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United States v. Tajideen

United States District Court, District of Columbia

August 10, 2018

UNITED STATES OF AMERICA,
v.
KASSIM TAJIDEEN Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE.

         A federal grand jury has indicted the defendant on the following charges: (1) one count of conspiracy to conduct unlawful transactions and cause United States persons to conduct unlawful transactions with a Specially-Designated Global Terrorist ("SDGT") and to defraud the United States by dishonest means; (2) nine counts of unlawful transactions with a SDGT; and (3) one count of conspiracy to commit money laundering. See generally Superseding Indictment ("Indictment"), ECF No. 89. The defendant has filed seven separate motions to dismiss[1]challenging various aspects of this prosecution and seeking dismissal of the Indictment in its entirety, all of which are ripe for consideration by the Court.[2] Additionally, the defendant has requested an evidentiary hearing regarding one of these seven motions to dismiss. See Request for Evidentiary Hearing on Defendant's Motion to Dismiss Pursuant to Rule of Specialty ("Def.'s Request"), ECF No. 137. Upon consideration of the parties' submissions, [3] the Court concludes that it must deny each of the defendant's motions to dismiss the Indictment, as well as his request for an evidentiary hearing.[4]

         I. BACKGROUND

         A. Factual Background

         On May 27, 2009, the defendant was publicly designated by United States Department of the Treasury's Office of Foreign Assets Control ("the OFAC') as a SDGT. See Government's Response to Defendant's Motion to Compel Discovery of Rule 16 and Brady Material (''Gov't's Resp.") at 6, ECF No. 31. "The designation blocks all assets of a designee and prohibits, inter alia, [United States] persons from knowingly participating in transactions with, or for the benefit of, the defendant without first obtaining a license from [the] OFAC." Id. at 7. Thereafter, "[o]n, July 22, 2010, the defendant filed an application with [the] OFAC, . . . seeking his removal from the SDGT list." Id. The defendant continued to seek his delisting from the SDGT list, see Id. at 8 (discussing his various efforts to have [the] OFAC remove him from the SDGT list), until May 4, 2017, when he withdrew his delisting application, see id.

         "On March 7, 2017, a Grand Jury in the District of Columbia returned an Indictment charging the defendant with Conspiracy to Violate the International Emergency Economic Powers Act ('[the] IEEPA') and the Global Terrorism Sanctions Regulations ('[the] GTSR'), and to Defraud the United States; substantive violations of [the] IEEPA; and with conspiracy to launder monetary instruments." Gov't's 1st Opp'n at 5. "[O]n March 12, 2017, while traveling on business," the defendant "was detained in Morocco." Def.'s 7th Mot. to Dismiss at 2. "The [United States] Department of State submitted certified copies of [United States] Department of Justice papers, including the original indictment in this case, the arrest warrant, the applicable statutes, a summary of facts with an Arabic translation, and a photograph of [the defendant]" to Moroccan authorities. Id. at 3. The United States Department of State then "sent a diplomatic note to the Ministry of Foreign Affairs and Cooperation of the Kingdom of Morocco," which requested the defendant's extradition. Id. at 4. "[T]he Moroccan Court granted the government's extradition request, [and] on March 24, 2017, agents of the [United States] Drug Enforcement Agency transported [the defendant] to the United States." Id. at 5.

         B. Relevant Statutory Background

         1. The International Emergency Economic Powers Act

         Through much of the twentieth century, the United States utilized economic sanctions as a tool of foreign policy pursuant to the Trading with the Enemy Act ("the TWEA"). Passed in 1917, and amended in 1933, the TWEA granted the President broad authority to "investigate, regulate, . . . prevent or prohibit. . . transactions" "[d]uring the time of war or during any other period of national emergency declared by the President." 12 U.S.C. § 95a (1976). In 1977, )through the passage of the IEEPA, Congress further amended the TWEA. The IEEPA delineates "the Presidents authority to regulate international economic transactions during wars or national emergencies." S. Rep. No. 95-466, at 2 (1977). The IEEPA limits the TWEA's application to periods of declared wars and to certain existing TWEA programs, while the IEEPA is applicable during other times of declared national emergencies. See Regan v. Wald, 468 U.S. 222, 227-28 (1984) (discussing the statutory history of the two statutes). Under the IEEPA, the President can declare a national emergency "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." 50 U.S.C. § 1701(a) (2012). The IEEPA authorizes the President to

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.

Id. § 1702(a)(1)(B).

         2. Executive Order 13, 224

         Following the September 11, 2001 terrorist attacks on the United States, on September 23, 2011, President George W. Bush issued Executive Order 13, 224, declaring a national emergency with respect to the "grave acts of terrorism . . . and the continuing and immediate threat of further attacks on United States nationals or the United States." Exec. Order. No. 13, 224, 66 Fed. Reg. 49, 079, 49, 079 (Sept. 23, 2001). Through this Executive Order, President Bush invoked the authority granted to him under the IEEPA. see Id. § 1, and blocked all property and interests in property of twenty-seven foreign terrorists, terrorist organizations, and their supporters, each which were designated as SDGTs, id. annex.

         II. STANDARD OF REVIEW

         "Before trial, a defendant in a criminal case may move to dismiss an indictment on the grounds that it fails to state an offense . . . ." United States v. Hillie, 289 F.Supp.3d 188, 193 (D.D.C. 2018); see also Al Bahlul v. United States, 767 F.3d 1, 10 n.6 (D.C. Cir. 2014) ("Failure to state an offense is simply another way of saying there is a defect in the indictment. . . ."); Fed. R. Crim. P.12(b)(3)(B)(v) (providing that "a defect in the indictment. . ., including failure to state an offense," is a defense that "must be raised [ ] pretrial"). The district court's inquiry regarding a motion to dismiss is limited to "[t]he operative question [of] whether the allegations [in the indictment], if proven, would be sufficient to permit a jury to find that the crimes charged were committed." Hillie, 289 F.Supp.3d at 193 (first and third alterations in original) (quoting United States v. Sanford, Ltd., 859 F.Supp.2d 102, 107 (D.D.C. 2012)); see also United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C. 2009) (Walton, J.) (providing that the court's role "is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes" (emphasis, citation, and internal quotation marks omitted)). "Adherence to the language in the indictment is essential because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments returned by the grand jury." United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). Therefore, a district "court 'must presume the allegations of the indictment to be true, and may not dismiss an indictment on a determination of facts that should have been developed at trial, '" Hillie, 289 F.Supp.3d at 193 (quoting Sunia, 643 F.Supp.2d at 60).

         III. ANALYSIS

         A. The Defendant's Motion to Dismiss All Counts for the Alleged Violations of the IEEPA

         At the outset, the defendant seeks dismissal of all counts charging an IEEPA violation, on the basis that the IEEPA's

text makes clear that the President's emergency powers under [the] IEEPA cannot be used as they have been used here-to create a sprawling and permanent regulatory regime addressing of a multitude of different threats that bear absolutely no relation to the September 11 emergency that catalyzed the regime in the first place.

Def.'s 1st Reply at 1. From the defendant's perspective, "[t]his prosecution violates [the] IEEPA, '" Def.'s 1st Mot. to Dismiss at 2, because "[i]t is premised on an Executive Order that either exceeds the scope of the statute that authorized it or has been misapplied by the Treasury Department," Id. at 1; see also Def.'s 1st Reply at 2 (asserting that this motion seeks to "challenge ... a criminal prosecution based on the use of [the] IEEPA ... to create a permanent and general sanctions regime rather than a narrow emergency-based one"). In opposition, the government argues that the Court should deny the defendant's motion because it invites "the Court to dismantle a significant piece of the United States foreign policy and national security apparatus designed to reduce the threat from foreign terrorists." Gov't's 1st Opp'n at 3; see also Id. at 2 ("The defendant's theory is belied by the actions of Congress itself, by the inherent Constitutional authority of the Executive, and by case law supporting the broad authority of the Executive Branch in matters concerning foreign policy."). The Court agrees with the government.[5]

         Because the defendant's motion contends that Executive Order 13, 224 exceeds the scope of the IEEPA's statutory authorization, the Court's analysis must start with the plain language of the statute. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002) ("As in all statutory construction cases, [the Court] begin[s] with the language of the statute."). In conducting this analysis, the Court must first "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case," and its "inquiry ceases 'if the statutory language is unambiguous and the statutory scheme is coherent and consistent.'" Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). Here, the Court finds that the plain language of the IEEPA is unambiguous and that Executive Order 13, 224 soundly comports with the scope and boundaries of the statute.

         The President may avail himself of the broad authorities granted to him through the IEEPA if he declares a national emergency "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." 50 U.S.C. § 1701(a). The President's declaration of a national emergency to address an "unusual and extraordinary threat," id, however, is not all-encompassing and without limitation, as the IEEPA directs "[a]ny exercise of [ ] authorities to deal with any new threat [to] be based on a new declaration of national emergency." Id. § 1701(b). Thus, a President's declaration of a national emergency must be confined "to a specific set of circumstances which constitutes a real emergency, and for no other purpose." H.R. Rep. 95-459 at 10 (1977).

         Relevant to the parties' dispute, through Executive Order 13, 224, former President Bush "declare[d] a national emergency to deal with th[e] threat" stemming from the

grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the terrorist attacks in New York, Pennsylvania, and the Pentagon committed on September 11, 2001, . . . and the continuing and immediate threat of further attacks on United States nationals or the United States constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.

Exec. Order No. 13, 224, 66 Fed. Reg. at 49, 079. He also found "that because of the pervasiveness and expansiveness of the financial foundation of foreign terrorists, financial sanctions may be appropriate for those foreign persons that support or otherwise associate with these foreign terrorists." Id. And he concluded "that a need exists for further consultation and cooperation with, and sharing of information by, United States and foreign financial institutions as an additional tool to enable the United States to combat the financing of terrorism." Id. Consequently, "[t]hrough this Executive Order, President Bush invoked the authority granted to him under the IEEPA, and blocked all property and interests in property of twenty-seven foreign terrorises], terrorist organizations, and their supporters, each which were designated as SDGTs," Islamic Am. Relief Agency v. Unidentified FBI Agents, 394 F.Supp.2d 34, 42 (D.D.C. 2005) (Walton, J.) (citations omitted), which as the defendant here asserts, are all related to Al-Qaeda, see Def.'s 1st Mot. to Dismiss at 5-6.

         Against this backdrop, the defendant contends that the OFAC's "designation of Hizballah as [a Specially Designated National ('SDN')], and the subsidiary designation of [himself], cannot meaningfully be said to address the same 'threat' that motivated Executive Order 13, 224." Id. at 12; see also id. ("If Executive Order 13, 224 is so open-ended that it can support the government's designation and prosecution of [the defendant], then it is not the sort of narrowly-drawn emergency declaration that Congress authorized with [the] IEEPA."). However, contrary to the defendant's position, see Id. at 10-16, the OFAC's designation of Hizballah as a SDN and its designation of him as a SDGT pursuant to Executive Order 13, 224, fall squarely within the IEEPA's requirement that "any new threat be based on a new declaration of national emergency," 50 U.S.C § 1701(b). The Court so concludes because, although the adoption of Executive Order 13, 224 was motivated by the September 11, 2001 terrorist attacks, which were carried out by Al-Qaeda, there is no indication whatsoever that Executive Order 13, 224 limits its declaration of a national emergency to Al-Qaeda. Rather, the plain language of Executive Order No. 13, 224 clearly indicates that President Bush declared a national emergency with respect to the general threat of terrorism, not a specific terrorist group. See Exec. Order No. 13, 224, 66 Fed. Reg. at 49, 079 (providing "that grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the terrorist attacks . . . committed on September 11, 2001, . . . and the continuing and immediate threat of further attacks[, ] . . . constitute an unusual and extraordinary threat" (emphasis added)). In fact. Executive Order 13, 224 explicitly

authorizes the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, to designate additional [SDNs and] SDGTs whose property or interests in property should be blocked because they "act for or on behalf of or are "owned or controlled by" designated terrorists, or because they "assist in, sponsor, or provide . . . support for," or are 'otherwise associated' with them.

Islamic Am. Relief Agency, 394 F.Supp.2d at 42 (omission in original) (quoting Exec. Order No. 13, 224, § 1(c)-(d), 66 Fed. Reg. at 49, 079-80); see also id § 1(b), Fed. Reg. At 49, 079. Thus, the Court does not find that Executive Order 13, 224 exceeds the scope of the President's authority granted by the IEEPA. See Islamic Am. Relief Agency, 394 F.Supp.2d at 46 (concluding that the President's determination of "an unusual and extraordinary threat" in Executive Order 13, 224 was terrorism holistically, and, therefore the President properly invoked the broad authority granted to him under the IEEPA). Accordingly, the Court must deny the defendant's motion to dismiss all IEEPA counts predicated on the theory that the application of Executive Order 13, 224 has been unlawfully applied to him.[6]

         B. The Defendant's Motion to Dismiss All IEEPA Counts of the Indictment for Failure to Satisfy the "U.S. Person" Element

         Counts 1, 3 through 7, 9, and 10 of the Indictment each charge the defendant in some fashion with "causing U.S. persons to transact with [a] [SDGT]." Def.'s 2d Mot. to Dismiss at 1. The defendant contends that each of these counts should be dismissed '"[b]ecause [he] is not a U.S. person and thus cannot be prosecuted under the charged statutes and because, in any event, the allegations in the [ ] [I]ndictment do not show that he 'caused' violations of those statutes even if he were legally capable of doing so." Id. at 3. The government in response asserts that '"[a]n ordinary interpretation of the applicable law, as well as a plain reading of the Indictment, cause both arguments of the [d]efendant to fail." Gov't's 2d Opp'n at 3-4.

         The Court reiterates that resolution of the parties' dispute regarding this motion to dismiss turns on statutory interpretation, which, as the Court previously noted, must begin with the plain language of the IEEPA. See Barn hart. 534 U.S. at 450. With this principle guiding the Court's analysis, the Court finds the United States District Court for the Southern District of New York's analysis of the IEEPA's plain language regarding its applicability to non-United States persons in United States v. Zarrab, although not binding, to be particularly instructive. See Crim. Action No. 15-867 (RMB), 2016 WL 6820737, at *1 (S.D.N.Y. Oct. 17, 2016). In Zarrab, the defendant claimed that the IEEPA "d[id] not apply extraterritorially," and therefore, because he was a Turkish/Iranian person and not a United States person, the IEEPA provisions did not apply to him. See 2016 WL 6820737, at *8. Although the court noted that it did not need to reach "the question of whether the IEEPA . . . appl[ied] extraterritorially," id., the court concluded that the language of multiple provisions of the IEEPA "indicat[ed] that Congress intended the statute to be applied extraterritorially," Id. at *9. For instance, the court noted that § 1701(a) of the IEEPA "reads: 'Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual or extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." Id. (quoting § 50 U.S.C. 1701(a)); see also id. (citing Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528, 531 (D.C. Cir. 1993) for its holding that "the presumption [against extraterritoriality] is generally not applied where the failure to extend the scope of the statute to a foreign setting will result in adverse effects within the United States" (alteration in original)). In addition, the court noted that "§ 1702(a)(1)(B) grants the President broad powers, including the power to 'investigate, block during the pendency of an investigation, regulate, direct and compel . . . any property in which any foreign country or a national thereof has any interest. . . subject to the jurisdiction of the United States.'" Id ...


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