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United States v. Awan

March 7, 2007

UNITED STATES OF AMERICA
v.
KHALID AWAN, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

After a jury trial, defendant, Khalid Awan was found guilty on December 20, 2006 of (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 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 this Court is defendant's motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29 or for a new trial under Federal Rule of Criminal Procedure 33.

Background

On October 25, 2001, FBI agents arrested Khalid Awan at a house in Garden City, New York on a charge of credit card fraud. He was indicted on those charges on December 4, 2001; a superseding indictment was filed on May 7, 2002. On March 17, 2003 defendant pleaded guilty to one count of credit card fraud in violation of 18 U.S.C. § 1029. Defendant was sentenced on October 28, 2004 to sixty months incarceration. A judgment of conviction reflecting that sentence 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 superseding indictment was filed August 1, 2006 and a second superseding indictment filed October 23, 2006. The three-count indictment second superseding reads as follows:

Count One:

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, to wit: currency, monetary instruments, financial services and personnel, knowing and intending that they were to be used in preparation for, and in carrying out, a conspiracy to commit at a place outside the United States an act that would constitute the offense of murder, kidnapping or maiming if committed in the special maritime and territorial jurisdiction of the United States, in violation of Title 18 United States Code, Section 956(a).*fn1

Count Two:

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, to wit: currency, monetary instruments, financial services and personnel, knowing and intending that they were to be used in preparation for, and in carrying out, a conspiracy to commit at a place outside the United States an act that would constitute the offense of murder, kidnapping or maiming if committed in the special maritime and territorial jurisdiction of the United States, in violation of Title 18 United States Code, Section 956(a).*fn2

Count Three:

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 of specified unlawful activity, to wit: an offense against a foreign nation, to wit: India, involving murder as defined by Indian Penal Code Section 300 and destruction of property by means of explosive or fire as defined by Indian Penal Code Section 435.*fn3

Defendant was arraigned on these charges on March 16, 2006, August 9, 2006 and October 30, 2006. A jury trial began before the undersigned on December 4, 2006 and concluded with a verdict of guilt on all three counts on December 20, 2006.

Discussion

I. Rule 29 Motion

At the close of the government's case, the defendant moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, at which time the Court reserved decision on that question. Under Rule 29, "the court . . . must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). On such a motion, the defendant "bears a heavy burden," since "evidence must be viewed in the light most favorable to the government and all permissible inferences must be drawn in its favor." U.S. v. RW Prof'l Leasing Serv.s Corp., 452 F.Supp.2d 159, 172 (E.D.N.Y. 2006). In addition, "[t]he court also must defer to the jury's resolution of witness credibility and, where there is conflicting testimony, to its selection between competing inferences . . . . [moreover] the court must consider the evidence in its totality, and not in isolation." Id. Accordingly, "[t]he jury's verdict must be sustained, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." U.S. v. Finley, 245 F.3d 199, 202-3 (2d Cir. 2001) (internal quotations and citations omitted). Where "either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must let the jury decide the matter." U.S. v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). "[T]he court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." U.S. v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (internal quotations and citations omitted). That said, "a conviction based on speculation and surmise alone cannot stand . . . . [and] the government must do more than introduce evidence at least as consistent with innocence as with guilt." U.S. v. D'Amato. 39 F.3d 1249, 1256 (2d Cir. 1994) (internal quotations and citations omitted).

A. Count One - Conspiracy to Provide Material Support

Defendant offers several reasons why the evidence introduced at trial was insufficient to establish a ...


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