The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court is defendant Jamal Yousef's ("Defendant" or "Yousef") motion to dismiss the Third Superseding Indictment. Yousef contends that the Due Process Clause of the Fifth Amendment requires dismissal because there is an insufficient nexus between his allegedly unlawful conduct and the United States to justify the extraterritorial application of United States law. For the reasons that follow, Defendant's motion is denied.
According to the Third Superseding Indictment (the "Indictment"), Yousef is a former member of the Syrian military and a known international arms dealer. (S-3 Indictment ¶ 7.) The Government alleges that Yousef and his unnamed co-conspirators agreed to provide a cache of military-grade weapons to an individual purporting to represent the Fuerzas Armadas Revolucionarias de Colombia (the "FARC") in exchange for thousands of kilograms of cocaine. (Id. ¶ 6.)
The FARC is designated as a terrorist organization by the United States Government pursuant to Section 219 of the Immigration and Nationality Act. (Id. ¶ 1.) According to the Indictment, the FARC is the world's largest supplier of cocaine and is dedicated to the violent overthrow of the democratically-elected government of Colombia. (Id.) The Indictment alleges that the FARC uses targeted acts of violence to protect its interest in the drug trade, such as attacks against coca fumigation aircraft and other Colombian infrastructure and the kidnapping and killing of United States nationals. (Id. ¶ 2.)
At the time of the charged conduct, Defendant was imprisoned in Honduras for actions unknown to the Court, but apparently unrelated to the instant matter. (Id. ¶ 7.) Because of Defendant's incarceration, the majority of the charged overt acts were made by co-conspirators on Defendant's behalf who kept him apprised of the progress of the deal while he was in custody. The following factual allegations regarding the charged conspiracy are taken from the Indictment and the transcripts of recorded conversations submitted to the Court by the Government in opposition to the instant motion:
On or about September 25, 2008, a confidential source ("CS-1") working for the United States Drug Enforcement Administration in Central America met with a co-conspirator not named in the Indictment ("CC-1") at CC-1's home in Honduras to discuss the charged arms-for-narcotics transaction. (Id. ¶ 10(a).) CS-1 purported to represent the FARC and CC-1 indicated that he was acting on behalf of Yousef. (Id.)
At the meeting, CC-1 agreed in principle to sell weapons controlled by Yousef, including automatic rifles, M-60 machine guns, rocket propelled grenades, hand grenades, anti-tank munitions, and C-4 explosives. (Id. ¶¶ 6, 10(a).) Based on representations by CS-1 during the course of the negotiations, Yousef and his co-conspirators believed that the cocaine would be supplied by the FARC and the weapons involved in the transaction would be used by the FARC. (Id. ¶ 6.) CC-1 claimed that the weapons were stolen from Iraq and being stored in Mexico at the home of Yousef's relative, who, according to Yousef, is a member of Hezbollah. (Id. ¶¶ 6-7, 10(a).) With regard to the source of the weapons, CC-1 stated specifically:
CC-1: Look, what we have comes from . . . Most of them - as far as the M-16s, the AR-15s, the M-60s, the, uh, hand grenades, explosives, uh, the bullet-proof vests, uh, those come from Iraq. They're totally new and it's the latest generation, what the 'gringos' are using in Iraq. How did we obtain them? From the gringos themselves[.]
CS-1: You took . . . you took the question from my mouth, because it's . . . I'll repeat once again. It's . . . it's . . . not normal. I'm saying to him, "Where am I going to get five thousand rifles in Central America?"
CC-1: So, I want to show you with the newspaper, look, and . . . and . . . with the video uh . . . what . . . what . . . what we have. How did that get there? I'll explain that as far as the American weapons are concerned, those were brought over from Iraq. They were stolen and purchased in Iraq. (Brown Decl., Ex. A, at 24, 27).
CC-1 and CS-1 continued to negotiate the transaction over the telephone, by e-mail, and in person over the next month. CS-1 often reiterated his affiliation with the FARC and in one instance detailed his organization's role in the drug trade, explaining that the FARC does not "have the infrastructure" to set itself "up on the highways and avenues of the United States" and so it "depend[s]" on "several organizations in Mexico" to deliver the product. (Brown Decl., Ex. D, at 83-85.)
On or about October 15, 2008, CC-1 sent CS-1 an e-mail which attached several photographs of the weapons cache, including one photograph of a man posing in front of the weapons holding a Belizean newspaper dated September 21, 2008. (S-3 Indictment ¶ 10(d).)
On or about October 28, 2008, CS-1 met in Honduras with another co-conspirator ("CC-2") who identified himself as an associate of Yousef and CC-1. (Id. ¶ 10(g).) During that meeting, CC-2 called Yousef at the prison so that Yousef could participate in the meeting and speak with CS-1 regarding the logistics of the transaction. (Id.) The transaction was finalized at a meeting of CS-1 and CC-1 on or about October 29, 2008, with CS-1 agreeing to ...