United States District Court, N.D. Ohio, Western Division
OPINION AND ORDER
A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the motions to dismiss filed by
Defendants Ibrahim Zubair Mohammad ("Ibrahim"),
Asif Ahmed Salim ("Asif), and Sultane Roome Salim
("Sultane"). For the following reasons,
Defendants' motions [ECF Nos. 76, 79, 93] are
Asif, and Sultane were indicted on September 30, 2015, along
with their co-Defendant Yahya Farooq Mohammad
("Farooq"), 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 Ibrahim
and Farooq only); and (Count 4) conspiracy to obstruct
justice, in violation of 18 U.S.C. 1512(k). (Indictment at
12-72 [ECF No. 1].)
Asif, and Sultane have each moved to dismiss Counts 1 and 2
of the Indictment.
Count 1, the Government alleges that Defendants conspired to
provide and conceal material support and resources, including
currency and monetary instruments, tangible property,
services, and expert advice and assistance, knowing and
intending that the support would be used in preparation for,
and in carrying out, violations of 18 U.S.C. §§
1114 (killing of officers and employees of the United
States), 2332 (killing of United States nationals), and 2332b
(acts of terrorism transcending national boundaries).
(Indictment at 12.) And under Count 2, the Government alleges
that Defendants provided material support and resources,
including currency and monetary instruments, knowing and
intending that the support would be used in preparation for,
and in carrying out, violations of 18 U.S.C. §§
1114, 2332, and 2332b. (Id. at 68.)
Government supports Counts 1 and 2 by quoting various public
statements made by Anwar al-Awlaki around the time period in
question. (Indictment ¶¶ 11-24.) Those statements
include exhortations that al-Awlaki's followers should
support "violent jihad" by (i) joining the ranks of
the mujahideen (holy warriors), (ii) creating and spreading
jihad culture, (iii) preparing for guerilla and urban
warfare, (iv) seeking martyrdom during jihad, (v) donating to
the mujahideen, (vi) protecting the mujahideen and their
secrets, and (vii) following the news of jihad.
Government further supports Counts 1 and 2 by describing
Defendants' actions and quoting statements from emails
sent and received by Defendants. (Indictment ¶¶
37-277.) In numerous of the quoted emails, Defendants
reference al-Awlaki and his writings. (E.g., Id.
¶¶ 43-14, 47, 63-65, 196, 243, 245, 248-249,
263-265.) In other emails, Defendants discuss then-alleged
plot to raise money to provide to al-Awlaki in support of
violent jihad. (E.g., Id. ¶¶ 70, 72-73,
77, 91, 102-105, 110, 112, 114-116, 133, 137, 161, 174, 186,
213, 218, 220-224, 228-229, 257-258.)
Alleged Radicalization and the First Trip to Yemen
Government alleges, for example, that Ibrahim emailed his
brother, Farooq, in 2005 about the countries at war with
Islam. (Indictment ¶ 39 [ECF No. 1].) Ibrahim observed:
"As far as which [country] is more evil, I think what is
more important to look at is which country is most actively
at war with Islam and that without a doubt is the U.S."
in 2007, Farooq and Ibrahim allegedly engaged in a scheme to
raise money for jihad through the fraudulent use of
Farooq's credit in the United States. (See, e,
g,, Indictment ¶¶ 48-52, 78-81.)
2007, Ibrahim purportedly received an email from Farooq with
a transcribed version of the al-Awlaki lecture
"Constants on the Path of Jihad." (Indictment
¶ 47.) The lecture focused on "violent jihad."
(Id.) Ibrahim received another email from Farooq
with the subject line "Columbus." (Id.
¶ 53.) This email contains a link to an online news
video entitled "Jihad in Central Ohio."
January 29, 2008, Ibrahim allegedly sent Farooq an email with
a link to a document entitled "Engineers of Jihad."
(Indictment ¶ 55.) Ibrahim commented in the subject
line: "Check out the abstract on this. You[']ll
[sic] laugh hard." (Id.) The abstract stated:
"We find that graduates from subjects such as science,
engineering, and medicine are strongly overrepresented among
Islamist movements in the Muslim world, though not among the
extremist Islamic groups which have emerged in Western
countries more recently. We also find that engineers alone
are strongly overrepresented among graduates in violent
groups in both realms." (Id.) Farooq later
responded: "Looks like they've found us out:)."
(Id. ¶ 57.)
August 31, 2008, Asif purportedly forwarded an email from
Farooq to Ms brother, Sultane, and another individual that
contained the text from an al-Awlaki blog entry entitled
"Establishing Khilafa." (Indictment ¶ 65.) In
that entry, al-Awlaki wrote,
[t]oday the Muslim world is under occupation and the
statements of our scholars are clear that it becomes
[obligatory] on every able Muslim to fight to free the Muslim
land. When something is [obligatory] it is [obligatory]. You
cannot theorize or hypothesize otherwise.... So even if you
do not believe Jihad to be the way to establish khilafah you
must agree that Jihad is [obligatory].... What I mean by
Jihad here is not just picking up a gun and fighting. Jihad
is broader than that. What is meant by Jihad in this context
is a total effort by the ummah to fight and defeat its
enemy.... Fight the disbelievers with your self, your wealth
and your tongues. It is what Clausewitz would refer to as
'total war' but with the Islamic rules of engagement.
It is a battle in the battlefield and a battle for the hearts
and minds of the people.
(Id.) That same day, Sultane emailed Asif about a
quote from an Islamic society leader in the United States who
praised the service of Muslims in the United States military.
(Id. ¶ 66.) He commented: "she has taken
what awlaki spoke against and shattered new barriers.
It's one thing to say ballots over bullets to bring about
positive change. [I]t's another to say bullets for the
September 15, 2008, Ibrahim purportedly emailed several
individuals an al-Awlaki blog post entitled "Food
Reviews from Behind Bars: Everthing [sic] Else."
(Indictment ¶ 67.) Ibrahim commented about the post:
"May Allah bless this ummah [worldwide Muslim community]
and elevate those who're truly struggling for it with
their wealth and their souls." (Id. ¶ 68.)
And Ibrahim later sent an email to an unindicted individual,
[I]ts [sic] because our societies are corrupt, tyrannical and
sinful that our leaders are also corrupt, tyrannical sinners
... the least we can do on our part is to implement Islam in
our lives and try to spread it to those around us, especially
our families. Of course there's a lot more we can do,
with our lives and our wealth if only Allah gives us the
(Id. ¶ 100.)
November 2008, unindicted co-conspirators #2 and #3 allegedly
exchanged emails regarding a trip to Yemen to meet al-Awlaki.
(Indictment ¶¶ 70-74.) As the discussions were
ongoing, Farooq sent an email to Ibrahim with the subject
line "financial terrorism." (Id. ¶
December 2008, unindicted co-conspirator #2 allegedly
traveled to Yemen and met with al-Awlaki in person.
(Id. ¶ 77.)
Alleged Fundraising and the Second Trip to Yemen
after the December 2008 trip, the conspirators allegedly
began planning another trip to Yemen for January 2009.
(Indictment ¶ 103 [ECF No. 1].) They intended, once
again, to meet with al-Awlaki. (See id.) As they
planned the January trip, unindicted co-conspirator #3
suggested that they meet to discuss "contributions
collected so far" and what gift to bring for "Shk
in early 2009, Farooq and Ibrahim purportedly obtained money
for jihad by paying for a student's car and college
tuition in Ohio in exchange for reimbursement in the United
Arab Emirates from the student's father. (See,
e.g., Indictment ¶¶ 95-99, 106, 134.)
January 6, 2009, Ibrahim received an email in which Farooq
implored Ibrahim to check out the latest al-Awlaki blog post.
(Indictment ¶ 93.) The email contained a link to
al-Awlaki's "44 Ways of Supporting Jihad."
(Id.) The next day, Asif allegedly sent a
communication to unindicted co-conspirator #1 in which Asif
discussed duty and prayer:
[W]ell du'a [prayer] is a powerful weapon, we
shouldn't underestimate it... but, at the same time, it
does, in no way, absolve us of our duties ... check this
quote out... this was from many years ago ... scary how its
[sic] still pertinent., . 'Every day Muslim men, women,
and children join the ranks of anonymous martyrs. Their
stories will never surface in (the) media, but they will be
featured in the Annals of Truth that will (be) unfolded on
the Day of Judgement [sic]. I mourn the suffering of these
brothers and sisters, but I do not fear for their ultimate
outcome.... Rather, I fear for the Muslims who stand aside as
the war against Islam rages on. May Allah give us the clarity
in knowledge and courage in deeds to defend our fellow
Muslims.' ... the bad thing about that du'a [prayer]
is that He pretty much already has done that... now the
ball's in our court... and therein lies the rub.
(Id. ¶ 101.)
January 19, 2009 communication between Farooq and unindicted
co-conspirator #1, Farooq allegedly stated that the
"brothers" were planning to go to Yemen.
(Indictment ¶ 110.) He then described the fundraising
efforts leading up to the trip: "I got about $6K so
far... I'm meeting the other two brothers tonight...
I'll find out how much they collected as well... and if
you have any questions, I can pass them to the Sh
[Awlaki]." (Id.) Referring to the Yemen trip in
a separate email, unindicted co-conspirator #3 also described
the fundraising efforts: "Our collections so far have
reached around USD 7000 [$7, 000]... with most of it coming
from the US:)!!" (Id. ¶ 112.)
January 20, 2009, Farooq allegedly informed mrahim that he
had a ticket for Sanaa, Yemen. (Indictment ¶ 115.) In
that email, with the subject line "trip, " Farooq
instructed Ibrahim: "keep it to yourself for now"
and "if you can raise more funds, that would be
good." (Id.) Farooq then asked if Ibrahim could
suggest a gift. (Id.)
co-conspirators #2 and #3 allegedly travelled to Yemen to
meet with al-Awlaki on January 28, 2009. (Indictment ¶
133.) They provided him approximately $7, 000. (See
id.) Farooq had allegedly raised around $6, 000 of that
sum. (Id.) Farooq was unable to travel, though,
because he was ill. (Id.)
Allegations of Additional Fundraising and the Third Trip to
the trip, unindicted co-conspirator #3 allegedly sent Farooq
and unindicted coconspirator #2 an email about actions that
they could take to continue supporting al-Awlaki. (Indictment
¶ 136 [ECF No. 1].)
February 27, 2009, Ibrahim allegedly emailed Farooq a video
depicting a Taliban ambush of a military convoy in
Afghanistan. (Indictment ¶ 150.) The video, entitled
"Taliban Mujahideen: Fighting in Helmand and the
Aftermath, " includes a banner reading, in both Arabic
and English, "Heavy Battle with Crusaders ...