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United States v. Mohammad

United States District Court, N.D. Ohio, Western Division

May 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
YAHYA FAROOQ MOHAMMAD, Defendants.

          OPINION AND ORDER

          EDMUND A. SARGUS, JR., CHIEF JUDGE

         Defendants Yahya Farooq Mohammad ("Farooq") and Ibrahim Zubair Mohammad ("Ibrahim") have moved for the production and inspection of the grand jury minutes in this matter. For the following reasons, that Motion [ECF No. 84] is DENIED.

         I.

         Farooq and Ibrahim were indicted on September 30, 2015, along with their co-Defendants Asif Ahmed Salim and Sultane Roome Salim, and charged with (Count 1) conspiracy to provide and conceal material support to terrorists, in violation of 18 U.S.C. § 2339A; (Count 2) providing material support to terrorists, in violation of 18 U.S.C. § 2339A, (Count 3) conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (brought against Farooq and Ibrahim only); and (Count 4) conspiracy to obstruct justice, in violation of 18 U.S.C. 1512(k). (Indictment at 12-72 [ECF No. 1].)

         The Government accuses Defendants of conspiring to provide, and actually providing, funds and other material support to Anwar al-Awlaki for the preparation and execution of terrorist attacks and killings. (See Indictment at 12, 68.) The Government contends that Defendants conspired to obstruct its investigation into their illicit fundraising by making false statements to the FBI and destroying or concealing records. (Id. at 65-67, 71-72.) And as to Farooq and Ibrahim, the Government additionally alleges that they conspired to raise money for al-Awlaki through various fraudulent credit card and PayPal transactions. (Id. at 68-71.)

         On May 9, 2016, Farooq moved the Court for the production of the grand jury minutes in this matter. (Mot. for Inspection at 1 [ECF No. 84].) More specifically, he requested several orders:

(1) [an order] requiring disclosure and production of the entire minutes of the proceedings before the grand jury which returned the indictment in this matter; including, but not limited to, any instructions given to the grand jury regarding the necessary specific intent required for the material support to terrorism counts under 18 U.S.C. § 2339A vis-a-vis the lawful exercise of religion; or in the alternative, (2) [an order] requiring production of said minutes to the Court for its in camera inspection so as to determine whether the decision to indict was substantially influenced by improper instructions on the law which violated Defendant's aforesaid First Amendment rights; and/or (3) any other relief this Court, in the exercise of its supervisory powers, deems appropriate.

(Id.) Ibrahim later joined Farooq's request. (Second Mot. to Join Mots, at 1 [ECF No. 155].)

         Farooq and Ibrahim contend that the Government could not have obtained a grand jury indictment against them under 18 U.S.C. § 2339A without inaccurately instructing the grand jury on the law. (See Mot. for Inspection at 3, 9-10.) Section 2339A mandates the punishment of anyone who

provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section ...1114, ... 2332, ... [or] 2332b ... or attempts or conspires to do such an act.

18 U.S.C. § 2339A(a). Because they purportedly could not have contributed to al-Awlaki or Al- Qaeda in the Arabian Peninsula ("AQAP") knowing or intending that the support be used in preparing for, or carrying out, a violation identified in § 233 9A, Farooq and Ibrahim argue that they could only have been indicted if the Government instructed the grand jury to indict based on the exercise of their First Amendment rights. (See Mot. for Inspection at 3.)

         Farooq and Ibrahim insist that they could not have provided material support knowing or intending that such support be used in preparing for, or carrying out, a violation identified in § 23 39 A because at the time that the Government accuses them of providing such support-July 2009-al-Awlaki was not designated by the Secretary of State as a terrorist, nor had al-Awlaki yet publicly endorsed any particular violent acts of jihad. (See Mot. for Inspection at 3, 6-8.) Farooq and Ibrahim further argue that any funds provided to al-Awlaki in July 2009 could not have been given knowing or intending that they be used to support the terrorist plots referenced in the Indictment-Umar Farouk Abdulmutallab's attempt to destroy Northwest Airlines Flight 253 and Nidal Malik Hasan's shooting spree at Fort Hood, Texas. (See Id. at 6-8.) Abdulmutallab did not connect with al-Awlaki until mid-August 2009, and al-Awlaki did not show his support for Hasan until November 2009, they argue. (See id.) Farooq and Ibrahim offer a similar timing argument to refute their alleged material support of AQAP. (See id.)

         II.

         Under Federal Rule of Criminal Procedure 6(e)(1), all grand jury proceedings, except the grand jury's deliberation or voting, "must be recorded by a court reporter or by a suitable recording device." Fed. R. Crim. P. 6(e)(1). Grand jury proceedings, and recordings, are generally kept secret. See Fed. R. Crim. P. 6(e)(2). As the Supreme Court has explained, "the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil Co. of Cal. v. Petrol Stops Nw.,441 ...


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