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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, et al., Defendants.

          OPINION AND ORDER

          EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

         This 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 DENIED.

         I.

         Ibrahim, 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].)

         Ibrahim, Asif, and Sultane have each moved to dismiss Counts 1 and 2 of the Indictment.

         Under 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.)

         The 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. (Id.)

         The 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.)

         A. Alleged Radicalization and the First Trip to Yemen

         The 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." (Id.)[1]

         Beginning 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.)

         Also in 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." (Id.)

         On 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.)

         On 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 believers." (Id.)

         On 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, stating:

[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 tawfeeq [opportunity].

(Id. ¶ 100.)

         In 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. ¶ 75.)

         In December 2008, unindicted co-conspirator #2 allegedly traveled to Yemen and met with al-Awlaki in person. (Id. ¶ 77.)

         B. Alleged Fundraising and the Second Trip to Yemen

         Soon 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 [al-Awlaki]." (Id.)

         Beginning 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.)

         On 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.)

         In a 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.)

         On 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.)

         Unindicted 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.)

         C. Allegations of Additional Fundraising and the Third Trip to Yemen

         After 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].)

         On 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 ...


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