United States District Court, N.D. California
ORDER DENYING MOTION TO DISMISS RE: DKT. NO.
William H. Orrick, United States District Judge
Shafi is charged with violating 18 U.S.C. §
2339B(a)(1)attempting to provide material support (namely
himself) to the al-Nusrah Front, a foreign terrorist
organization. He argues here that the indictment should be
dismissed because it fails to allege sufficiently how he put
himself under the organization's direction or control,
which he contends is either an element or essential fact that
must be included in the indictment. It is neither. Shafi
knows what the government believes he was attempting to do
and how he was attempting to do it. The motion to dismiss the
indictment is DENIED.
THE CRIMINAL COMPLAINT.
30, 2015, the government filed a criminal complaint against
Shafi for one count of “attempt[ing] to provide
material support to a foreign terrorist organization, ”
as prohibited under 18 U.S.C. § 2339B. Compl. According
to the complaint, Shafi “disappeared” during a
family trip to Cairo, Egypt, in August 2014. Compl. ¶
15. His father reported Shafi's disappearance to the
United States embassy in Cairo, Egypt, explaining that Shafi
had not told anyone in the family where he was going. Comp.
¶¶ 15-16. His father also reported that subsequent
to his disappearance, Shafi sent a text message to a relative
that he had gone to “protect Muslims.” Compl.
¶ 15. Shafi's father was concerned that he had
“been recruited and that it was important to find him
quickly to prevent him from doing harm to himself or others
at the direction of those who recruited him.” Compl.
¶ 16. It was later revealed that Shafi had traveled to
Turkey. Compl. ¶ 18. He eventually rejoined his family
and returned to the United States. Compl. ¶ 17.
obtaining a warrant, the FBI conducted a search of
Shafi's e-mail account on December 2, 2014. Compl. ¶
22. The search revealed that once back in the United States,
Shafi began researching ways to reach Syria through Turkey.
Compl. ¶ 22-24. He had also e-mailed with others
regarding possible travel to Turkey. Compl. ¶ 22.
at home, Shafi led his two younger brothers in
“paramilitary style” training exercises,
including calisthenics, running through the neighborhood, and
“crawling through the mud at a park near their home in
Fremont, California.” Compl. ¶ 25. Shafi also
spoke with others via telephone, making statements such as
“I am completely fine with dying with [an unspecified
foreign terrorist organization], ” discussing living in
an area in Syria controlled by that foreign terrorist
organization, and condemning America as the enemy. Compl.
30, 2015, Shafi purchased a one-way ticket to Istanbul,
Turkey. Compl. ¶ 39. Prior to boarding, he was
intercepted by federal agents, who told him they
“needed to speak with him” and escorted him to an
interview room. Compl. ¶ 41. He told the agents that he
was traveling to Turkey because he no longer wanted to live
in the United States; he said that he had planned to inform
his parents once he arrived in Turkey. Compl. ¶ 42.
after that, a different federal agent conducted another
interview with him. Compl. ¶ 43. Shafi reiterated his
desire to move to Turkey. Compl. ¶ 43. The agent asked
him if he was traveling to Turkey so that he could cross into
Syria and join a foreign terrorist organization. Compl.
¶ 43. Shafi denied this, but noted that there were many
refugees in Turkey; he said he would try to help the refugees
if he could. Compl. ¶ 43. He said that some people
“helped by building a house, while others picked up a
gun.” Compl. ¶ 43. When the agent asked Shafi if
he intended to travel to Turkey so he could “pick up a
gun” and become a fighter, Shafi said no. Compl. ¶
43. With Shafi's consent, the agent then conducted a
search of Shafi's backpack, . Compl. ¶ 44. The agent
found personal items along with a copy of the Quran and a
“small paper- back book of Islamic prayers, ”
among other things. Compl. ¶ 44.
completing the interview and search, the agents escorted
Shafi out of the airport to public transit so that he could
return to his family's home. Compl. ¶ 45. On his way
home, Shafi made a phone call that was intercepted by the
government. He related his experience at the airport with the
agents and expressed that only some “kind of
idiot” would say yes in response to the questions asked
by the agents regarding his intentions to travel to Syria in
order to join a foreign terrorist organization. He then made
another phone call, where he expressed similar sentiments
about the questions asked by the agents. The person Shafi
called asked if he could say where he intended to travel;
Shafi responded, “You know where I was going to go . .
. I was going to Turkey.” Compl. ¶ 48.
February 9, 2017, Shafi moved to dismiss the indictment
because it fails to state an essential element of the offense
of material support. Motion [Dkt. No. 123] at 3. He claims
that an essential element of “material support”
to a terrorist organization in the form of personnel is that
the personnel must be under the “direction or
control” of that terrorist organization. Id.
at 6. He asserts that neither the criminal complaint nor the
indictment state facts to indicate that he attempted to place
himself under the “direction or control” of, or
attempt to “organize, manage, supervise, or otherwise
direct the operation of” a “foreign terrorist
organization.” 18 U.S.C. § 2339B(h); Compl.; Dkt.
argues in the alternative that if the “direction or
control” provision is merely affirmative defense that
does not need to be pleaded in the indictment, I should
require the government at trial to prove beyond a reasonable
doubt that Mr. Shafi acted under the “direction or
control” of a terrorist organization. Id. at
government opposed, arguing that: (i) the indictment contains
all essential elements of attempting to provide material
support for a foreign terrorist organization, Opposition
[Dkt. No. 133] at 2; (ii) subsection (h) is a
“definitional provision” and not an
“essential element” of the offense, id.
at 3-10; and (iii) it need not prove that Shafi acted under
the “direction or control” of a foreign terrorist
organization at trial. Id. at 11-12.
reply, Shafi advanced two new arguments. Reply [Dkt. No.
134]. First, he contends that the rule of lenity requires
that subsection (h) be construed as an element of the offense
and that it must be pleaded in the complaint. Second, he
asserts that regardless of whether the requirements of
subsection (h) are elements of the offense or merely
definitional, they must be pleaded in the complaint because
otherwise the indictment is unconstitutionally vague. Reply
of the Federal Rules of Criminal Procedure requires an
indictment to be “a plain, concise and definite written
statement of the essential facts constituting the offense
charged.” Fed. R. Crim. P. 7(c)(1). To be sufficient,
an indictment must “(1) contain[ ] the elements of the
offense charged and fairly inform[ ] a defendant of the
charge against him which he must defend; and (2) enable[ ]
him to plead an acquittal or conviction in bar of future
prosecutions of the same offense.” United States v.
Lazarenko, 564 F.3d 1026, 1033 (9th Cir. 2009) (internal
quotation marks omitted). However, an indictment that tracks
the language of the statute charging the offense is
sufficient if it unambiguously sets forth all of the elements
necessary to constitute the offense. United States v.
Givens, 767 F.2d 574, 584 (9th Cir. 1985).
indictment fails to include an essential element of the
charged offense, it must be dismissed. United States v.
Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). An
indictment may also be dismissed if it contains an error and
there is “some evidence that the error misled the
defendant to the defendant's prejudice.” United
States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007).
may raise “by pretrial motion any defense, objection,
or request that the court can determine without a trial on
the merits.” Fed. R. Crim. P. 12(b)(1). When
considering such a motion, the Court accepts the allegations
of the indictment as true. United States v. Blinder,
10 F.3d 1468, 1471 (9th Cir. 1993). The indictment
“should be read in its entirety, construed according to
common sense, and ...