United States District Court, S.D. California
ORDER DENYING MOTION TO DISMISS INDICTMENT
JEFFREY T. MILLER, District Judge.
Defendant Abdiaziz Hussein moves to dismiss the indictment based upon outrageous government conduct, selective prosecution, vindictive prosecution and the court's inherent supervisory powers. The Government opposes the motion. For the reasons set forth below, the court denies the motion in its entirety.
On April 23, 2013, Defendant was charged in a four-count indictment with one-count of conspiracy to avoid recordkeeping requirements, to maintain records, and to file SARs ("Suspicious Activity Reports "), and three-counts of evading the reporting and recordkeeping requirements of 31 U.S.C. §§5313(a), 5324(a)(3), 5325 and 31 C.F.R. §103.33. The charges allegedly arise from Defendant's conduct as general manager of Shidaal Express, a money service business owned by Mohamud Ahmed, with two locations in San Diego that primarily served customers from Somalia and other East African nations. (Indictment ¶2). The central allegation against Defendant is that he structured several money transfer transactions to avoid federal reporting requirements by listing false names of the senders and/or the recipients of the monetary transfers.
Shidaal Express, a domestic financial institution, was the entity used by the defendants in United States v. Moalin, et al., No. 10cr4246 JM, to transfer money to Somalia. The operative Second Superseding Indictment in Moalin, filed on June 8, 2012, alleged five counts against Defendants Basaaly Moalin, Mohamed Mohamed Mohamud, Issa Doreh, and Ahmed Nasir Taalil Mohamud: (1) conspiracy to provide material support to terrorists in violation of 18 U.S.C. §2339A(a); (2) conspiracy to provide material support to a foreign terrorist organization in violation of 18 U.S.C. §2339B(a)(1); (3) conspiracy to launder monetary instruments in violation of 18 U.S.C. §1956(h); (4) providing material support to terrorists in violation of 18 U.S.C. §2339A(a); and (5) providing material support to a foreign terrorist organization in violation of 18 U.S.C. §§2339B(a)(1) and (2). (Ct. Dkt. 147). On February 22, 2013, the jury found Defendants guilty on all Counts charged in the Superseding Indictment.
Defendant's Proffer in Support of His Motions
In support of his motions, Defendant submits his declaration, an amended declaration, the declaration of counsel, and a proffer agreement provided in discovery. Defendant represents that, in 2009, he was contacted by the FBI and initially declined to speak with them. On November 5, 2010, Defendant received a grand jury subpoena and was provided with appointed counsel. He was advised by counsel not to invoke his 5th Amendment rights. He was also advised to meet with Assistant United States Attorneys ("AUSA") William Cole and Caroline Han. He spoke with FBI agents and the AUSAs on two occasions for about 16 hours. (Ct. Dkt. 47; Hussein Decl. Exh.2). During these interviews, he was "told they did not want to ruin my life and promised that I would not be prosecuted if I cooperated. The government requested additional meetings and I declined indicating that I had nothing else to offer." (Hussein Decl. ¶¶6, 7).
On December 29, 2010, Defendant and the Government entered into a Proffer Agreement wherein the parties agreed that the Government would not use any statements made by Defendant during the proffer process against him except to discover other evidence or for impeachment purposes. (Ct. Dkt. 47; Hussein Decl. Exh.4). The Proffer Agreement only applied to statements made by Defendant during the proffer sessions. Id.
Motion to Dismiss for Outrageous Government Conduct
Defendant argues that the Government engaged in outrageous conduct by (1) using the threat of a grand jury subpoena to compel his attendance at interviews; (2) the promise of no consequences if he talked to the prosecutors; and (3) the "punishment" of an embarrassing and humiliating arrest and to face charges for violation of currency regulations.
"Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed." United States v. Montoya , 45 F.3d 1286, 1300 (9th Cir. 1995) (citing Hampton v. United States , 425 U.S. 484 (1976); United States v. Russell , 411 U.S. 423, 431-32 (1973)). Under the "extremely high standard" of this doctrine, an indictment should be dismissed "only when the government's conduct is so grossly shocking and so outrageous as to violate the universal sense of justice." Id . (quoting United States v. Garza-Juarez , 992 F.2d 896, 904 (9th Cir. 1993)).
Here, the Government's conduct is not so severe as to shock the universal sense of justice. Whether, under the totality of the circumstances, the Government prefers, favors, pressures, or cajoles a witness to choose between an interview and grand jury testimony, no constitutional violation arises from such conduct. Similarly, the fact that Defendant was arrested while in a state of semi-undress and placed in view of female relatives does not violate any identifiable constitutional right. While many defendants may indeed prefer to self-surrender to avoid the stigma of a public arrest, the constitution is not violated when the police, with a validly issued warrant, arrest an individual while the individual is found in the bathroom partially clothed.
Defendant next contends that there was an enforceable contractual obligation on the part of the Government to refrain from prosecuting Defendant. Notably, there is no evidence to support this argument. Defendant declares that Government agents "promised that I would not be prosecuted if I cooperated." (Hussein Decl. ¶6). The next paragraph establishes that Defendant did not cooperate with the Government agents. Defendant declares that the "government requested additional meetings and I declined indicating that I had nothing else to offer." (Id. ¶7). The fact that Defendant declined all further requests to meet with Government agents demonstrates that he did not fully cooperate as allegedly promised and therefore did not satisfy the condition that he fully cooperate with the Government. Moreover, the Proffer Agreement itself undermines Defendant's claim that he would not be prosecuted if he cooperated. The Proffer Agreement specifically limits the use of any statements made by Defendant during the proffer session. However, the Agreement specifically noted that any statement made by Defendant during the proffer session could be used for impeachment purposes at the time of trial or that the statements could be used to discover additional evidence. ...