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United States v. Afshari

April 14, 2009


The opinion of the court was delivered by: David O. Carter United States District Judge


This matter has come before the Court on: Defendants' Motion to Dismiss Counts 59-117 for Violating the Ex Post Facto Clause and Being a Bill of Attainder, Defendants' Motion to Dismiss No. 1; Defendants' Motion to Dismiss Counts 59-117 Pursuant to the First and Sixth Amendments, Defendants' Motion No. 2; and Defendants' Motion to Dismiss Counts 60-82 for Alleging Only Solicitation but not Material Support, Defendants' Motion No. 11, filed by Defendants Roya Rahmani, Alireza Mohammadmoradi, Moustafa Ahmady, Hossein Kalani Afshari, Hassan Rezaie, Navid Taj, and Mohammad Hossein Omidvar ("Defendants").

Counts 59-117 (the "material support counts") of the Second Superseding Indictment (the "Indictment"), charge Defendants with providing material support to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B. Having considered the record herein, including oral argument, the Court finds as follows: Facts and Procedural History*fn1

The Indictment alleges that beginning on October 8, 1997 though February 27, 2001, Defendants provided material support to the Mujahedin-e Khalq ("MEK") by soliciting donations from unwitting donors at airports, such as the Los Angeles International Airport ("LAX") and other public places, and by making financial contributions to the MEK.*fn2

According to the Indictment, Defendants knowingly combined, conspired, and agreed to provide material support and resources to the MEK knowing that the MEK had been designated as a foreign terrorist organization ("FTO").*fn3

Specifically, the Indictment alleges that Defendants Rahmani, Mohammadmoradi, Ahmady, Afshari, Rezaie, Taj and Omidvar, knowingly combined, conspired, and agreed to provided material support to a foreign terrorist organization by soliciting contributions on behalf of the MEK. Indictment ¶ 69. The Indictment alleges that Defendant Rahmani was the leader of the Los Angeles MEK cell, and directed fundraising activities and solicited donations for the MEK from various individuals. Indictment ¶ 19. It also alleges that the fund-raising activities in the Central District of California were organized and controlled by a Los Angeles-based designated cell leader, that the Los Angeles cell leader received directions and guidance from the MEK about MEK activities in the Los Angeles area, and that as the cell leader, Defendant Rahmani communicated with MEK leadership, Indictment ¶ 35. The Indictment further alleges that some of the Defendants solicited donations from unwitting donors at LAX. Indictment ¶ 36. In soliciting donations, Defendants claimed to unwitting donors that they were raising money for victims of natural disasters, victims of torture, orphans, refugees, or starving children, when in fact, as they knew, they were raising money for the MEK. Some of the Defendants donated money to the MEK.

The MEK, also known as the People's Mojahedin Organization of Iran (the "PMOI"), and the National Council of Resistance of Iran (the "NCRI") controlled a number of terrorist training camps and bases inside Iraq. The MEK also produced television programs, which were edited in Los Angeles, using footage obtained at the MEK camps inside Iraq and which solicited people to join the MEK. The MEK also published and distributed a newspaper called the "Mojahed," which reported on the activities of the MEK. The MEK used the money obtained from fundraising efforts, including those from Defendants, to fund the operations and activities of the MEK, including its terrorist activities.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214-1319 (1996) in order to inter alia, address concerns regarding international terrorism. The statute which Defendants are charged with violating, 18 U.S.C. § 2339B, was designed to cut off monetary and other support for such terrorist activities by prohibiting persons from knowingly providing material support and resources to foreign terrorist organizations. 18 U.S.C. § 2339B (1996). The AEDPA "conferr[s] upon the Secretary of State the power to designate "foreign terrorist organizations" ("FTO"). People's Mojahedin Organization of Iran v. Dept's of State ("PMOI I"), 182 F.3d 17, 18-19 (1999). The designation of an organization as an FTO lasts two years.

On October 8, 1997, the Secretary of State Madeline K. Albright designated the MEK as a Foreign Terrorist Organization. PMOI I, 182 F.3d at 18. In 1999, the MEK challenged the designation before the Court of Appeals in the District of Columbia. Id. Although the D.C. Circuit found that the MEK, "[a] foreign entity without property or presence in this country had no constitutional rights, under the due process clause or otherwise," the D.C. Circuit concluded that the record before the Secretary of State contained "substantial support for her findings" that the MEK was an FTO. Id. at 24-25. The D.C. Circuit "refuse[d] to set aside . . . [the] designation. Id.

On October 8, 1999, the Secretary designated the MEK as an FTO for the following two years, and added the National Council of Resistance of Iran ("NCRI") as an alias or alter ego of the PMOI. National Council of Resistance of Iran ("NCRI") v. Dep't of State, 251 F.3d 192, 197 (2001). Because the D.C. Circuit found that the MEK, unlike before, had presence in the United States, the D.C. Circuit found that while "the designation was in compliance with the statute, . . . the statute does violate the due process rights of the [MEK] under the Fifth Amendment" NCRI at 196. The D.C. Circuit, however, did not "order the vacation of the existing designations, but rather remand[ed] the questions to the Secretary with instructions that the [MEK] be afforded" the due process the D.C. Circuit found was due to the organization. Id. at 209.

In June 21, 2002, the Honorable Robert M. Takasugi, District Court Judge, granted Defendants' motion to dismiss an indictment charging Defendants with the same counts as are the subject of the present motions. United States v. Rahmani, 209 F.Supp.2d 1045 (2002). Judge Takasugi found that the statute establishing the procedure whereby an organization is designated by the Secretary of State as a "foreign terrorist organization" was facially unconstitutional under the Due Process Clause of the Fifth Amendment. On appeal, the Ninth Circuit reversed Judge Takasugi and remanded the matter for further proceedings. United States v. Afshari, 426 F.3d 1150 (2005) . On November 27, 2007, the Government filed the Indictment, realleging the material support counts.

On February 23, 2009, the case was transferred to this Court.

The Relevant Statutory Framework Under the AEDPA, the Secretary of State is authorized to designate an organization as an FTO if it is a foreign organization that engages in a terrorist activity that threatens the security of United States nationals or the national security of the Untied States.*fn4

Judicial review of a designation may be had only in the Court of Appeals for the District of Columbia ("D. C. Circuit") and only the organization itself may challenge the designation.*fn5

Under 8 U.S.C. § 1189(b), if judicial review is sought, the D.C. Circuit is to review the administrative record, including ex parte and in camera classified information submitted by the Government, to determine if the court finds the Secretary of State's designation to be --

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the ...

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