United States v. Tajideen

319 F.Supp.3d 445

UNITED STATES of America,

v.Kassim TAJIDEEN, Defendant.

Criminal Case No. 17-46 (RBW)

United States District Court, District of Columbia.

Signed August 10, 2018

Joseph Palazzo, U.S. Department of Justice, Luke Matthew Jones, U.S. Attorney's Office for the District of Columbia, Thomas A. Gillice, Jacqueline Lauren Barkett, Maia Luckner Miller, U.S. Attorney's Office National Security Section, Deborah A. Curtis, U.S. Department of Justice NSD Counterespionage Section, Karen Patricia Seifert, United States Department of Justice U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Chibli Mallat, Mallat Law Offices, Beirut, Lebanon, David W. Bowker, Wilmer Cutler Pickering Hale & Dorr LLP, William W. Taylor, III, Eric Robert Delinsky, Steven N. Herman, Zuckerman Spaeder, LLP, Mathew Jones, Ronald Meltzer, Washington, DC, Paul G. Cassell, Paul Cassell, Salt Lake City, UT, William James Murphy, Zuckerman Spaeder, LLP, Baltimore, MD, for 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 dismiss¹ 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. "[0]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 President's 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, 104 S.Ct. 3026, 82 L.Ed.2d 171 (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...