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United States v. Nagi

United States District Court, W.D. New York

May 23, 2017

UNITED STATES OF AMERICA,
v.
ARAFAT NAGI, Defendant.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.

         The Defendant, Arafat Nagi, is charged with two counts of attempting to provide material support to the Islamic State of Iraq and the Levant (ISIL), [1] a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1).

         The 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.

         Magistrate 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.

         For the 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.

         BACKGROUND[2]

         The 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 joining ISIL.

         The 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. ¶ 17.

         The 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.

         The 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.

         After 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.” Id.

         The 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.

         While 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.

         The 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.

         After 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.

         Finally, the complaint details the Defendant's Internet activity from August 2012 until September 2014.[3]

         First, 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, [4] Kevlar “Hard Knuckle Tactical Gloves, ” a “Military Style Outdoor Mountaineering Backpack, ” a machete, a burn kit, and night-vision goggles. Id. ¶19.

         Second, 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.

         The 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 ΒΆ 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 ...


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