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United States v. Jama

United States District Court, E.D. Virginia, Alexandria Division

November 6, 2016

UNITED STATES OF AMERICA
v.
MUNA OSMAN JAMA and HINDA OSMAN DHIRANE, Defendants.

          MEMORANDUM OPINION AND FINDINGS OF FACT IN SUPPORT OF VERDICT

          Anthony J. Trenga, United States District Judge

         On October 25, 2016, the Court found Defendant Muna Osman Jama ("Jama") guilty on Counts One through Twenty-One of the superseding indictment and Defendant Hinda Osman Dhirane ("Dhirane") guilty on Counts One and Sixteen through Twenty-One and not guilty on Counts Two through Fifteen of the superseding indictment. The Court's verdict followed the presentation of evidence during a nonjury trial held on July 14-18, 2016, supplemental briefing on defendants' Rule 29 motion for a judgment of acquittal, and closing arguments on October 12, 2016. Immediately before the Court returned its verdict, Defendant Jama made an oral motion on October 25, 2016 pursuant to Federal Rule of Criminal Procedure 23(c) requesting that the Court state its specific findings of fact.[1] In response to Jama's request, the Court stated its specific findings of fact in open court at the time it issued its verdict and denied Defendants' Motion for Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29. The Court now issues this memorandum opinion and written findings of fact in further support of its verdict and its denial of Defendants' Rule 29 motion.

         I. BACKGROUND

         A. Procedural History

         On June 26, 2014, a grand jury returned a twenty-one count superseding indictment against Defendants Jama and Dhirani, together with Codefendant Farhia Hassan ("Hassan"), who was arrested in the Netherlands and remains outside of the United States, and two other Codefendants, Fardowsa Jama Mohamed ("Mohamed") and Barira Hassan Abdullahi ("Abdullahi"), who have not been arrested and appear to be located outside of the United States. In Count One, Defendants are charged with Conspiracy to Provide Material Support to a Foreign Terrorist Organization, namely Harakat al-Shabaab al-Mujahideenal-Shabaab ("al-Shabaab" or "AS"), in violation of 18 U.S.C. § 2339B ("Section 2339B"). In Counts Two through Twenty-One, they are charged with Providing Material Support to a Foreign Terrorist Organization in violation of 18 U.S.C. §§ 2 & 2339B.

         Defendants waived trial by jury, and the Court held a bench trial beginning on July 11, 2016. On July 14, 2016, after the United States rested its case in chief, Defendant Jama moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. [Doc. No. 232.] The Court reserved decision on the motion.[2] Thereafter, the parties continued the presentation of evidence, with all parties resting on July 18, 2016, following which point Defendant Jama renewed her Rule 29 Motion.[3] The Court then ordered the filing of supplemental briefing and continued closing arguments to October 12, 2016.[4] After closing arguments, the Court again reserved decision on Defendants' pending Rule 29 motion.

         B. Superseding Indictment

         Count One of the superseding indictment alleges that "[f]rom at least in or about February 2011" and continuing through the date of the superseding indictment, Jama and Dhirane, together with Codefendants Mohamed, Hassan, and Abdullahi, conspired with each other and with others "knowingly to provide material support and resources to a foreign terrorist organization, that is, al-Shabaab, " in violation of 18 U.S.C. § 2339B. The superseding indictment further alleges that in furtherance of the conspiracy, Jama and Dhirane and their coconspirators engaged in a series of twenty-six transfers of funds, beginning on February 8, 2011 with a transfer from Jama to Mohamed and ending on January 23, 2013 with a transfer from Dhirane to Daahir Abdi.

         Counts Two through Twenty-One of the superseding indictment allege that on specific dates, a defendant or co-conspirator transmitted or attempted to transmit a particular amount of money to a particular individual, thereby providing material support or resources to al-Shabaab in violation of 18 U.S.C. § 2339B. These counts are stated chronologically, beginning with an alleged transfer from Defendant Jama to Mohamed on February 8, 2011 (Count Two) and ending with an alleged transfer from Defendant Jama to Osman Jama, her father, on August 8, 2012 (Count Twenty-One). Fourteen of the twenty counts of material support involve transfers from Jama to Mohamed; four involve transfers from Ali B. Sheik, Jama's husband, to Mohamed; and two involve transfers from Jama to Osman Jama.

         At the time the events in this case took place, Title 18 of the United States Code, Section 2339B(a)(1) provided that:

[w]hoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activities (as defined in section 212 (a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the For Relations Authorization, Fiscal Years 1988 and 1989).[5]

         "Material support or resources" is defined as:

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials ....

18U.S.C§2339A(b)(1).

         In order to convict a particular defendant of conspiracy to provide material support to a foreign terrorist organization, as alleged in Count One, the United States must prove beyond a reasonable doubt the following elements: (1) two or more persons entered into an agreement that had as its objective providing material support or resources to a foreign terrorist organization in violation of 18 U.S.C. § 2339B; (2) the defendant knew that the objective of the agreement or the means by which it was to be accomplished was unlawful; and (3) the defendant knowingly and voluntarily became a part of that agreement. See U.S. v. Jimenez Recio, 537 U.S. 270, 274 (2003) ("The Court has repeatedly said that the essence of a conspiracy is "an agreement to commit an unlawful act.'") (quoting Iannelli v. United States, 420 U.S. 770, 777 (1975)); U.S. v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996). In order to prove that a defendant knowingly and voluntarily joined the conspiracy, the United States must prove that the substance of their agreement contemplated conduct that satisfied the elements of a substantive offense under Section 2339B.

         In order to convict each Defendant of the substantive offense of providing material support or resources to an FTO in violation of Section 2339B, as alleged in Counts Two through Twenty-One, the government must prove beyond a reasonable doubt the following elements: (1) the defendant provided or attempted to provide assistance that constituted "material support or resources"; (2) the material support or resources were provided or attempted to be provided to a Foreign Terrorist Organization ("FTO"), as defined in 8 U.S.C. § 1189, [6] or to an organization that "has engaged or engages in terrorist activity, or... in terrorism"; (3) the defendant acted knowingly and intentionally; and (4) the defendant had "knowledge that the organization is a designated terrorist organization, has engaged or engages in terrorist activity, or has engaged or engages in terrorism." 18 U.S.C. § 2339B(a)(1). A person "provides" material support or resources "to" a FTO if that person delivers material support or resources intended for an FTO, either directly or through conduits, to someone who is deemed a part of the FTO.

         The Court has jurisdiction as to each count with respect to each Defendant if, among other grounds, she is a national of the United States, she is an alien lawfully admitted for permanent residence in the United States, the offense occurs in whole or in part within the United States, or the offense occurs in or affects interstate or foreign commerce. 18 U.S.C. § 2339B(d).

         II. FINDINGS OF FACT and ANALYSIS OF THE EVIDENCE

         The case involves inherently difficult issues of proof because of the secretive and amorphous nature of terrorist organizations, the limited transparency concerning the specific roles and associations of particular persons, and the limited practical ability to trace the extraterritorial movement of specific funds for specific purposes. Here, there is substantial direct evidence, principally in the form of recorded chatroom statements by Defendants and others. But the probative value of that evidence is limited and has to be considered with other circumstantial evidence, including the timing of the alleged transfers relative to actual events involving AS and the reasonable inferences that can be drawn from that evidence. The Court must also consider expert testimony concerning the nature of AS's operations, its known leadership, and those who are associated with its operations. Based on all of the evidence and the Court's assessment of the credibility of the witnesses and the weight to be given any particular piece of evidence, together with reasonable inferences drawn from that evidence, the Court makes the following findings of fact:

         1. AS was designated as a foreign terrorist organization by the United States Department of State under Section 219 of the Immigration and Nationality Act and is also an organization that both had engaged and was engaging in terrorist activities at the time of the events involved in this case and therefore was then and remains today an FTO for the purposes of Section 2339B(a)(1).

         2. Defendants are both United States citizens and residents of the United States who were born in Somalia.[7] At all material times, both were ardent, committed, and active supporters of AS who knew and associated with persons who were themselves part of AS. At all material times, they also knew that AS was a designated FTO, that it had engaged and was engaging in ...


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