Fatwah mandating the bloodshed of israelis everywhere
8 The district court is directed to revoke Stewart's and Yousry's 9 bail pending appeal and to order them to surrender to the United 10 States Marshal to begin serving their sentences forthwith as 11 directed by the district court. He is subject to "Special Administrative 20 Measures" ("SAMs") restricting his ability to communicate with 21 persons outside of the prison in which he is incarcerated so as 22 to prevent him from continuing to lead terrorist organizations 23 and their members. § 2, and of conspiring to provide and 2 conceal such support in violation of 18 U. 17 We reject the remaining challenges to the convictions. 20 In November 1997, despite the cease-fire, a group 21 associated with al-Gama'a attacked, killed, and mutilated the 22 bodies of more than sixty tourists, guides, and guards at the 23 Hatshepsut Temple in Luxor, Egypt. The 9 government does not deny that section 2339A may not be used to 10 prosecute mere advocacy or other protected speech, but contends 11 that the defendants were prosecuted for criminal actions that did 12 not amount to protected speech. 22 Following the hearing and in response to subsequent orders from 23 the district court, the government filed supplemental ex parte 24 confidential responses dated October 6, 2006, October 12, 2006, 25 and October 13, 2006 for in camera review. In that public order, 4 the district court noted that it had filed an "ex parte Order 5 under seal containing classified information which explains in 6 detail the reasons for the Court's decision," and found that 7 there was a 8 compelling reason for filing the additional 9 Order ex parte and under seal because it 10 contains classified information that cannot 11 reasonably be segregated from the other 12 material in the Order, and that such a filing 13 is consistent with the Classified Procedures 14 Act and the rights of the defendants. 12 Judge Calabresi concurs, and also files a separate 13 concurring opinion. The government cross-appeals from the 24 defendants' sentences. 18 We affirm the district court's rejection of Sattar's vindictive 19 prosecution claim because there is insufficient evidence to 20 support a finding that the government's pre-trial decision to add 21 new charges against Sattar amounted to an effort to punish him 22 for exercising his constitutional rights. Rifa'i Taha Musa ("Taha") -- 24 a military leader of al-Gama'a, a follower of Abdel Rahman, and 25 an unindicted co-conspirator herein -- was involved in the -14- 1 incident.4 Alaa Abdul Raziq Atia ("Atia"), later a leader of 2 al-Gama'a's military wing in Egypt, was also involved in the 3 killings. 13 Resolution of this dispute does not turn on whether the 14 prosecution introduced evidence of "pure speech." "Numerous 15 crimes under the federal criminal code are, or can be, committed 16 by speech alone," and certain crimes "are characteristically 17 committed through speech." Rahman, 189 F.3d at 117. Stewart argues that, at worst, she broke a 19 promise, and that the statute criminalizes false statements, not 20 false promises. On May 16, 2000, Stewart signed 22 an affirmation stating that she would ("shall") abide by the 23 SAMs. The 16 government also argued that none of the defense counsel was 17 properly cleared for access to the information and that, "without 18 going into the details of the classification level of our 19 submission, I don't think any defense counsel would ever have a 20 need to know the details of the terrorist surveillance program, 21 especially in this case." H'g Tr. After additional 26 materials were submitted by the government, the district court -76- 1 granted, in part, the motion for disclosure, ordering the 2 government to make specified disclosures,25 but otherwise denied 3 the motion. He is subject to "Special Administrative Measures" ("SAMs") restricting his ability to communicate with persons outside of the prison in which he is incarcerated so as to prevent him from continuing to lead terrorist organizations and their members. And, because Stewart's conduct was materially different from, and more serious than, the conduct of other lawyers representing Abdel Rahman who may also have violated the SAMs, we affirm the district court's rejection of Stewart's claim that she was selectively prosecuted on account of her gender or political beliefs. Transcript of Conversation between Ahmed Abdel Sattar and Rifa'i Ahmad Taha Musa, Sep. Section 2339A requires instead that the defendant provide support or resources with the knowledge or intent that such resources be used to commit specific violent crimes. The government further asserted that Stewart and Yousry "conceal[ed] and disguise[d] the nature, location, and source" of their material support by means of the defendants' covert conduct disguising Abdel Rahman's participation as a co-conspirator. The government had initially argued that Stewart and Yousry could be convicted for providing themselves as "personnel" to a foreign terrorist organization and by providing communications equipment to the conspiracy. Nor shall I use my meetings, correspondence or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman. From Stewart's smuggling messages to and from Abdel Rahman, the factfinder could conclude that the assertion about her intent was knowingly and willfully false when it was made. Uram, 148 F.2d 187, 189 (2d Cir.1945) (concluding that allegation of a false representation as to future use of loan proceeds was "an allegation of a present statement and the assertion of existing intent"); cf. Shah, 44 F.3d 285, 294 (5th Cir.1995) (observing that "a promise may amount to a `false, fictitious or fraudulent' statement if it is made without any present intention of performance and under circumstances such that it plainly, albeit implicitly, represents the present existence of an intent to perform"). The government cross-appeals from the defendants' sentences. We also conclude that the district court did not abuse its discretion in declining to sever the trial of Stewart and Yousry from that of Sattar in light of the general preference for joint trials, the specific charges at issue here, and the district court's curative instructions. 20, 1999, at 6-7 (emphasis omitted, parenthetical in original). Whoever, within the United States, provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [various enumerated statutes related to terrorism] or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such an act, shall be [subject to criminal punishment].currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials. The government charged that the defendants provided "material support or resources" in the form of "personnel" — namely, Abdel Rahman — to the Count-Two conspiracy, knowing or intending that Abdel Rahman, as an active co-conspirator, would help commit crimes. After the dismissal of the section 2339B charges and following the filing of the superseding indictment, however, the government abandoned those contentions. As an initial matter, Stewart and Yousry challenge the sufficiency of the evidence supporting their convictions on this count. Stewart seeks support for her argument from Williams v. Lindo Mc Cluer ; for the Montana Pardon Project, Clemens P.
13 ------------------------------------- 14 Before: WALKER, CALABRESI, and SACK, Circuit Judges. Garcia, -2- 1 United States Attorney for the Southern 2 District of New York, Andrew S. Maimin, Diane Gujarati, 4 Katherine Polk Failla, Celeste L. 5, 2001), and remains 25 so designated today, see Foreign Terrorist Organizations, Fact 26 Sheet, Department of State, Office of the Coordinator for -10- 1 Counterterrorism (Apr. 16 The May 11, 1998, SAMs applicable to Abdel Rahman 17 "prohibited [him] from having contact with . To enforce this general prohibition, the 23 measures regulated Abdel Rahman's telephone contacts, id. ¶ 4 5, and prohibited him from "talk[ing] with, or otherwise 5 communicat[ing] with, any representative of the news media," 6 including "through [his] attorney(s)/staff, or otherwise," id. The measures also provided for the monitoring of all non- 8 legal visits. 15 Subsequent versions of the SAMs retained similar 16 prohibitions and screening mechanisms including the prohibition 17 against communications with the news media. 7 Various members of the team, including Stewart and 8 Yousry, also maintained contact with defendant Ahmed Abdel 9 Sattar, who had served as a paralegal during Abdel Rahman's 10 trial. -38- 1 provision of material support without regard to what the support 2 is for. After the dismissal of the section 18 2339B charges and following the filing of the superseding 19 indictment, however, the government abandoned those contentions. 18 Section 2339B criminalizes the knowing provision of material support. The discussion goes 12 well beyond the abstract and contemplates the coordination with 13 Atia of violent actions, presumably along the lines of the Luxor 14 massacre. 18 Stewart and Yousry also assert that they did not provide material 19 support in the form of "personnel" to the Count-Two conspiracy. 19 Through CIPA, Congress established procedures for 20 handling classified information in criminal cases. 17 The court may permit the United States to 18 make a request for such authorization in the 19 form of a written statement to be inspected 20 by the court alone. United States, (1957), in the context of 9 the so-called informer's privilege in criminal prosecutions, see 10 Aref, 533 F.3d at 79-80.26 11 First, the district court must determine whether the 12 material in dispute is discoverable, and if so, whether the 13 state-secrets privilege applies. As noted in the 15 district court's public order denying the motion to compel, 16 however, the district court relied on an opinion by a sister 17 circuit embracing a test similar to that embraced by the Aref 18 panel. Count Four charges Sattar, Stewart and Yousry with conspiring to defraud the United States in violation of 18 U. (Ind.¶ 2.) IG has allegedly operated in the United States from the early 1990s until the date of the filing of the Indictment, particularly in the New York metropolitan area. ¶ 12.) According to the Indictment, IG's objectives in the United States include (1) the establishment of the United States as a staging ground for violent acts against targets in the United States and abroad; (2) the recruitment and training of members; and (3) fundraising for jihad actions in the United States and overseas. (Ind.¶ 2.) IG also opposed the United States because the United States had taken action to thwart IG, including by the arrest, conviction, and continued confinement of its spiritual leader Omar Ahmad Ali Abdel Rahman, a/k/a "Omar Ahmed Ali," a/k/a "Omar Abdel Al-Rahman," a/k/a "The Sheikh," a/k/a "Sheikh Omar" ("Sheikh Abdel Rahman"). Garcia, United States Attorney for the Southern District of New York, Andrew S. Maimin, Diane Gujarati, Katherine Polk Failla, Celeste L. § 2339A is neither unconstitutionally vague as applied nor a "logical absurdity," as Stewart asserts — and that the evidence was sufficient to sustain the convictions. Abdel Rahman dictated a letter to Yousry in response. Count Five charges the knowing provision of aid — a substantive, not inchoate, offense — and Count Four, pursuing a conspiracy to commit that substantive offense, functions as a traditional conspiracy charge. But the government need not have established beyond a reasonable doubt that Stewart or Yousry engaged in a conspiracy to kidnap or commit murder abroad; neither was charged with doing either. On May 7, 2001, Stewart signed a revised affirmation to the same effect and telecopied it to the same office. § 1014 for his making of a "false statement" — a check drawn on an account containing insufficient funds — for the purpose of influencing the actions of a federally insured institution. On this basis, a reasonable jury could have properly concluded that Stewart violated section 1001 as charged in Counts Six and Seven. Finally, the defendants argue that the district court erred in addressing post-conviction claims of juror misconduct. of Mineola, 273 F.3d 494, 499 (2d Cir.2001) (internal quotation marks omitted); accord United States v. Supp.2d at 103 (denying selective prosecution claim), cf. Supp.2d at 311-14 (denying vindictive prosecution claim), and Order, Sept. Count Two charged Sattar with conspiring to murder persons in a foreign country. Ruhnke, of counsel) Rothman Schneider Soloway & Stern, LLP, New York, NY, and Ruhnke & Barrett, Montclair, NJ, for Defendant-Appellant-Cross-Appellee Mohammed Yousry. Barkow, Assistant United States Attorney (Michael J. From these documents, Abdel Rahman first learned of Kidwani's death. On May 26, 2000, Stewart submitted the affirmation to the United States Attorney's Office for the Southern District of New York. A check "d[oes] not, in terms, make any representation as to the state of [the drawer's] bank balance" but "serve[s] only to direct the drawee banks to pay the face amounts to the bearer, while committing [the drawer] to make good the obligations if the banks dishonor the drafts." Id. Based on her repeated affirmations, and her repeated violations of those affirmations, moreover, a reasonable jury could have concluded that at the time Stewart executed and submitted the affirmations at issue, she did not intend to abide by them — in other words, that her representations were knowingly false when made. The defendants also argue that the district court made various evidentiary errors. For that reason and those set forth by the district court in its decisions addressing the matter, see Sattar V, 395 F. Sattar argues that the government's decision to file the superseding indictment and add the charge of violating section 956 "was a retaliatory act . But the district court did not abuse its discretion in this respect. This is not a case where "the risk that the jury [would] not, or [could] not, follow instructions [was] so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system [could not] be ignored." Bruton v.