United States v. Hausa

258 F. Supp. 3d 265
District Court, E.D. New York·Decided June 27, 2017·No. 12 Cr. 0134 (BMC)·Published·Cited by 2 cases

Opinion

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Before the Court are two motions by defendant — one motion to dismiss for lack of jurisdiction, or in the alternative for acquittal, as to Count Two of the Indictment and one motion for a judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29(a), as to Counts One (or to dismiss the Indictment as to this Count, in the alternative), Three, Four, and Six. For the reasons that follow, defendant’s motions are denied.

BACKGROUND

As set forth in the Indictment and as the Government proved at trial, defendant Ibrahim Suleiman Adnan Adam Harun was an al Qaeda operative. He traveled to Afghanistan and joined al Qaeda hi the weeks before September 11,2001. Thereafter, he received training at two al Qaeda training camps, participated in attacks on U.S. and Coalition troops in Afghanistan, one of which left two American soldiers dead and resulted in serious injury to others, and conspired to attack U.S. facilities in Africa as part of an external operations assignment.

Harun confessed to these acts during a number of interviews, the last several of which were ■ Mirandized interviews with representatives from the U.S. Attorney’s Office for the Eastern District of New York. Specifically, during the Mirandized interviews, Harun recounted his path to jihad, stating that approximately two weeks prior to September 11, 2001, he had traveled to Afghanistan for the purpose of joining a jihadist fighting group so that he could fight in Chechnya or elsewhere. He described attending two training camps and crossing the border from Pakistan to attack American and Coalition forces stationed in Afghanistan.

Harun specifically described attacks against the American forces at Forward Operating Base (“FOB”) Shkin in Afghanistan, in either 2002 or 2003, acts which form the basis of some of the Counts charged in the Indictment. Harun stated that he believed that one or more Americans were wounded during-one such .attack and that, he, either saw or. heard a vehicle drive away with a wounded soldier. He recounted throwing a grenade that exploded directly between two soldiers and stated that he was certain that both men were injured or killed by the grenade.

Harun recounted conversations with certain al Qaeda leaders, including one with the head of al Qaeda’s external operations, where Harun expressed his desire to engage in attacks against Americans outside of Afghanistan. Harun was thereafter assigned to carry out such an attack and traveled to Nigeria, where he sought out a suitable target for a terrorist attack.- He said that he wanted to focus on targeting offices and buildings belonging to the United States, including the U.S. Embassy in Abuja and other American and Western diplomatic facilities. He also stated that the inspiration for such an attack was the [268]*268U.S. embassy bombings in Nairobi, Kenya, and Dares Salaam, Tanzania.

During his time in Nigeria, Harun was exchanging letters with al Qaeda leader Hamza Rabia through a courier named Mohamed Ashafa. Ashafa traveled back and forth between Hamza Rabia in Pakistan and Harun in Nigeria, but in 2004, Ashafa was caught by the Pakistanis as he attempted to leave the country. After Ashr afa’s arrest, Hamza Rabia contacted Ha-run by telephone and told him to leave Nigeria immediately. Harun fled to Niger, but he traveled back and forth to Nigeria at times to communicate with Hamza Ra-bia by email.

After his plans were disrupted in Nigeria, Harun ultimately made his way through Niger to Libya with the ultimate goal of reaching Europe to carry out terrorist attacks against Western targets there. However, in January 2005, Harun was captured in Libya and held in Libyan custody until June 2011, near the time of the fall of former Libyan leader Muammar Qaddafl’s regime, at which time he was released onto a refugee' ship bound for Italy.

The ship onto which Harun was placed, the Excelsior, was an Italian ship bound for Taranto, Italy. While on board, Harun declared that he was a member of al Qae-da, assaulted Italian police officers, was arrested, and thereafter charged in Italian criminal court. As part of the Italian criminal process, Harun was interviewed on several occasions in Italy, including (i) on June 24, 2011, by Italian police officers onboard the Excelsior; (ii) on June 25, 2011, by Italian officials in the presence of a defense attorney in Agrigento, Italy; (iii) on June 27,. 2011, in an Agrigento court before a preliminary investigative judge and with a defense attorney; (iv) on July 25,2011, by Italian law enforcement in the presence of two defense attorneys; and (v) on August 24, 2011, by Italian officials in the presence of a defense attorney. Thereafter, in September 2011, pursuant to a Mutual Legal Assistance Treaty request to the Italian government, representatives of the U.S. Government traveled to Agrigen-to to interview Harun and the Italian law enforcement officers involved in the case. These latter interviews of Harun, which are the Mirandized interviews during which Harun recounted his acts, took place on September 14,15, and 16,2011.

Harun was later extradited to the United States and indicted in 2012. The Government charged Harun with conspiring to murder U.S. Nationals, in violation of 18 U.S.C. §§ 1111(a) and 2332(b)(2) (Count One); conspiring to attack a U.S. government facility, in violation of 18 1 U.S.C. § 2332f(a) (Count Two); conspiring to pro-yide material support to al Qaeda, in violation of . 18 U.S.C. § 2339B (Count Three); providing and attempting to provide material .support to al Qaeda, in violation of 18 U.S.C. § 2339B (Count Four); using firearms in furtherance of one or more crimes of violence, , in violation of 18 U.S.C. § 924(c) (Count Five); and using and carrying an explosive to commit one or more felonies, in violation of 18 U.S.C. § 844(h) (Count Six).

This Court presided over his trial in March 2017, during which time the Government presented evidence of the foregoing events, including the taped audio from the September 14, 15, and 16, 2011 Miran-dized interviews. But the Government did not rest on the taped confessions .alone; rather, the Government presented detailed testimonial, forensic, and documentary evidence that corroborated many of defendant’s own statements during .the Miran-dized interviews. This additional evidence included the testimony of the Italian coun-terterrorism officer for the Guardia di Fi-nanza who arrested defendant aboard the [269]*269Excelsior and to whom Harun declared he was an al Qaeda fighter. In addition, the Government presented testimony from the Deputy Commissioner of the Italian State Police and a then-lieutenant in .the Carabi-nieri Corps who were also aboard the- Excelsior, who also interviewed Harun.and whom Harun assaulted.

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United States v. Hausa, 258 F. Supp. 3d 265 (E.D.N.Y. 2017).

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