United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.
Defendant, Arafat Nagi, is charged with two counts of
attempting to provide material support to the Islamic State
of Iraq and the Levant (ISIL),  a foreign terrorist organization,
in violation of 18 U.S.C. § 2339B(a)(1).
Defendant moves to dismiss the indictment, arguing that the
conduct charged-in effect, attempting to join ISIL-is
protected by the First Amendment. He also moves to suppress
evidence recovered from searches of his home and his email
account. Finally, he moves for a bill of particulars.
Judge Scott, to whom the Court referred this case for all
pretrial matters, recommends denying the Defendant's
motion to dismiss, as well as his motions to suppress. Judge
Scott also granted in part the Defendant's motion for a
bill of particulars. The Defendant has objected to Judge
Scott's recommendations, and the Government has appealed
Judge Scott's order directing particularization.
reasons stated below, the Court adopts Judge Scott's
recommendations to deny the Defendant's motions to
dismiss and to suppress. The Court also vacates Judge
Scott's order directing particularization.
Defendant is an American citizen who, before his arrest,
lived in Lackawanna, New York. The allegations in this case
are centered on two trips the Defendant took to Turkey in
2012 and 2014. The complaint alleges that the Defendant took
these trips not for the purpose of vacationing or visiting
family but, instead, with the intent of entering Syria and
Defendant made his first trip to Turkey in October 2012.
Docket No. 2 (Complaint) ¶ 14. The Defendant booked a
three-month trip to Turkey and Yemen (where the Defendant has
family), but his trip lasted only one day; after arriving in
Turkey, the Defendant returned to the United States when his
gallbladder “almost burst.” Id.
¶¶ 14, 16. The complaint suggests, however, that,
had the Defendant continued his trip, Yemen would not have
been his final destination. Rather, a message from the
Defendant's cousin (sent nearly one year after the
Defendant returned to the United States) asked the Defendant
“[h]ow was Syria and turkey?” Id. ¶
16. The Defendant responded that he had had to return to the
United States on an emergency flight. Id. The
Defendant's cousin then asked him why he “keep[s]
going to the Middle East with all these wars going on,
” to which the Defendant responded: “I'm good
not worried I wanted help the Syrian people I feel for them
walla my heart bleeds for them.” Id. ¶
Defendant made his second trip to Turkey on July 24, 2014.
Id. ¶ 12. The complaint alleges that, several
days after he arrived, the Defendant sent a message to his
sister using a cell phone app. The Defendant's sister
asked: “Well did you make it . . . Like with them or
wat . . . Yeah right, you hanging with them now . . . I was
really spectacle [sic] so was found cuz you weren't sure
so you finally with them . . . . I don't believe you with
them.” Id. ¶ 34 (ellipses in complaint).
The Defendant responded that he was “talking with them
for the first time . . . No not yet they are a fee [sic]
hours away from me . . . They gave me directions how to get
to them . . . But because of eid today there are no
buses.” Id. ¶ 35. The Defendant's
sister then told the Defendant that his brother “said u
coming back u went on vacation you not getting in.”
Id. ¶ 36. The Defendant responded that
“I'm only a few hours away from there . . . I
wouldn't waste money I don't have for a vacation
I'm not careless with money like [the Defendant's
brother].” Id. The complaint contends that
these conversations show that the Defendant traveled to
Turkey with the goal of entering Syria and joining ISIL.
Id. ¶ 37.
complaint also alleges that, the day after he spoke with his
sister, the Defendant spoke with his son. Specifically, the
complaint alleges that the Defendant sent his son a message
stating that “I talked them personally [sic] . . . Yea
I leave Tuesday to meet my friends because of eid everything
is closed no buses . . . In sha Allah we started joking with
each other already and my other friends told me they are
trustworthy.” Id. ¶ 38. The
Defendant's son responded: “Eid Mubarak. In sha
Allah Allah will grant you your destiny and make it easy for
you.” Id. The complaint again alleges that
this message shows that the Defendant's purpose in
traveling to Turkey was to enter Syria and join ISIL.
obtaining search warrants for the Defendant's personal
electronic devices, the Government “discovered records
of internet searches and cached images, executed and captured
during . . . [the Defendant's] 10 day stay in
Istanbul” in 2014. Id. ¶ 40. In
particular, on the Defendant's iPad the Government
located screen captures showing a search, on the website
booking.com, for a three-day stay in Iskenderun, Turkey, from
August 5, 2014 to August 8, 2014. Id. ¶ 41. The
Defendant also searched for travel information from Istanbul
to Hatay Province (the Turkish province in which Iskenderun
is located, id. n.9). Hatay Province, the complaint
states, “has become a pivotal location in the conflict
in Syria due to its geography and demography.”
complaint alleges that these activities show that the
Defendant did not intend to vacation in Turkey for ten days
before traveling to Yemen. Rather, the complaint alleges,
these facts show that the Defendant traveled to Turkey with
the goal of entering Syria and joining ISIL. For instance,
the complaint alleges, the Defendant researched travel to
Iskenderun for dates after he had planned to travel
to Yemen; he booked his trip from the United States to Yemen
as a single trip; and Iskenderun is an approximate 80-minute
drive from the Syrian border. Id. ¶ 43 &
n.9. The complaint alleges that this activity is consistent
with that of someone seeking to disguise his travel to Syria
with what appears to be legitimate travel: According to the
complaint, “individuals aspiring to join ISIL in Syria
are counseled to book tickets with alternate destinations and
layovers in strategic locations/countries in order to hide
the true nature of their travel, with no intent to fully
complete the final leg of the journey.” Id.
¶ 43. Finally, the complaint alleges that the Defendant
viewed ISIL-associated content-including ISIL-controlled
border crossing-on his iPad while he was researching travel
to Iskenderun. Id. ¶¶ 45, 46.
he was in Turkey, the Defendant also researched the Turkish
National Intelligence Organization. Id. ¶ 47.
The Government alleges that, after returning to the United
States, the Defendant told an associate that, while he was in
Istanbul, he believed he was being followed by “an
intelligence agency.” Id. ¶ 47. The
complaint contends that this “may” be the reason
why the Defendant did not actually enter Syria during his
2014 trip. Id. Rather, on August 4, 2014, ten days
after arriving in Turkey, the Defendant traveled to Yemen.
Id. ¶ 16.
Defendant returned to the United States on September 19,
2014. Upon his arrival, the Defendant informed Customs and
Border Protection (CBP) officers that he had traveled to
Istanbul for a ten-day vacation “to get away from
family”; that he had then continued on to Yemen to
visit an uncle; and that he does not support ISIL, Al Qaeda,
Al Qaeda on the Arabian Peninsula, or other mujahedeen
groups. Id. ¶ 13.
his return to the United States, the complaint alleges that
the Defendant had several conversations with an unnamed
associate. Specifically, the complaint alleges that the
Defendant told his associate that he was angry about the
killing of rebels in Yemen; that he believed the United
States was responsible for those killings; that he had
pledged an oath of allegiance to Abu Bakr al-Baghdadi, the
self-proclaimed Caliph of the Islamic State; that he agreed
with ISIL's tactics, such as killing innocent men, women,
and children, “believing that [such acts] were
justified because the victims were not Muslim”; that he
believed it was permissible for ISIL to burn a captured
Jordanian pilot; and that, in 2015, he intended to return to
Yemen, travel from Yemen to Turkey, and then travel from
Turkey to Syria. Id. ¶¶ 49-52.
the complaint details the Defendant's Internet activity
from August 2012 until September 2014.
the Government alleges that, from 2012 through 2013, the
Defendant purchased numerous pieces of combat gear from eBay,
such as a tactical vest with armor plates, combat boots,
camouflage clothing, a Shahada flag,  Kevlar “Hard Knuckle
Tactical Gloves, ” a “Military Style Outdoor
Mountaineering Backpack, ” a machete, a burn kit, and
night-vision goggles. Id. ¶19.
the complaint details Tweets and retweets found on the
Defendant's Twitter account. For instance, prior to his
2014 trip to Turkey, the Defendant tweeted his “pledge
to hear and obey Abu Bakr al-Baghdadi.” Id.
¶ 22. The Defendant also tweeted, among other things,
ISIL-related YouTube videos, messages promoting ISIL, photos
of dead Islamic State soldiers, photos of individuals being
beheaded, and photos of severed heads. Id.
¶¶ 22-29. Many of these Tweets were accompanied by
text, such as, “Oh, you who are defaming the Islamic
State, its soldiers shall be present at time of death. Those
who have brains ought think & learn”; and
“God is the Greatest. The three heads, those who dug
their graves by their own hands.” Id.
¶¶ 25, 28. The complaint also alleges that the
Defendant followed a number of Twitter handles “that
featured profile pictures of ISIL flags, photos of
al-Baghdadi or Osama bin Laden, photos of weapons or of
individuals in military fatigues, photos of recent
beheadings, or other images which could reasonably be
described as violent or terrorism-related in nature.”
Id. ¶ 23.
Defendant was arrested on a criminal complaint in July 2015.
A grand jury then handed an indictment charging him with two
counts of attempting to provide material support to ISIL, in
violation of 18 U.S.C. § 2239B(a)(1). During proceedings
before Judge Scott, the Government produced what both the
Government and the Defendant characterize as
“voluminous” discovery. See Docket No.
55 at 2; Docket No. 53 ¶ 3. For instance, the Government
produced a record of the Defendant's Twitter page; a
record of his eBay purchases; a copy of his Gmail account;
evidence from the Defendant's relative's house;
evidence recovered from a number of ...