Escolar Documentos
Profissional Documentos
Cultura Documentos
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The United States of America, plaintiff, through its attorneys, Andrew M. Luger,
United States Attorney for the District of Minnesota, and Assistant United States
Attorneys John Docherty, Andrew R. Winter, and Julie E. Allyn, respectfully submits its
trial brief in this case. This trial brief is accompanied by three motions: one to limit
impeachment of two prosecution witnesses; another to allow, given the volume of
evidence in this case and the complexity of the issues, a second Special Agent of the
Federal Bureau of Investigation, Carson Green, to sit at counsel table during the trial; and
a third asking the Court to take judicial notice, pursuant to Fed. R. Evid. 201, of the fact
that the Islamic State in Iraq and the Levant, and al Shabaab, have been designated as
foreign terrorist organizations by the Secretary of State pursuant to Section 219 of the
Immigration and Nationality Act.
I.
Abdirahman Yasin Daud (Defendant 4), and Guled Ali Omar (Defendant 7), is scheduled
to begin at nine a.m. on May 9, 2016 before the Honorable Michael J. Davis, Judge of the
United States District Court for the District of Minnesota.
B.
This estimate takes account of opening statements and closing arguments, but does not
include jury selection or any argument on motions that may be necessary, nor does it
allocate time for any defense case. The governments best estimate of the total length of
trial is three weeks.
C.
D.
E.
avoid jury confusion, the government has prepared a copy of the second superseding
indictment that (a) is titled Indictment rather than Second Superseding Indictment,
(b) no longer characterizes as defendants, those individuals who have entered
negotiated pleas of guilty since the date the second superseding indictment was returned,
(c) removes charges applicable only to defendants who are no longer in the case, (d) renumbers the charges so that there are no gaps in the numerical sequence of charges, (e)
corrects the spelling of defendant Dauds first name to Abdirahman from
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Abdurahman, and (f) removes the forfeiture allegations. A copy of that document,
which will be referred to as the Indictment from this point forwards in this Trial Brief,
is attached.
G.
II.
THE CHARGES
The Indictment was returned by a grand jury of the District of Minnesota on
October 22, 2015. All three defendants are charged in Count One with conspiring to
commit murder outside the United States, in violation of Title 18, United States Code,
Section 956, and all three defendants are also charged in Count Two with conspiring to
provide material support and resources to the Islamic State of Iraq and the Levant
(ISIL), a designated foreign terrorist organization, in violation of Title 18, United
States Code, Section 2339B(a)(1). Defendant Guled Omar is charged, in Counts Three
and Four, with attempting to provide material support and resources to ISIL, in violation
of Title 18, United States Code, Section 2339B(a)(1). Defendant Mohamed Farah is
charged in Count Five with attempting to provide material support and resources to ISIL.
In Count Six, defendant Mohamed Farah is again charged with attempting to provide
material support and resources to ISIL, as is defendant Abdirahman Daud. In Count
Seven, defendant Mohamed Farah is charged with perjury, in violation of Title 18, United
States Code, Section 1621. In Count Eight defendant Abdirahman Daud is charged with
perjury, in violation of Title 18, United States Code, Section 1621. In Count Nine,
defendant Mohamed Farah is charged with false statements, in violation of Title 18,
United States Code, Section 1001. Finally, in Count Ten, defendant Guled Omar is
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charged with attempted financial aid fraud, in violation of Title 20, United States Code,
Section 1097(a).
The government will introduce evidence that the defendants agreed to travel to
Syria, where they would join ISIL, and would commit murder on behalf of ISIL. By
joining ISIL the defendants also provided material support and resources, in the form of
themselves, to ISIL, and this provision of material support was also pursuant to a
conspiratorial agreement among the defendants.
finance his travel to Syria with student loan funds, and defendants Mohamed Farah and
Abdirahman Daud sought to keep the conspiracy hidden from the authorities by perjuring
themselves before the grand jury. Defendant Mohamed Farah also made material false
statements to Special Agents of the Federal Bureau of Investigation. The governments
evidence will include, but not be limited to, tape-recorded conversations among the
defendants about their criminal plans, and about the killings committed by ISIL; the
videos watched by the defendants, which are replete with acts of, in the words of the
federal murder statute, 18 U.S.C. 1111, the unlawful killing of a human being with
malice aforethought; and numerous documents, including bank records, travel records,
and telephone toll records.
III.
THE STATUTES
A. Conspiracy to Commit Murder Outside the United States
All three defendants are charged in Count One of the Indictment with conspiring
inside the United States to commit murder outside the United States. Title 18, United
States Code, Section 956 provides in part:
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Whoever, within the jurisdiction of the United States, conspires with one or
more other persons, regardless of where such other person or persons are
located, to commit at any place outside the United States an act that would
constitute the offense of murder, kidnapping, or maiming if committed in
the special maritime and territorial jurisdiction of the United States shall, if
any of the conspirators commits an act within the jurisdiction of the United
States to effect any object of the conspiracy, be punished [for any term of
years or for life, if the offense is conspiracy to murder or kidnap]
The Indictment charges only conspiracy to commit murder, and not conspiracy to
kidnap or maim.
B. Provision of Material Support and Resources to a Designated Foreign
Terrorist Organization
All three defendants are charged in Count Two of the Indictment with Conspiring
to Provide Material Support or Resources to a Foreign Terrorist Organization (namely
ISIL). Defendant Guled Omar is charged with two counts of attempting to commit this
crime (Counts Three and Four), once for attempting, on May 24, 2014, to drive to
Mexico and then make his way to Syria from Mexico, and once for attempting to travel to
Syria via San Diego on November 6, 2014; defendant Mohamed Farah is also charged
with two counts of attempting to commit this crime (Counts Five and Six), once for
traveling by bus to New York City and then attempting to fly from New York to Turkey
from where he could travel onwards to Syria, in November of 2014, and once for
attempting to travel, in April of 2015, to Mexico and then on to Syria; and defendant
Abdirahman Daud is charged in one count with attempting to commit this crime (Count
Six, together with defendant Mohamed Farah), for attempting to travel to Syria via
Mexico, together with defendant Mohamed Farah, in April of 2015.
Title 18, United States Code, Section 2339B provides, in relevant part:
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readily ascertainable, either online or in a law library, that the fact of a designations
publication on a particular date can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b)(2). Pursuant to
Fed. R. Evid. 201(f), the jury should be instructed that it may, but need not, accept the
noticed facts as conclusive.
b. Terrorist Activity
The term terrorist activity is defined as any activity which is unlawful under the
laws of the place it was committed (or which, if it had been committed in the United
States, would be unlawful under the laws of the United States or any particular State),
and which involves any of the following: (1) the seizing or detaining, and threatening to
kill, injure, or continue to detain another individual in order to compel a third person
(including a governmental organization) to do or abstain from doing any act as an explicit
or implicit condition for the release of the individual seized or detained; (2) an
assassination; (3) the use of any explosive, firearm, or other weapon or dangerous device
other than for mere personal monetary gain, with the intent to endanger, directly or
indirectly, the safety of one or more individuals or to cause substantial damage to
property; and (4) a threat, attempt, or conspiracy to do any of the above acts. 8 U.S.C.
1189.
In this case, the government will ask its expert, Mr. Charles Lister, to testify about
the beheadings of James Foley (August 19, 2014), Steven Sotloff (September 2, 2014),
David Haines (September 13, 2014), and Alan Henning (October 3, 2014). All of these
beheadings took place before some members of the conspiracy charged in this case
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disseminating the video, ISIL, in the words of the statute defining terrorist activity,
seized or detained an individual and then threatened to kill that individual in order to
compel a third person (including a governmental organization) to do or abstain from
doing any act as an explicit or implicit condition for the release of the individual seized or
detained.
The government will also introduce evidence, through, among other means, the
videos that the defendants themselves watched, of the use of any explosive, firearm, or
other weapon or dangerous device other than for mere personal monetary gain, with the
intent to endanger, directly or indirectly, the safety of one or more individuals or to cause
substantial damage to property.
c. Terrorism
The term terrorism means premeditated, politically-motivated violence
perpetrated against non-combatants targeted by sub-national groups or clandestine agents.
22 U.S.C. 2656f(d)(2). The government will introduce evidence that the defendants
knew that ISIL engaged in terrorism through the videos they watched in which numerous
non-combatants were murdered at ISILs hands.
C. Perjury
Defendant Mohamed Farah is charged in Count Seven, and defendant
Abdirahman Daud in Count Eight, with perjury. 18 U.S.C. 1621 states that:
Whoever, having taken an oath before a competent tribunal, officer, or
person, in any case in which a law of the United States authorizes an oath to
be administered, that he will testify, declare, depose, or certify truly, or that
any written testimony, declaration, deposition, or certificate by him
subscribed, is true, willfully and contrary to such states or subscribes any
material matter which he does not believe to be true . . . is guilty of perjury.
D. False Statement
Defendant Mohamed Farah is charged in Count Nine with making a
false statement to FBI Agents. 18 U.S.C. 1001 states that:
[W]hoever, in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the United States,
knowingly and willfully . . . makes any materially false, fictitious, or
fraudulent statement or representation . . . [is guilty of a crime]
E. Financial Aid Fraud
Defendant Guled Omar is charged in Count Nine with attempted financial aid
fraud. Title 20, United States Code, Section 1097(a) states, in relevant part:
unlawful killing with malice aforethought. The object of a Section 956 conspiracy can
also be a kidnapping or a maiming; however in this case the government has not alleged
that the defendants conspired to kidnap or maim. Evidence of kidnapping or maiming
may still be offered, however, as part of the governments proof, under Counts Two
through Six, that ISIL engaged in terrorist activity or terrorism.
2. 18 U.S.C. 2339B
Counts Two through Six of the Indictment allege either that all defendants
conspired to provide material support or resources to a designated foreign terrorist
organization, that being ISIL, or that one or more defendants attempted to provide
material support or resources to ISIL. To sustain the charge as alleged in Count Four, the
Government must prove, in addition to the conspiracy elements, four elements:
One, that the defendant knowingly provided material support or resources;
Two, that the defendant knew that the support or resources was going to ISIL;
Three, that ISIL had been designated as a Foreign Terrorist Organization by the
Secretary of State;
Four, that the defendant knew that one or more of the following conditions
existed:
a.
b.
c.
Five, that one or more of the following three jurisdictional conditions is met:
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a.
United States; or
b.
c.
3. 18 U.S.C. 1621
In order to sustain its burden of proving beyond a reasonable doubt the
commission of the crime of perjury, as alleged in Counts Seven and Eight of the
Indictment, the government must prove each of the following elements beyond a
reasonable doubt:
One, on or about the date alleged in the Indictment the defendant testified under
oath at Grand Jury proceedings investigating the allegations of material support to ISIL,
and when questioned,
Two, gave false testimony;
Three, at the time he testified, the defendant knew such testimony was false;
Four, the defendant voluntarily and intentionally gave such testimony; and
Five, the false testimony was material.
False testimony is material if the testimony is capable of influencing the Grand
Jury on the issue before it. The statement need not actually have influenced the decision
so long as it had the potential or capability of impeding, influencing, or dissuading the
Grand Jury from pursuing its investigation.
believability of the false statement.
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4. 18 U.S.C. 1001
In order to sustain its burden of proving beyond a reasonable doubt the crime of
making false statements, in violation of Title 18, United States Code, Section 1001, the
government must prove each of the following elements beyond a reasonable doubt:
One, the defendant knowingly and willfully made a statement or representation, in
an international terrorism investigation, to agents of the Federal Bureau of Investigation
(FBI);
Two, that statement or representation was false or fraudulent;
Three, the statement or representation concerned a material fact to the FBI;
Four, the statement or representation was made about a matter within the
jurisdiction of the FBI. You may find this element has been satisfied if you find that the
FBIs function includes the investigation of international terrorism; and
Five, the defendant knew it was untrue when he made the statements or
representations.
A statement is false if it was untrue when made. A statement is fraudulent if
the defendant made it with the intent to deceive.
The word willfully means that the defendant committed the act voluntarily and
purposely, and with knowledge that his conduct was, in a general sense, unlawful. That
is, the defendant must have acted with a bad purpose to disobey or disregard the law.
The government need not prove that the defendant was aware of the specific provision of
the law that he is charged with violating or any other specific provision.
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Because defendant Guled Omar is not charged with the completed crime, but with
an attempt, the government will prove that defendant Guled Omar took a substantial step
towards the commission of the crime of financial aid fraud, and that the step was more
than mere preparation. Specifically, the government will prove that defendant Omar
withdrew his financial aid funds in a series of ten withdrawals from his Higher One debit
card (onto which his financial aid funds had been loaded), conducted (with the exception
of a weekend) on successive days, each withdrawal being in the amount of five hundred
dollars. The government will also prove that these withdrawals occurred at the same time
as defendant Omar was seeking to drive to Mexico and then travel onwards from Mexico
to Syria.
STATEMENT OF FACTS
The evidence will show that beginning in March of 2014 and continuing until
April of 2015, a group of individuals, including the defendants, met multiple times at
various locations and agreed to travel to Syria, to join, and fight for, ISIL (thereby
providing ISIL with material support in the form of personnel, the personnel being the
defendants themselves), and to commit the crime of murder on behalf of ISIL.
The three defendants on trial, in these meetings, helped each other with several
concrete steps in furtherance of their plan to travel to Syria, including obtaining passports
and funds with which to travel, advising each other of means by which to contact ISIL
once inside Turkey, and agreeing on methods to keep their plans secret from law
enforcement, including the use of secure messaging applications for their phones, the best
ways to answer questions the defendants expected to be asked by passport examiners,
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TSA personnel, and FBI Agents, and how defendants who were under law enforcement
scrutiny could still travel to Syria by traveling through Mexico.
The evidence will show that there were three major efforts by the conspiracy to
send members to Syria to join ISIL, in May of 2014, November of 2014, and April of
2015.
May of 2014
The May of 2014 effort had two components, one in which defendant Guled
Omar, together with Yusuf Jama and cooperating co-conspirator Abdirahman Bashir,
tried to drive to Mexico and travel onwards from there to Syria. This effort was thwarted
by defendant Guled Omars family.
Abdullahi Yusuf, Abdi Nur, and Adnan Farah attempted to fly commercially from
Minneapolis Saint Paul International Airport (MSP) to Istanbul. Adnan Farah never
tried to fly because of passport problems, Abdullahi Yusuf was denied boarding at MSP
on May 28, 2014, but Abdi Nur successfully traveled to Syria from MSP on May 29,
2014.
Cooperating co-conspirator Abdirahman Bashir will testify to an attempt made on
May 24, 2014 in which he, defendant Guled Omar, and co-conspirator Yusuf Jama
attempted to travel from Minnesota to Mexico in a rented car, and to fly from Mexico to
Syria. They were prevented from doing so by defendant Guled Omars family. The
evidence will also show that before departing, defendant Guled Omar withdrew $5,000
from his student financial aid account and that these funds have never been repaid.
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ISIL. A few days later, on June 6, 2014, co-conspirator Yusuf Jama, who had been
blocked on May 24 from traveling with Abdirahman Bashir and Guled Omar, took a
Greyhound bus to New York, and then flew from John F. Kennedy International Airport
(JFK) to Turkey.
November of 2014
The second major attempt occurred in the fall of 2014, when four men Zachariah
Abdurahman, Hanad Musse, Hamza Ahmed, and defendant Mohamed Farah followed
Yusuf Jamas lead and took Greyhound buses to New York, while a fifth, defendant
Guled Omar, attempted to reach Mexico by first flying from MSP to San Diego.
At JFK the four men who had gone to New York on the bus were prevented from
boarding their flights. The evidence will show that three of these four conspirators had
opened bank accounts on the day they left Minneapolis on the bus, and that they then
made large cash deposits into those newly-opened accounts. With those cash deposits
buttressing their accounts, the JFK four, on the morning of their anticipated departure
from JFK, booked flights to various cities in southeastern Europe, either in Turkey, or
close to Turkey. Defendant Mohamed Farah was booked to Sofia, Bulgaria, with a
change of planes in Istanbul; co-conspirator Hamza Ahmed was booked to Madrid, with
a change of planes in Istanbul. Co-conspirator Hamza Ahmed and defendant Mohamed
Farah were booked on the same Turkish Airlines flight from New York to Istanbul. Coconspirators Hanad Musse and Zachariah Abdurahman were booked on the same
Aeroflot itinerary, going from JFK to Moscow, where they would connect to a flight to
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Athens. Defendant Mohamed Farah and co-conspirator Hanad Musse both made false
statements to New York-based FBI Agents when they were asked about their travel plans.
On November 6, 2014, defendant Guled Omar was denied boarding at MSP of his
flight to San Diego.
At the time of the attempted departure from JFK, the defendants were not charged
criminally. The defendants, and in several cases their families, were interviewed by FBI
Agents, and the defendants were formally notified, in writing, that they were the targets
of a federal criminal investigation. The defendants response was to try again.
April of 2015
The third attempt began in the mid-winter of 2014 -2015, when a group, including
the three defendants on trial, began meeting, yet again, to plot travel to Syria to fight for
ISIL.
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copying. The government has done this by disclosing in discovery all of the records that
underlie the summaries. The government has also disclosed the summaries themselves.
3. Impeachment of government witnesses
The government has disclosed to the defense three matters concerning its
witnesses which should not be allowed for impeachment of those witnesses on crossexamination:
a. The government has disclosed that in October of 2014, cooperating defendant
Abdullahi Yusuf and the younger brother of cooperating co-conspirator
Abdirahman Bashir spray-painted the words isis WILL REMAIN and
DaWLA on a building in Minneapolis. Yusuf said that Abdirahman Bashirs
younger brother swore Yusuf to secrecy about the incident because he and his
older brother sometimes went tagging (writing graffiti) at night.
b. The government has disclosed that on or about April 25, 2015, Abdullahi
Yusuf had his halfway house placement terminated, and was put back in jail,
following the discovery of a boxcutter under his bed at the halfway house
where he was residing.
c. The government has disclosed that on April 8, 2016 Abdirahman Bashir was
arrested by the Minneapolis Police following Abdirahman Bashirs accidental
discharge of a firearm. No injuries resulted.
None of these incidents is proper impeachment. None of the incidents resulted in
a felony conviction, or indeed, any conviction at all, Fed. R. Evid. 609(a); and none of the
incidents is probative of truthfulness or dishonesty, Fed. R. Evid. 608(b). (Fed. R. Evid.
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608(a), which covers opinion or reputation evidence, simply has no applicability to any
of these three incidents).
Impeachment is permitted under Fed. R. Evid., 608(b) by a specific incident of
misconduct only if, in the discretion of the court, that specific incident of misconduct is
probative of the character of [the witness] for truthfulness or untruthfulness. The
purpose of the rule is to avoid holding mini-trials on peripherally related or irrelevant
matters. United States v. Martz, 964 F.2d 787, 789 (8th Cir. 1992). Thus, the Eighth
Circuit has upheld district courts that ruled that evidence a police detective had taunted a
prisoner, United States v. Alston, 626 F.3d 397, 403 (8th Cir. 2010), or that a witness had
been dishonorably discharged from the Marine Corps for failure to wear his uniform
properly, United States v. Hastings, 577 F. 2d 38, 41 (8th Cir. 1978), or even that a
witness had committed (but not been convicted of) arson, United States v. Ngombwa,
2016 WL 111434 *7 (8th Cir. Jan. 10, 2016) was not proper impeachment. In each
situation, the courts held that the acts did not involve dishonesty, and were therefore not
the sort of prior bad act with which a witness could be impeached under Fed. R. Evid.
608(b).
4. The co-conspirator exception to the rule against hearsay
Fed. R. Evid. 801(d)(2) exempts from the rule against hearsay an opposing partys
statement, and Fed. R. Evid. 801(d)(2)(E) includes within the scope of that exception a
statement of the partys coconspirator during and in the course of the conspiracy. In
deciding the preliminary question of whether a conspiracy existed, the district court may
consider the proferred co-conspirators statement itself. Bourjaily v. United States, 483
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U.S. 171, 177 180 (1987). The Eighth Circuit has acknowledged that this is the holding
of Bourjaily. See, United States v. Ragland, 555 F. 3d 706, 713 (8th Cir. 2009) ([C]ourts
are permitted to consider the out-of-court statements in making [the] determination so
long as the statements themselves do not provide the sole evidence of the conspiracy.).
Co-conspirators can include individuals not on trial (for example, individuals who
were charged but resolved their cases short of trial), or even individuals not charged in
the case at all. United States v. Lewis, 759 F. 2d 1316, 1339 (8th Cir. 1985) (Fed. R.
Evid. 801(d)(2)(E) applies to both unindicted and unnamed coconspirators.)
5. Judicial Notice
Fed. R. Evid. 201(d) provides that a court shall take judicial notice if requested
by a party and provided with the necessary information. A judicially noticed fact must
be one not subject to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid.
201(b). The prosecution will ask the court to take judicial notice of the facts that ISIL
has been continuously designated as a foreign terrorist organization since October 15,
2004, and that al Shabaab has been so designated since March 18, 2008. This court took
judicial notice of al Shabaabs designation in the trial of United States v. Mahamud Said
Omar, District Court File No. 09-242 (MJD/FLN).
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CONCLUSION
The government is ready to begin trial on May 9, 2016.
Respectfully Submitted,
ANDREW M. LUGER
United States Attorney
s/ John Docherty
BY: JOHN DOCHERTY
Assistant United States Attorney
Attorney Reg. No. 017516X
JULIE E. ALLYN
Assistant United States Attorney
Attorney Reg. No. 256511
ANDREW R. WINTER
Assistant United States Attorney
Attorney Reg. No. 232531
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