nationalsecuritylaw United States v. Rana (N.D. Ill. June 7, 2012) (denial of post-conviction motions in Mumbai-related prosecution)

Tahawwur Hussain Rana was convicted of providing support to Lashkar e-Taiba (18 USC 2339B) and conspiring to provide support to a group planning to commit murder in Denmark, but was acquitted of conspiring to support the Mumbai terrorist attack of 2008. Post-trial, he moved for a new trial on various grounds, all of which were rejected in a ruling on June 7. The Court held that:

– Rana was not prejudiced by the court’s refusal to sever the Denmark and Mumbai charges

– the FISA “significant purpose” test does not violate the Fourth Amendment

– there had been probable cause to support the search of Rana’s home and business, and his contemporaneous arrest, notwithstanding statements from co-conspirator David Headley that Rana was innocent

Rana also lost on his motion for acquittal, for these reasons explained below. From the court’s opinion:

In the two bills of particulars, the Government accused Rana of conspiring to provide: personnel (himself and Headley), money (Headley’s living and travel expenses), tangible property (including memory cards for surveillance footage), and expert advice and assistance (by offering his immigration business and expertise as cover for Headley). Rana argues that the Government proved none of these.

To the extent that Rana intended to argue that there was a fatal variance between the second bill of particulars (which does not mention the business cards) and his conviction, and not merely to challenge the sufficiency of the evidence, he has failed to explain how the omission prejudiced, for example, his ability to prepare his defense. See United States v. Hach, 162 F.3d 937, 947–48 (7th Cir.1998). The Court therefore considers his sufficiency challenge below.

Taken in the light most favorable to the Government, the evidence here allowed a rational jury to convict Rana on Count 11. David Headley undisputedly plotted to attack the Jyllands Posten newspaper in Denmark, to punish it for publishing cartoons of the Prophet Mohammed. Headley testified that he kept Rana apprised of his plans, and that Rana not only approved but assisted with his cover. See TR. 334–75, 1149–50, 1151. The Government presented evidence that a jury could find corroborated parts of that testimony—for example, the business cards that Rana had printed in Headley’s name (ostensibly to further his cover), e-mails from Headley to Rana that the jury could conclude were coded references to the Denmark surveillance, and Rana’s responses to and acknowledgment of some of those messages. See, e.g., GX ILC 2; GX 1–19–09C; GX 1–19–09 A; GX 1–20–09D; GX 1–20–09E; GX 1–23–09A DH/TR.

As to the importance of the business cards, the Government introduced a “to-do” list from Headley’s meetings with his alleged Lashkar handler, which lists immigration work as a potential cover for the surveillance and noting a need for business cards. TR. 325–334; GX 12–07–08 DH. (Indeed, Headley testified that, though he was not certain in advance that he would need them, he used the cards to access the newspaper facilities. TR. 364–69, 839–42.) The jury could also have found that, when he received an e-mail from Jyllands Posten advertising personnel, Rana responded by impersonating Headley in order to further Headley’s cover. See GX 1–29–09A TR/LBA.

Similarly, a reasonable jury could have found beyond a reasonable doubt that Rana understood what Headley was up to. For example, in addition to the evidence listed above, the jury could have reasonably:

•concluded that Headley and Rana’s recorded conversation (TR. 635–36) showed Rana’s awareness of Headley’s true intentions and targets;

• rejected Rana’s innocent explanations for creating several coded e-mail accounts (anonymous or otherwise);

• concluded that in September 2009, Rana asked Pasha (a one time Lashkar member, later allegedly associated with other terrorist groups) in code whether he was an informant. See GX TR 9–4–09;

• found that, even accepting Headley’s testimony that Rana’s lying to the Pakistani general consul to get Headley a visa served no conspiratorial purpose, see TR. 1005–08, those lies showed Rana’s awareness that Headley needed to hide his original identity; and

• rejected Rana’s claim that he truly believed that Headley traveled all the way to Denmark in substantial part to place an advertisement in a newspaper that he loathed. Furthermore, the jury reasonably could have been skeptical that Rana believed that Headley legitimately needed to obtain ad information by visiting two offices of the same newspaper, just to get the same information that he might have by either calling or e-mailing from the United States.

This evidence, together with Rana’s post-arrest statements and the record as a whole, could allow the jury to rationally conclude that Rana was aware of Headley’s true intentions and helped him anyway. Accordingly, a rational jury could have concluded that Rana knowingly conspired to (and did) provide material support to the Denmark plot by furnishing Headley with business cards and supporting his business cover, and by providing Headley with logistical support for his travels and plots.

Rana’s argument to the contrary hinges on a faulty assumption. He notes that Headley testified that Rana was involved in the Mumbai plot. Therefore, he argues, by acquitting Rana of Count 9 and under Count 12’s special interrogatory (see infra, at P. 16–17) despite that testimony, the jury rejected all of Headley’s testimony as not credible. That sort of speculation, however, is impermissible. United States v. Nobles, 69 F.3d 172, 188–89 (7th Cir.1995) (citing United States v. Powell, 469 U.S. 57, 66 (1984)). The Court will not reverse the jury’s choice to credit important testimony despite knowing the many faults of the individual providing it. See United States v. Moore, 425 F.3d 1061, 1073 (7th Cir.2005).

Rana’s argument that Headley’s dishonesty infected too much of the remaining evidence must likewise be rejected. The jury was free to accept or reject Headley’s interpretations of the evidence, including his interpretations of allegedly coded messages and his suggested changes to the translation of certain evidence, in light of all of the evidence before it.

Finally, though Rana rehashes the exculpatory evidence and explanations that he offered at trial, the Court cannot agree that they so eviscerated the Government’s case as to preclude a finding of guilt. As noted, the jury was offered two disparate pictures of Rana, and counsel for both sides capably tested and criticized each other’s cases. Taking the evidence in the light most favorable to the Government, as the Court must, a rational jury nonetheless could have convicted Rana of Count 11.

B. Count 12

Under Count 12, the Government had to prove that Rana knowingly provided (or attempted or conspired to provide) material support or resources to a foreign terrorist organization. 18 U.S.C. § 2339B. The Government had to prove that Rana knew that Lashkar was a designated terrorist organization, or that it engaged in terrorist activity. Id. The bills of particulars accused Rana of giving Lashkar personnel, currency, tangible property, expert advice and assistance, and false documentation and identification. Under § 2339B, “personnel” must organize, supervise or direct the terrorist organization, or work under its direction or control; they cannot simply work independently to further the organization’s goals. 18 U.S.C. § 2339B(h).

As noted above, the jury convicted Rana on Count 11, relating to the Denmark plot, and acquitted him on Count 9, relating to the Mumbai plot. Count 12 alleged that Rana provided material assistance to Lashkar between late 2005 and October 3, 2009—a time period encompassing both the Mumbai and Denmark plots. See also TR. 1694 (jury instruction). Both bills of particulars incorporated by reference the alleged material assistance under Counts 9 and 11 into Count 12. Unlike the general provisions of Count 12, however, its special interrogatory specifically asked whether any deaths had resulted from Rana’s actions relating to the Mumbai plot. See TR. 1698. Because the jury acquitted Rana on Count 9 and with the special interrogatory finding under Count 12, Rana argues that it conclusively rejected the claim that he supported the Mumbai plot, and that his conviction under Count 12 must rely on the Denmark evidence alone.

Even assuming for the sake of argument that the jury’s findings disposed of any allegations of material support for Lashkar relating to plots in India, his conviction under Count 12 must stand. A rational jury could have found that he supported Lashkar by assisting Headley in the Denmark plot during the time that Lashkar was behind it.

First off, there seems to be little dispute that Rana knew that Lashkar was a designated terrorist organization and/or engaged in terrorism. If it accepted Headley’s testimony, the jury could also have found that Lashkar backed the Denmark plot from late 2008 through February 2009, and that Rana knew of Lashkar’s involvement. TR. 353–54, 362–68, 398–99. If the jury so found, then the evidence described above relating to Count 11 (which supports a finding that Rana knowingly provided business cards, cover, and logistical assistance to the Denmark plot in January 2009) would also prove that Rana provided material assistance to Lashkar.

From this evidence, as well as the record as a whole, the Court cannot conclude that a rational jury could not have convicted Rana of knowingly providing material support to Lashkar in that he (at least) provided business cards and his own direct assistance to further Headley’s cover during the time that Lashkar was behind the plot to attack the newspaper. That Headley pursued the plan with other terrorist groups after Lashkar backed off does nothing to undermine the fact that Rana materially supported the scheme while Lashkar sponsored it.

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