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United States District Court, S.D. New York

December 2, 2004.

SUSAN LINDAUER, a/k/a "Symbol SUSAN," RAED NOMAN AL-ANBUKE, a/k/a "Ra'id Al Anbuge," a/k/a "Raed Rokan," a/k/a "Raed Al-Anbaki," and WISAM NOMAN AL-ANBUKE, a/k/a "Wisam Al Anbuge," a/k/a "Wisam Noman Rokan," Defendants.

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


The indictment charges the three defendants with acting unlawfully in the United States as agents of the Iraqi Intelligence Service ("IIS"), and with conspiring to do so. In addition, it charges defendants Raed Noman Al-Anbuke and Wisam Noman Al-Anbuke, brothers, with making false statements to agents of the Federal Bureau of Investigation — Raed Al-Anbuke in one count and Wisam Al-Anbuke in four — and charges defendant Susan Lindauer with engaging in prohibited financial transactions with the Government of Iraq at a time when Iraq was designated as a country supporting international terrorism, and thereby also violating the International Emergency Economic Powers Act.

  The Al-Anbuke defendants have moved to sever their trial from Lindauer's. They have moved also to dismiss Counts One, Three and Four of the indictment — which charge conspiracy to violate Section 951 of Title 18 and substantive violations of that statute — on the ground that that statute, which makes it unlawful to act as the agent of a foreign government without prior notification to the Attorney General, is unconstitutional both because it is vague and because it fails to include a requirement that a defendant act with guilty knowledge. Finally, they have moved for a bill of particulars.

  For the reasons set forth below, the motions are denied. I.

  Count One of the indictment charges, in bare-bones fashion, that the defendants "and others known and unknown" agreed to violate Section 951 of Title 18, and that it was a part of that conspiracy that the defendants "would and did act in the United States as agents of . . . the government of Iraq, without prior notification to the Attorney General[.]" The overt acts listed in the indictment describe alleged meetings and other contact with officers of the Iraqi Intelligence Service ("IIS"). In open court and in its papers, the government has made clear that the proof at trial will not show joint action by the Al-Anbuke brothers and Lindauer, or indeed that they were even aware of one another. Rather, it is the government's theory that the IIS itself "operated as a criminal conspiracy in the United States at least throughout the period covered in the [i]ndictment" inter alia by using "agents, such as the defendants, to procure information and intelligence for the benefit of the IIS and the Saddam Hussein regime" for purposes that ranged from "gathering information on Iraqi dissidents in the United States to influencing the foreign policy of the United States." (Gov't. Mem. of Law in Opp'n to the Al-Anbuke Defs.' Mot. for Severance at 6-7) The government proffers that it "expects to prove that the same core group of IIS officers interacted with or handled the Al-Anbukes and Lindauer." (Id. at 7)

  The Al-Anbukes claim that by the standards prevailing under Federal Rules of Criminal Procedure 8(b) and 14(a),*fn1 they should not be joined for trial with Lindauer for three reasons. First, the charges against them are not properly related to the charges against Lindauer, such that they are not allegedly participants in the "same series of acts or transactions" as provided in Fed.R.Crim.P. 8(b). Second, they will suffer prejudice from the delay of their trial occasioned by the joinder of Lindauer as a defendant in March 2004, the initial charges against them having been filed in June 2003 and they having been incarcerated since March 2003. Third, they will suffer prejudice at trial from proof that Lindauer made tape recorded statements showing her hostility to Jews.

  As concerns the relationship between the Al-Anbukes and Lindauer, it is a staple of conspiracy law that a conspirator need not know all the other conspirators, or indeed the details of the conspiracy itself beyond his own participation with others in immediate contact with him. See, e.g., United States v. Sureff, 15 F.3d 225, 230 (2d Cir. 1994) ("A single conspiracy may encompass members who neither know one another's identities, nor specifically know of one another's involvement.") (citing United States v. Labat, 905 F.2d 18, 21 (2d Cir. 1990) ("The defendant need not know the identities of all of the other conspirators, nor all of the details of the conspiracy."); Blumenthal v. United States, 332 U.S. 539, 557 (1947) ("[T]he law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all of its details or of the participation of others.")).

  The government alleges that the nexus among the defendants is that they helped IIS gather information, and that information they obtained at the behest of IIS was assimilated into reports provided to the Iraqi government. It is IIS that is alleged to be the focus and driving force of the conspiracy; indeed, IIS itself is alleged to have functioned as a conspiracy. In concept, this is no different from the situation presented when defendants who work for the same drug distribution network, albeit at different locations, are indicted and tried together. That, as the cases cited immediately above make clear, is not an impermissible joinder; neither is this.

  Raed Al-Anbuke appears to recognize this, because in a letter to the court dated September 3, 2004, he appears to go further and to argue that the government's claim of a connection between the Al-Anbuke brothers and Lindauer through IIS is advanced in bad faith, based in part on an article purporting to describe Lindauer's exploits that appeared in the New York Times Magazine. The article includes information apparently obtained from Lindauer herself. Raed Al-Anbuke suggests that the article conveys no impression that Lindauer's contacts and those of the Al-Anbuke brothers overlapped. However, there is no evidence of record to support that argument, and I am unwilling to accept the notion that the article in question marks the outer limits of the government's case. Even if it did, that would provide no basis for a finding that the government acted in bad faith when it asked the grand jury to charge the Al-Anbuke brothers and Lindauer in a single indictment.

  The second ground for severance cited by the Al-Anbuke defendants — that they will be prejudiced by delay in the start of their trial — is more weighty, but by no means sufficient. Although it is true that the introduction of Lindauer into the equation may have delayed the start of trial, that is not at all certain. The initial trial date in this matter was to be April 19, 2004, but the Al-Anbuke defendants do not appear to dispute that they intended to seek an adjournment of that date so that they could file a motion to dismiss the counts charging violations of 18 U.S.C. § 951, which makes it unlawful to act as the agent of a foreign government without prior notification to the Attorney General, on the ground that that statute is unconstitutionally vague. Moreover, counsel for Raed Noman Al-Anbuke has been unavailable for trial for a substantial portion of the summer due to travel plans. He notified the court in June that he would not be available for trial until late September (6/24/04 Tr. at 3), and pronounced October 4 or October 11 "very good from our point of view." (Id. at 5) However, at that point briefing was not complete on the dismissal motions, which were not fully submitted until July. (Id. at 6) It may well be that by the time this case is tried, as much as three months of delay may be attributed to the joinder of Lindauer, her demand for new counsel, and the need for her counsel to obtain security clearance. That is regrettable, but it is by no means unprecedented inasmuch as delays attributable to one defendant under the Speedy Trial Act generally are attributable to all. See, e.g., United States v. Gambino, 784 F.Supp. 129, 138 (S.D.N.Y. 1992) (motion for immediate trial by two defendants denied so that court could await outcome of certiorari petition on double jeopardy issue by third defendant, and try all three together).

  To the extent that the Al-Anbuke defendants challenge the notion that the countervailing value of judicial economy will not be served by a joint trial because much evidence to be offered against Lindauer would not be offered against them at a separate trial, they are on weak ground. The government is the best authority on the scope of its case, and the government has represented that "the amount of [Jencks Act] material that defense counsel must review in preparation for a joint trial will not increase in any meaningful way." (Gov't. Mem. of Law in Opp'n to the Al-Anbuke Defs.' Mot. for Severance at 12).

  Finally, the Al-Anbuke defendants have argued that evidence to be offered against Lindauer, including principally her anti-Semitic comments in one recorded conversation, would cause intolerably prejudicial spillover against them. However, as this court has pointed out before, "the Court of Appeals has iterated and reiterated the observation that `differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials.'" United States v. Rahman, 854 F.Supp. 254, 263 (S.D.N.Y. 1994) (quoting United States v. Carson, 702 F.2d 351, 366-67 (2d Cir. 1983)). Because "[p]roof of the full nature and scope of a conspiracy is admissible even at the trial of lesser participants," a "defendant cannot claim improperly prejudicial spillover from the introduction of such proof." Id. at 264. Finally, it bears mention that a jury in a three-defendant case should have no difficulty keeping straight which proof relates specifically to which defendant, and that to the extent there may be a contrast to be drawn between the Al-Anbuke defendants and Lindauer that helps the former, a joint trial could work to their benefit.

  I recognize, of course, that each of the claims of the Al-Anbuke defendants does not stand alone, but is presented along with the others. However, the law strongly favors joint trials for those jointly indicted so as to preserve economy of resources for all involved in the process, including judges, jurors, lawyers, and witnesses. See, e.g., United States v. Lyles, 593 F.2d 182, 191 (2d Cir. 1979). The standard for compelling a severance despite such considerations is that "there is a serious risk that a joint trial would compromise a specific trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993). It is not enough that a defendant seeking a separate trial might suffer some prejudice from a joint trial, or would have a better chance of acquittal at a separate trial. See United States v. Torres, 901 F.2d 205, 230 (2d Cir. 1990). Rather, the defendant must show "that the failure to sever [would] cause? him `substantial prejudice' in the form of a `miscarriage of justice.'" United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991) (quoting United States v. Potamitis, 739 F.2d 784, 790 (2d Cir. 1984)). For the reasons set forth above, that standard simply has not been met here.


  A. Vagueness

  The claim that the statute under which the Al-Anbuke brothers are charged is unconstitutionally vague does not require extensive discussion. The statute in question, 18 U.S.C. § 951, provides that "[w]hoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General" is guilty of a crime. The moving defendants claim that the statute is unconstitutionally vague on its face, and denies them due process because they cannot tell what it means to "act? . . . as an agent of a foreign government."

  However, facial challenges to criminal statutes are reserved for those cases that implicate conduct protected by the First Amendment; absent such conduct, the constitutionality of a statute is evaluated in its application to the underlying facts. See Chapman v. United States, 500 U.S. 453, 467 (1991). If the conduct of a defendant is "clearly proscribed" by a statute, he may not challenge that statute on the ground that it might be vague as applied to someone else's conduct. See United States v. Strauss, 999 F.2d 692, 698 (2d Cir. 1993).

  The conduct charged in the indictment is clearly proscribed by the statute. See United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003); United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993). The Justice Department's regulations define "agent" in "agent of a foreign government" to mean "all individuals acting as representatives of, or on behalf of, a foreign government or official, who are subject to the direction or control of that foreign government or official, and who are not specifically excluded by the terms of the Act or the regulations thereunder." 28 C.F.R. § 73.1(a) (2004). Contrary to the view pressed by the moving defendants, the term "agent," as the one appellate court to have considered the issue already has found, is "readily understandable" and "provides adequate notice of the conduct proscribed by the statute." See United States v. Truong Dinh Hung, 629 F.2d 908, 920 (4th Cir. 1980).

  B. Scienter

  The Al-Anbuke defendants challenge the constitutionality of the statute also for its lack of a scienter element, and the sufficiency of the indictment for failure to charge such an element. The statute defines as a crime acting as an agent of a foreign government without prior notification to the Attorney General, and does not specify the state of mind with which a defendant must act in order to be convicted. However, the statute is not, as defendants suggest, a notification statute. That is, it is not a statute that imposes a requirement of notification or registration, but rather a statute that criminalizes certain conduct — acting as an agent of a foreign government — in the absence of notification. What level of knowledge and criminal intent defendants must have manifested in order to be convicted of violating the statute is something that can and should be discussed at or before trial. For now, it is sufficient to point out that although the statute does not specify any particular state of mind with which a defendant must have acted in order to be guilty, that does not mean that a defendant can be convicted for unintentional conduct. It is generally the duty of a court to construe a statute to carry out the intent of Congress in a way that avoids constitutional infirmities. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). Although I am certainly not free simply to disregard the clear unconstitutionality of a statute in order to save it, see Miller v. French, 530 U.S. 327, 341 (2000), courts have read higher levels of knowledge into criminal statutes than those statutes might ordinarily be read to specify so as to avoid the manifest unfairness of prosecuting a person for unknowing violation of an obscure or complex statute. See United States v. George, 386 F.3d 383, 392-93 (2d Cir. 2004). Here, although § 951 does not explicitly describe the mental state a defendant must have before he can be convicted, "knowledge of the facts constituting the offense ordinarily is implicit in a criminal statute that does not expressly provide a mental element." United States v. Santeramo, 45 F.3d 122, 123 (2d Cir. 1995) (citing United States v. X-Citement Video, Inc., 512 U.S. 64, 70-71 (1994)).

  Moreover, in this case the indictment does allege that the defendants acted with criminal intent. Specifically, in the substantive counts, it alleges that the defendants acted "unlawfully and knowingly," which I read to mean that they acted with general intent to do something illegal and with intent to engage in the acts alleged. "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as `those words of themselves fully, directly, and expressly . . . set forth all the elements necessary to constitute the offence intended to be punished.'" Hamling v. United States, 418 U.S. 87, 117 (1974) (quoting United States v. Carll, 105 U.S. 611 (1881)). If anything, the instant indictment exceeds the required minimum. What facts the law might require these defendants to have known, and whether the notification requirement is such a fact, is something that can be discussed at trial. III.

  The Al-Anbuke defendants' request for a bill of particulars detailing, among other things, the precise dates and times, and general locations, when they are alleged to have acted unlawfully, is not backed by any showing of why it is necessary in this case. They say that they may wish to assert a "public authority" defense (Wisam Al-Anbuke Mem. at 38), but they do not suggest why a bill of particulars is necessary for them to do so, although they do indicate a desire to know whether the dates of allegedly unlawful behavior relate to dates when they met with federal agents (id.).

  As a general matter, a bill of particulars is not, strictly speaking, a pretrial discovery device, although motions for bills of particulars are made before trial. Rather, the function of a bill of particulars is to avoid unfair surprise to the defendant at trial, and to permit him to invoke the defense of double jeopardy. Those are the only legitimate purposes of a bill of particulars. See Wong Tai v. United States, 273 U.S. 77, 83 (1927); N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481, 497 (1909); United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). More specifically, a bill of particulars may not be used to require the government to preview the government's evidence at trial. "The defendants are not entitled to a bill of particulars setting forth the `whens,' `wheres,' and `with whoms' regarding the . . . conspiracy." United States v. Muyet, 945 F. Supp. 586, 599 (S.D.N.Y. 1996). Defendants will be made aware at trial of the dates, precise or approximate, when they are alleged to have acted unlawfully, and can interpose any defense the facts permit. No more is required at this time.

  Accordingly, the motion for a bill of particulars is denied.

  For the above reasons, the motions of the Al-Anbuke defendants for severance, to dismiss the indictment, and for a bill of particulars, are denied.


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