The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
On August 1, 2006, defendant, Khalid Awan, was indicted on
(1) one count of conspiring to provide material support and resources, knowing and intending that such support would be used in preparation for and in carrying out a conspiracy to murder, kidnap or maim a person or persons outside of the United States, in violation of 18 U.S.C. § 2339(A) and 18 U.S.C. § 956(a),
(2) one count of actually providing material support and resources, knowing and intending that such support would be used in preparation for and in carrying out a conspiracy to murder, kidnap or maim a person or persons outside of the United States, in violation of 18 U.S.C. § 2339(A) and 18 U.S.C. § 956(a), and
(3) one count of knowingly and intentionally transporting, transmitting and transferring monetary instruments and funds from a place in the United States to a place outside the United States, with the intention of promoting an offense against a foreign nation, involving murder and destruction of property by means of explosive or fire in violation of 18 U.S.C. § 1956(c)(7)(B)(ii). Now before the Court are defendant's motions to dismiss the indictment.*fn1
For the reasons set forth below, defendant's motion is granted with respect to Counts One and Two and denied with respect to Count Three.
The following facts are taken from the indictment, the record of these proceedings and the submissions of the parties in connection with these motions.
2001 Initial Arrest and Charges
On October 25, 2001 the government arrested the defendant on a charge of credit card fraud. He was thereafter detained pursuant to a material witness warrant in connection with the investigation of events of September 11, 2001. On November 6, 2001 defendant, represented by an attorney, testified before the grand jury as a material witness. He was not, however, released from custody, but continued to be detained in connection with the charge of credit card fraud. On November 14, 2001 defendant was arraigned before Magistrate Judge Lindsey and ordered detained pending trial.
Defendant thereafter retained counsel and was indicted on credit card fraud charges on December 4, 2001; a superceding indictment was filed on May 7, 2002.*fn2 On March 17, 2003 defendant pleaded guilty to one count of credit card fraud in violation of 18 U.S.C. § 1029. He was sentenced on October 28, 2004 to sixty months incarceration. A judgment of conviction was entered on November 8, 2004.
Defendant was scheduled to be released from his 2004 sentence in March, 2006. However, on March 8, 2006 he was again indicted. A superceding indictment was filed August 1, 2006. The three-count indictment superceding reads as follows:
In or about and between 1998 and February 2005, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant KHALID AWAN, together with others, did knowingly and intentionally conspire to provide material support and resources, as that term [sic] is defined in 18 U.S.C. §2339A(b) (2005), knowing and intending that they were to be used in preparation for, and in carrying out, a conspiracy to murder, kidnap or maim a person or persons outside the United States in violation of Title 18 United States Code, Section 956(a).
In or about and between 1998 and November 6, 2001, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant KHALID AWAN did knowingly and intentionally provide material support and resources, as that term [sic] is defined in 18 U.S.C. §2339A(b) (2005), knowing and intending that they were to be used in preparation for, and in carrying out, a conspiracy to murder, kidnap or maim a person or persons outside the United States in violation of Title 18 United States Code, Section 956(a).
In or about and between 1998 and November 6, 2001, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant KHALID AWAN did knowingly and intentionally transport, transmit and transfer monetary instruments and funds from a place in the United States to a place outside the United States with the intent to promote the carrying on an offense against a foreign nation involving murder and destruction of property by means of explosive or fire, in violation of Title 18 United States Code, Section 1956(c)(7)(B)(ii).
The government alleges, in its filings in connection with this motion, that defendant transferred his own money and assisted others in transferring money to the Khalistan Commando Force ("KCF"), a Sikh separatist organization based in Pakistan. Additionally, the government alleges that defendant recruited fellow prison inmates to join the KCF.
Defendant was arraigned on these charges on March 16, 2006 and August 9, 2006. Trial is scheduled for December, 2006.
Defendant has filed motions to dismiss the indictment on a variety of grounds discussed seriatim below.*fn3
A. Failure to State an Offense
1. Counts One and Two*fn4
Defendant argues that Counts One and Two fail to allege the essential elements of the "material support" offense.*fn5 In particular, he argues that these counts fail to provide the sufficient factual detail as to what "material support or resources" defendant provided and at what times; since the statute enumerates several different types of conduct which are each defined as material support, defendant contends that the level of detail provided in the indictment does not give adequate notice of the charges.*fn6
In general, "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. U.S., 418 U.S. 87, 117 (1974). The courts of this circuit "have consistently upheld indictments that do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000) (internal citations and quotations omitted).
However, recital of the statutory language is not enough under all circumstances. To comply with the protections of the Fifth and Sixth Amendments, an indictment must contain sufficiently specific facts to provide the defendant "with reasonable certainty, of the nature of the accusation against him" so that he knows "what he must be prepared to meet." Russell v. U.S., 369 U.S. 749, 764-65 (1962) (internal citations and quotations omitted). In addition, the indictment must be framed to "ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury." Pirro, 212 F.3d at 92 (internal citations and quotations omitted). As the Supreme Court noted in Russell:
To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which [the] . . . grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.
Russell, 369 U.S. at 770. These concerns are heightened when the statute in question uses generic terms to categorize a variety of different activities each proscribed in the statute; in that case, "it is not sufficient that the indictment shall charge the offence [sic] in the same generic terms as in the definition; but it . . . must descend to particulars." Pirro, 212 F.3d at 93 (internal citations and quotations omitted); see also Russell, 369 U.S. at 765 (internal citations and quotations omitted) (stating that "[u]ndoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged"); 1 Wright, Federal Practice and Procedure § 125 (2006) ("[i]f the statute is couched in general terms, the indictment must particularize the offense sufficiently to inform the defendant of the accusation he must meet").
Here, the indictment uses the generic expression "material support," as defined in 18 U.S.C. § 2339A(b), without specifying which of a variety of activities, any one of which would be criminal, that the defendant must defend against or which the grand jury considered. The government has indicated in its papers on this motion that it plans to prove that defendant provided "money," referring presumably to "currency or monetary instruments or financial securities," and "personnel," referring to "1 or more individuals who may or may not include [the defendant]", to the KCF. However, there is no way of knowing whether the grand jury considered both categories (or, for that matter, either) of those activities under the general heading of material support.*fn7 See U.S. v. Crowley, 79 F.Supp.2d 138, 159 (E.D.N.Y. 1999) (rev'd on other grounds) (dismissing an indictment which referred to "sexual conduct" on the grounds that such conduct could refer to any or all of the acts specifically defined in the statute and finding that "[g]iven the variety of ways in which this statute could be violated, the conduct alleged to comprise the charged "sexual act" must be delineated in the indictment").
Although the defendant argues that the allegations in Counts One and Two regarding the objectives of the alleged 18 U.S.C. § 956*fn8 conspiracies to commit murder, maiming or kidnapping are also deficient, for similar reasons that argument must ...