United States v. Abdalla

334 F. Supp. 3d 582
District Court, S.D. Illinois·Decided September 11, 2018·No. 14 CR 716 (VM)·Published·Cited by 1 cases

Opinion

VICTOR MARRERO, United States District Judge.

Defendants Baktash Akasha Abdalla and Ibrahim Akasha Abdalla (collectively, the "Akasha Brothers" or "Defendants") separately move to dismiss the indictment against them. (See"Baktash Motion," Dkt. No. 75; "Ibrahim Motion," Dkt. No. 77.) The Akasha Brothers urge the Court to dismiss the indictment, arguing that the Court lacks jurisdiction over them and venue is improper. Defendant Baktash Akasha Abdalla also moves for various forms of pretrial relief. (See Baktash Motion at 2.) Defendant Ibrahim Akasha Abdalla joins in his co-defendant's motion.

*584(See Ibrahim Motion at 1.) Because the Court has jurisdiction over the prosecution of the Akasha Brothers and because the motions for pretrial relief are either premature or moot, the Akasha Brothers' Motions are DENIED.

I. BACKGROUND

The Akasha Brothers, along with Gulam Hussein, Vijaygiri Anandgiri Goswami, and Muhammad Asif Hafeez, are charged with orchestrating an international narcotics conspiracy based in Kenya, with a distribution network that included the United States. (See"Superseding Indictment," Dkt. No. 55.) On July 2, 2018, the Court denied the Akasha Brothers' motion to compel the Government to produce documents related to their extradition and/or expulsion from Kenya. See United States v. Akasha Abdalla, 317 F.Supp.3d 786 (S.D.N.Y. 2018) (the "July Order"). The facts and procedural history are set forth in greater detail in the July Order, familiarity with which is presumed.

The Akasha Brothers now move to dismiss the Superseding Indictment pursuant to Rules 12(b)(2) and 12(b)(3)(A)(i) of the Federal Rules of Criminal Procedure ("Rule 12(b)(2)" and " Rule 12(b)(3)(A)(i)," respectively). (See"Baktash Mem.," Dkt. No. 76; Ibrahim Motion). The Akasha Brothers argue that the Court lacks jurisdiction over their prosecution because: (1) the Government "manufactured" jurisdiction when CS-1 told the Akasha Brothers that CS-1 wanted to import narcotics into the United States, and (2) the Akasha Brothers' removal from Kenya constituted a violation of the Kenya-U.S. Extradition Treaty that divested the Court of jurisdiction. (See Baktash Mem. at 4-18; Ibrahim Motion at 3-5.) Defendants also argue that the Court should dismiss the Superseding Indictment because the Government does not allege that the Akasha Brothers committed any overt acts in the United States, thus making venue in the Southern District of New York improper. (See Baktash Mem. at 18-20; Ibrahim Motion at 6.)

Defendant Baktash Akasha Abdalla, joined by Defendant Ibrahim Akasha Abdalla, also requests various forms of pretrial relief. First, the Akasha Brothers move to suppress any pretrial identifications as well as any in-court testimony that would identify the Defendants, arguing that such identifications would be impermissibly suggestive and unreliable. (See Baktash Mem. at 20-21.) Second, the Akasha Brothers move to suppress any statements they made to the Government while they were under custodial interrogation, arguing that any such statements were made in violation of their Miranda rights. (See id. at 21-22.) Third, the Akasha Brothers move to preclude any potential evidence of their prior crimes and prior criminal or immoral acts, arguing that the introduction of such evidence would have a disproportionately prejudicial impact on the Defendants. (See id. at 23.) Fourth, the Akasha Brothers request the immediate disclosure of various Brady and Giglio materials, arguing that Defendants require such disclosure to prepare for trial. (See id. at 24-26.)

In opposition, the Government argues that the Akasha Brothers' motions to dismiss the Superseding Indictment should be denied because the motions are based on arguments related to their removal from Kenya, arguments which the Court has already found to be without merit, and because venue has been sufficiently established. (See"Government Opp'n," Dkt. No. 80, at 7-18.) In support of its position, the Government submits a sworn declaration from Hamisi Salim Massa, an assistant inspector general of police in Kenya's National Police Service, stating that Kenya independently (and without participation *585by U.S. officials) decided and acted to expel the Akasha Brothers from Kenya. (See"Massa Declaration," Dkt. No. 80-1.)

The Government also opposes the Akasha Brothers' requests for pretrial relief. First, the Government argues that the Akasha Brothers' request to preclude pretrial identifications should be denied because there are no pretrial identification procedures to suppress, and there is no basis for precluding in-court identification testimony during trial. (See Government Opp'n at 25-27.) Second, the Government argues that the Akasha Brothers' request to suppress any statements they made to the Government while they were under custodial interrogation by the DEA is moot because the Government will not offer any such statements at trial. (See id at 27.) Third, the Government argues that the Akasha Brothers' motion to preclude any potential evidence of their prior crimes and prior criminal or immoral acts is premature because the Government will provide notice pursuant to Rule 404(b) of the Federal Rules of Evidence prior to trial. (See id. at 27.) Fourth, the Government argues that it is in compliance with its Brady and Giglio discovery obligations, and the Akasha Brothers are not entitled to earlier disclosures. (See id. at 18-25.)

In reply, Baktash Akasha Abdalla argues that the Government fails to establish that the Akasha Brothers were "expelled" from Kenya, and the orders from the High Court of Kenya prohibiting Kenyan Law Enforcement Agents from removing the Akasha Brothers from the jurisdiction of the Kenyan courts constitute an objection by Kenya to the removal of the Akasha Brothers to the United States. Defendant also argues that the Government "manufactured" jurisdiction because the actions taken by Baktash Akasha Abdalla differ from those taken by the defendant in the case on which the Government relies, United States v. Campo Flores, No. 15 Cr. 765, 2017 WL 1133430 (S.D.N.Y. Mar. 24, 2017). (See"Baktash Reply," Dkt. No. 81.)

In reply, Ibrahim Akasha Abdalla argues that the Superseding Indictment should be dismissed because it fails to allege that Defendant committed a requisite jurisdictional act of the charged offenses. Defendant argues that venue is improper because the Superseding Indictment does not allege that any offense took place in the Southern District of New York. Ibrahim Akasha Abdalla also urges the Court to disregard the Massa Declaration. (See"Ibrahim Reply," Dkt. No. 82.)

II. DISCUSSION

A. Motions to Dismiss for Lack of Jurisdiction

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United States v. Abdalla, 334 F. Supp. 3d 582 (S.D. Ill. 2018).

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