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

June 12, 2012

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.

nationalsecuritylaw United States v. Khan (N.D. Ill. June 8, 2012) (7.5 year sentence for attempted material support to AQ in the form of money given to Ilyas Kahsmiri)

June 8, 2012

From DOJ’s press release:

CHICAGO – A Chicago man who personally provided hundreds of dollars to an alleged terrorist leader with whom he had met in his native Pakistan was sentenced today to 7½ years in federal prison for attempting to provide additional funds to the same individual after learning he was working with al-Qaeda.

The defendant, Raja Lahrasib Khan, a Chicago taxi driver and native of Pakistan who became a naturalized U.S. citizen in 1988, pleaded guilty in February to one count of attempting to provide material support to a foreign terrorist organization, following his arrest in March 2010.

Khan, 58, displayed “toxic altruism” U.S. District Judge James Zagel said in imposing the 90-month sentence, followed by lifetime supervised release. In addition, the judge said it was a “profoundly aggravating factor” that Khan’s crime occurred after he voluntarily chose to become a naturalized U.S. citizen.

Although Khan’s actual donations (approximately $500 to $550) and attempted donation ($1,000) were, relatively speaking, not incredibly substantial amounts, donations need not be large to be of assistance to terrorist organizations, the government argued, and the judge noted as well.

Khan’s plea agreement called for an agreed sentence of between five and eight years in prison, and it requires Khan to cooperate with the government in any matter in which he is called upon to assist through the termination of his sentence and any period of supervised release.

The sentence was announced by Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois, and Robert D. Grant, Special Agent-in-Charge of the Chicago Office of the FBI.

Khan, who was born and resided in the Azad Kashmir region of Pakistan before immigrating to the United States in the late 1970s, admitted that he met with Ilyas Kashmiri, a leader of the Kashmir independence movement, in Pakistan in the early to mid-2000s and again in 2008. At the time of the second meeting, Khan knew or had reason to believe that Kashmiri was working with al-Qaeda, in addition to leading attacks against the Indian government in the Kashmir region. During their 2008 meeting, Kashmiri told Khan that Osama bin Laden was alive, healthy and giving orders, and Khan gave Kashmiri approximately 20,000 Pakistani rupees (approximately $200 to $250), which he intended Kashmiri to use to support attacks against India.

On Nov. 23, 2009, Khan sent approximately 77,917 rupees (approximately $930) from Chicago to an individual in Pakistan, via Western Union, and then directed the individual by phone to give Kashmiri approximately 25,000 rupees (approximately $300). Although Khan intended the funds to be used by Kashmiri to support attacks against India, he was also aware that Kashmiri was working with al-Qaeda.

In February and March 2010, Khan participated in several meetings with an undercover law enforcement agent who posed as someone interested in sending money to Kashmiri to purchase weapons and ammunition, but only if Kashmiri was working with al-Qaeda, as well as sending individuals into Pakistan to receive military-style training so they could conduct attacks against U.S. forces and interests. On March 17, 2010, the undercover agent provided Khan with $1,000, which Khan agreed to provide to Kashmiri. Khan then gave the funds to his son, who was traveling from the United States to the United Kingdom, intending to later retrieve the money from his son in the U.K. and subsequently provide it to Kashmiri in Pakistan.

On March 23, 2010, Khan’s son arrived at an airport in the U.K. and a search by U.K. law enforcement officials yielded seven of the 10 $100 bills that the undercover agent had provided to Khan. After learning of his son’s detention, Khan attempted to end his involvement in the scheme to provide funds to Kashmiri by requesting an urgent meeting with another individual who was also present at Khan’s earlier meetings with the undercover agent. During their meeting, Khan demanded to return the undercover agent’s funds by providing $800 to this other individual.

The investigation was conducted by the Chicago FBI Joint Terrorism Task Force, with particular assistance from the Chicago Police Department, the Illinois State Police, and the Department of Homeland Security’s U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

The government is being represented by Assistant U.S. Attorneys Christopher Veatch and Heather McShain and Trial Attorney Joseph Kaster of the Counterterrorism Section of the Justice Department’s National Security Division.

nationalsecuritylaw Syracuse University/ABA Conference Invitation: The Intersection of National Security law and International Affairs

June 7, 2012

Jirga Email PDF.pdf

nationalsecuritylaw In re People’s Mojahedin Organization of Iran (D.C. Cir. June 1, 2012)

June 3, 2012

* A DC Circuit panel has issued an opinion giving the State Department four months maximum to make a final decision on PMOI’s petition to revoke its status as a designated foreign terrorist organization. The issue has been somewhat high profile, as that status is the predicate for material support liability under 18 USC 2339B and various immigration-law constraints…and because PMOI is an entity hostile to the government of Iran, with a considerable amount of support in Congress for its delisting. The key passages:

The AEDPA provides that the Secretary “shall make a determination” on a petition of revocation “[n]ot later than 180 days after receiving [the] petition.”8 U.S.C. § 1189(a)(4)(B)(iv)(I). It has been twenty months (approximately 600 days) since our remand and the Secretary has yet to make a final, reviewable decision. While a violation of a statutory deadline “does not, alone, justify judicial intervention,” In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C.Cir.1991), the Congress’s timetable “may supply content for th[e] rule of reason,” TRAC, 750 F.2d at 80–the “first and most important” of the TRAC factors. Core Commc’ns, 531 F.3d at 855. The specificity and relative brevity of the 180–day deadline manifests the Congress’s intent that the Secretary act promptly on a revocation petition and delist the organization if the criteria for the listing no longer exist. The Secretary’s twenty-month failure to act plainly frustrates the congressional intent and cuts strongly in favor of granting PMOI’s mandamus petition.FN4The Secretary argues that because she “must make a decision in this matter while carrying out duties of the most paramount importance, addressing nearly constant emergencies,” it would be “inappropriate” for us to rule that she “is not acting quickly enough on a single matter.”Opp’n to Mandamus Pet. 14. But the Congress undoubtedly knew the enormous demands placed upon the Secretary and nonetheless limited her time to act on a petition for revocation to 180 days, 8 U.S.C. § 1189(a)(4)(B)(iv)(I), and included explicit provisions for our review, id. § 1189(c)(3).

FN4. While the Act imposes a 180–day deadline to act, 8 U.S.C. § 1189(a)(4)(B)(iv)(I), that deadline is not directly applicable to this mandamus proceeding to enforce our own order of remand.

Additionally, the Secretary’s failure to act insulates her decision from our review under the AEDPA. As noted above, a FTO may, within thirty days, seek review of the Secretary’s denial of its petition for revocation in this Court. See id.§ 1189(c)(1) (“Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated organization may seek judicial review in the District of Columbia Circuit.”). By failing to make a final decision on PMOI’s petition, the Secretary is able to maintain PMOI’s designation while precluding PMOI from seeking judicial review. That is, because of the Secretary’s inaction, PMOI is stuck in administrative limbo; it enjoys neither a favorable ruling on its petition nor the opportunity to challenge an unfavorable one.

Decisive to us, however, is the fact that the Secretary has failed to heed our remand. In In re Core Communications, Inc., this Court highlighted the difference between an agency that simply fails to “respond[ ] to [a] request [ ] by [a] private part[y] to take administrative action” and one that fails to “respond to our own remand.” 531 F.3d at 856. In that case, we invalidated the Federal Communication Commission’s (FCC) inter-carrier compensation rules without vacating them because we “believ[ed] that there was a ‘non-trivial likelihood’ that the Commission would be able to state a valid legal basis for its rules” on remand. Id. at 861 (citation omitted). Six years later the rules remained in place and the FCC had yet to articulate a “valid legal basis.” Id. In response to the petitioners’ mandamus petition, we noted that, while the TRAC factors were “not unimportant,” id. at 855, our overriding concern was that the agency’s delay “effectively nullified our determination that [its] interim rules are invalid” and “insulated” the FCC’s rules from “further review” by making it impossible for the petitioners to “mount a challenge to the rules.” Id. at 856.We thus issued the writ vacating the rule, effective four months from the date of the opinion’s issuance “unless the court is notified that the [FCC] has complied with our direction before that date.” Id. at 861.

Here too, the Secretary has not merely failed to meet the AEDPA’s deadline or respond to the requests of the petitioner or a third party. She is failing to meet our remand mandate. And, here too, the delay has the effect of nullifying our decision while at the same time preventing PMOI from seeking judicial review. Although our remand opinion did not specify a deadline, neither did the remand order in Core Communications.We have been given no sufficient reason why the Secretary, in the last 600 days, has not been able to make a decision which the Congress gave her only 180 days to make. If the Secretary wishes to maintain PMOI’s FTO status, she can do so by simply denying PMOI’s petition.