Rahman was incarcerated had pleaded with Sheikh Abdel Rahman's wife to tell Sheikh Abdel Rahman to take insulin for his diabetes. (S1 Ind. ¶ 30gg.) Sattar and Stewart allegedly agreed that Sattar would issue a public statement falsely claiming that the Bureau of Prisons was denying medical treatment to Sheikh Abdel Rahman, even though Sattar and Stewart allegedly knew that Sheikh Abdel Rahman was voluntarily refusing to take insulin for his diabetes. (S1 Ind. ¶ 30gg.) Stewart allegedly expressed the opinion that this misrepresentation was "safe" because no one on the "outside" would know the truth. (S1 Ind. ¶ 30gg.) The S1 Indictment further alleges that Sattar and Al-Sirri thereafter wrote a statement falsely claiming that Sheikh Abdel Rahman was being denied insulin by the United States Government, a statement that Sattar and Al-Sirri disseminated to several news organizations, including Reuters, and on a website. (S1 Ind. ¶ 30hh-30ii.)

  Count Two of the S1 Indictment charges that, from in or about September 1999 through in or about April 2002, in violation of 18 U.S.C. § 956(a)(1) and (a)(2)(A), defendant Sattar, Sheikh Abdel Rahman, Taha, and others known and unknown, conspired to murder and kidnap persons in a foreign country. (S1 Ind. ¶ 32.) In addition to realleging various of the acts described above, such as various activities of Taha and the issuance of the October 2000 fatwah, Count Two alleges that in or about September and October 2000, Sattar allegedly participated in several telephone calls in an effort to facilitate a meeting in Egypt between Taha and Alaa Abdul Raziq Atia ("Atia"), an Islamic Group member who was wanted in connection with the 1997 Luxor terrorist attack in Egypt and who was a fugitive. (S1 Ind. ¶ 33b.) Sattar allegedly arranged and listened to various telephone calls between Taha and one of Atia's associates, an unindicted alleged co-conspirator, while they discussed the Islamic Group's use of military action and the upcoming meeting with Atia. (S1 Ind. ¶¶ 33c-33e.) On or about October 9, 2000, Sattar allegedly agreed during a telephone conversation with Taha to follow Taha's instructions to inform Atia's associate that Sheikh Abdel Rahman had issued a fatwah and to tell Atia's associate to instruct his associates that they "are supposed to go by it." (S1 Ind. ¶ 33f.) On or about October ll, 2000, Sattar allegedly told Taha in a telephone conversation that he had spoken with Atia and believed that Atia was eager, ready and able "to do things," and that he had to warn Atia repeatedly during their telephone conversation that his telephone was "not safe." (S1 Ind. ¶ 33g.) In a subsequent telephone call in November 2000, Taha allegedly told Sattar that he feared that Atia had been killed during a raid by Egyptian law enforcement, and noted that he had asked Atia about his "capacity" and discussed with Atia whether they would have a chance to "do something." (S1 Ind. ¶ 33h.)

  Count Three of the S1 Indictment alleges that, from in or about September 1999 through in or about April 2002, defendant Sattar and others known and unknown, in violation of 18 U.S.C. § 373, solicited other persons to engage in violent terrorist operations worldwide to achieve the Islamic Group's objectives in violation of 18 U.S.C. § 956, 2332, and 2232b. (S1 Ind. ¶ 35.)

  Count Four charges that, from in or about September 1999 through in or about April 2002, defendants Stewart and Yousry, together with others, conspired, in violation of 18 U.S.C. § 371, to violate 18 U.S.C. § 2339A. (S1 Ind. ¶ 37.) The alleged object of the conspiracy was to provide material support and resources, in the form of personnel, by making Sheikh Abdel Rahman available as a co-conspirator, and to conceal and disguise the nature, location, and source of personnel by concealing and disguising that Sheikh Abdel Rahman was a co-conspirator.*fn3 (S1 Ind. ¶ 38.) The S1 Indictment charges that Stewart and Yousry carried out this conspiracy knowing and intending that such material support and resources were to be used in preparation for, and in carrying out the conspiracy charged in Count Two of the S1 Indictment-namely, the conspiracy to kill and kidnap persons in a foreign country — and in preparation for, and in carrying out, the concealment of such violation. (S1 Ind. ¶ 38.) Count Four realleges various overt acts in furtherance of the alleged conspiracy. (S1 Ind. ¶ 39.) Count Five charges defendants Stewart and Yousry with committing the substantive offense of violating 18 U.S.C. § 2339A and 2 that was the object of the conspiracy charged in Count Four. (S1 Ind. ¶ 41.)

  Counts Six and Seven charge defendant Stewart with having made false statements in her affirmations submitted to the United States Attorney's Office for the Southern District of New York, in May 2000 and May 2001, respectively, stating that she would abide by the terms of the SAMs imposed on Sheikh Abdel Rahman, that the translators accompanying her on prison visits would be used only for communications concerning legal matters, and that she would not use any communication with Sheikh Abdel Rahman to pass messages between Sheikh Abdel Rahman and third parties, including, but not limited to, the media. (S1 Ind. ¶¶ 43, 45.) The May 2001 affirmation is also alleged to be false in stating that Stewart "will only allow the meetings to be used for legal discussion between Abdel Rahman and [her]." (S1 Ind. ¶ 45.)

  C

  Stewart now moves to dismiss Counts Four and Five of the S1 Indictment on the grounds that 18 U.S.C. § 2339A, as applied to Stewart, is unconstitutionally vague and overbroad. She moves to dismiss Counts Four and Five on the alternative grounds that they are impermissibly multiplicitous and that they impermissibly charge a double, or even triple, inchoate crime in violation of the Due Process Clause. She moves to dismiss Count Four on the grounds that it either violates the Ex Post Facto Clause or charges an offense that did not exist at the time of the alleged conduct. Stewart moves to dismiss Count One on the grounds that 18 U.S.C. § 371 fails to state an offense and is unconstitutionally vague as applied in this case. She moves to dismiss Counts One and Four as impermissibly multiplicitous, and she moves to dismiss Counts Six and Seven for failure to state an offense against the United States. She moves to dismiss Counts Four, Five, and Seven on the grounds of vindictive prosecution and, in the alternative, seeks an evidentiary hearing on the issue. For all counts not dismissed, Stewart seeks to strike as prejudicial surplusage various aspects of the S1 Indictment. She also moves to disqualify two of the Assistant United States Attorneys in the case because they allegedly ought to be witnesses. Stewart also seeks a severance and immediate production of all statements of any defendant that the Government intends to use at trial". Stewart also seeks a bill of particulars.

  Sattar moves to dismiss Count Two on the grounds that it is duplicitous and that it is the product of Prosecutorial vindictiveness. He also moves for a bill of particulars and for pretrial access to Mohammed Abdel Rahman, whom Sattar believes to be in the custody of the United States.

  II

  Stewart moves to dismiss Counts Four and Five on a number of grounds. Counts Four and Five charge Stewart and Yousry with conspiring to violate, and violating, 18 U.S.C. § 2339A.

  Title 18, United States Code, section 2339A provided at all relevant times:
(a) Offense. — Whoever, within the United States, provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section 32, 37, 81, 175, 351, 831, 842(m) or (n), 844(f) or (i), 930(c), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, 2332c, or 2340A of this title or section 46502 of title 49, or in preparation for, or in carrying out, the concealment or an escape from the commission of any such violation, shall be fined under this title, imprisoned not more than 10 years, or both.
(b) Definition. — In this section, the term "material support or resources" means 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 materials.
18 U.S.C. § 2339A.*fn4

  Counts Four and Five charge that Stewart and Yousry conspired to provide, and did in fact provide, material support knowing or intending that it would be used in preparation for, or in carrying out, the conspiracy charged in Count Two — the conspiracy to kill and kidnap persons in a foreign country in violation of 18 U.S.C. § 956 — by making Sheikh Abdel Rahman available as a co-conspirator in the Count Two conspiracy. The Counts also charge that Stewart and Yousry conspired to, and did in fact, conceal and disguise the nature, location, and source of Sheikh Abdel Rahman as personnel preparing for, or carrying out, the conspiracy charged in Count Two. The S1 Indictment alleges, among other things, that Stewart and Yousry used prison visits with Sheikh Abdel Rahman to pass messages between Sheikh Abdel Rahman and his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.