Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. v.

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1 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA : : v. : 14-cr-141 (CRC) : AHMED ABU KHATALLAH : DEFENDANT S MOTION TO DISMISS COUNTS ONE AND TWO OF THE INDICTMENT AS UNCONSTITUTIONALLY VAGUE AND OVERBROAD Mr. Ahmed Abu Khatallah, by and through undersigned counsel and pursuant to Federal Rule of Criminal Procedure 12, respectfully moves this Honorable Court to dismiss Counts One and Two of the superseding Indictment [Dkt. # 19] ( Indictment ). These charges must be dismissed because 18 U.S.C. 2339A is unconstitutionally vague and overbroad. Factual Background Counts One and Two of the Indictment charge Mr. Abu Khatallah, respectively, with (1) conspiracy to provide material support and resource to terrorists resulting in death, in violation of 2339A; and (2) providing material support and resources to terrorists resulting in death, in violation of 2339A, and aiding and abetting and causing an act to be done, in violation of 18 U.S.C. 2, in connection with the attacks on the U.S. Special Mission and Central Intelligence Agency ( CIA ) Annex in Benghazi, Libya in September The Indictment charges that Mr. Abu Khatallah conspired to provide and provided material support and resources in furtherance of a number of alleged criminal actions, namely: murder of an internationally protected person, in violation of 18 U.S.C (Count Three);

2 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 2 of 10 murder of an officer and employee of the United States, in violation of 18 U.S.C (Counts Four through Six); attempted murder of an officer and employee of the United States, in violation of 18 U.S.C (Counts Seven through Nine); killing a person in the course of an attack on a federal facility involving the use of a firearm and a dangerous weapon, in violation of 18 U.S.C. 930(c) (Counts Ten through Thirteen); maliciously damaging and destroying U.S. property by means of fire and an explosive causing death, in violation of 18 U.S.C. 844(f) (Counts Fourteen and Fifteen); and maliciously destroying and injuring dwellings and property and placing lives in jeopardy within the special maritime and territorial jurisdiction of the United States and attempting to do the same, in violation of 18 U.S.C (Counts Sixteen and Seventeen). The Indictment alleges that, in furtherance of the conspiracy, Mr. Abu Khatallah informed others that there was an American facility in Benghazi posing as a diplomatic post, that he believed the facility was actually being used to collect intelligence, that he viewed U.S. intelligence actions in Benghazi as illegal, and that he was therefore going to do something about this facility. Indictment, Count One 20(a). It is further alleged that Mr. Abu Khatallah drove to the mission with other attackers, id. 20(b), and that he actively participated in the attack on the Mission by coordinating the efforts of his conspirators and turning away emergency responders, id. 20(e). Finally, the Indictment alleges that Mr. Abu Khatallah entered the Mission compound and supervised the plunder of material from the Mission s Office, including documents, maps and computers containing sensitive information about the location of the Annex. Id. 20(i). 2

3 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 3 of 10 I. Section 2339A Is Void For Vagueness. Argument As a matter of due process, a statute is unconstitutionally vague if it fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. United States v. Williams, 553 U.S. 285, 304 (2008). As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983). Put simply, [a] criminal statute must clearly define the conduct it proscribes. Skilling v. United States, 561 U.S. 358, 415 (2010) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). The material support to terrorists statute, 18 U.S.C. 2339A, fails this test. The statute not only fails to provide sufficient definiteness or fair notice as to the conduct prohibited, but also allows for arbitrary and overreaching enforcement. A. Section 2339A Is Impermissibly Vague Because It Does Not Provide Notice As to What Constitutes Terrorism. Section 2339A, entitled Providing material support to terrorists, states, in pertinent part, that [w]hoever 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 offenses will also be guilty of violating 2339A. The statute criminalizes providing material support or resources used in preparation for or carrying out a number of offenses, but does not provide sufficient definiteness with respect to how or when those actions will qualify as terrorism. 3

4 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 4 of 10 The Federal crime of terrorism is defined in 18 U.S.C. 2332b as an offense that is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct[.] 18 U.S.C. 2332b(g)(5)(A). Section 2339A includes a cross-reference to a specific subsection of 2332b, but it notably does not reference 2332b(g)(5)(A). The cross-referenced subsection, 2332b(g)(5)(B), only provides a list of statutes that could constitute a Federal crime of terrorism when committed with the requisite mental state defined in 2332b(g)(5)(A) -- i.e., when calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. The absence of a specific terrorism element in 2339A renders the statute unconstitutionally vague. The Fourth Circuit s opinion in United States v. Hassan, 742 F.3d 104, 148 (4th Cir. 2014), illuminates the point. In that case, when reviewing the application of the terrorism enhancement under the United States Sentencing Guidelines, the court found that a conviction under 2339A satisfied only one of the two prongs of the definition of a Federal crime of terrorism b(g)(5)(B) -- leaving the specific intent prong found at 2332b(g)(5)(A) open for resolution. In other words, a conviction under 2339A was insufficient for a presumption of terrorism. Yet many discussions of 2339A simply take for granted that some undefined element has transformed certain criminal actions from non-terrorist criminal activity into terrorist activity, leading to a charge or conviction under 2339A. The Congressional Research Service, for example, claims without citation that the defendant must know or intend that the support will assist in the commission of a federal crime of terrorism but notes that, although the enumerated crimes are those likely to be committed in a terrorist context, most do not include a terrorism element. Charles Doyle, Cong. Research Serv., R41334, Terrorism Material Support: A Sketch of 18 U.S.C. 2339A and 2339B, 7 (Jul. 19, 2010) 4

5 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 5 of 10 available at (emphasis added); see also Norman Abrams, The Material Support Terrorism Offenses, 1:5 J. Nat l Sec. L. & Pol y 8 n.10 (2010), available at This court s reading of the material support statute likewise has simply referred to the statutes crossreferenced in 2339A as terrorism-related criminal statutes. See Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 41 (D.D.C. 2010). Other courts have also assumed in their interpretations of the statute that the enumerated crimes are in fact crimes of terrorism. See, e.g., Hassan, 742 F.3d at 126 n.16 ( Section 2339A(a) prohibits the provision of material support or resources while knowing or intending that they are to be used in preparation for, or in carrying out, violations of certain terrorism statutes. ); United States v. Stewart, 590 F.3d 93, 116 (2d Cir. 2009) ( Section 2339A criminalizes the provision of material support or resources knowing or intending that they are to be used to assist in certain enumerated crimes of terrorism. ). In interpreting the statute, one must guess if particular conduct constitutes terrorism, a clear violation of the notice requirement. See Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) ( No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the [government] commands or forbids. ). This is true as applied to Mr. Abu Khatallah s case. The statute did not provide Mr. Abu Khatallah with clear notice of when his actions might be elevated beyond the conduct itself and amplified by the label terrorism. 1 The Indictment does not solve this problem, nor 1 This motion addresses only the material support provision charged in the Indictment, found at 18 U.S.C. 2339A. While the Supreme Court recently ruled that 2339B was not unconstitutionally vague as applied in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), that holding has no bearing on this motion. Indeed, the Court noted that [o]f course, the scope of the material-support statute may not be clear in every application. Id. at 21. 5

6 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 6 of 10 could it. A statute that is unconstitutionally vague cannot be saved by a more precise indictment... nor by judicial construction that writes in specific criteria that its text does not contain.... Skilling, 561 U.S. at (Scalia, J. concurring) (internal citations omitted). Even if an Indictment could remedy the statute s vagueness problem, the Indictment against Mr. Abu Khatallah does not. Count One alleges that Mr. Abu Khatallah did knowingly and intentionally conspire and agree with other conspirators to provide material support and resources to terrorists, that is, personnel including himself and others, knowing and intending that the material support and resources were to be used in preparation for and in carrying out certain criminal actions in violation of 18 U.S.C. 2339A. Indictment, Count One 18. Count Two alleges that Mr. Abu Khatallah did provide [such] material support and resources to terrorists in violation of 2339A. Indictment, Count Two 2. But the Indictment does not explain how or when Mr. Abu Khatallah s actions transformed from conspiring to perform criminal acts, to conspiring to or engaging in terrorist activities. Indeed, the incorporated statutes specifically implicated in the Indictment U.S.C. 930(c), 844(f), 1363, 1114, 1116, and 7 -- lack any explicit terrorist or terrorism element, and cannot remedy this fault. Neither the statute itself, nor those folded into it in the Indictment, provided Mr. Abu Khatallah with sufficient notice as required by the Due Process Clause. Finally, 2339A is impermissibly vague because it impinges on First Amendment rights. [W]here a vague statute abut(s) upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of (those) freedoms. Grayned, 408 U.S. at 109 (internal citations omitted). Because 2339A infringes upon speech, not just conduct, a strict scrutiny review of its constitutionality is appropriate. See Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010) (requiring a more demanding standard where the conduct triggering coverage 6

7 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 7 of 10 under the material-support statute consists of communicating a message, even where the statute generally functions as a regulation of conduct). The Indictment only colors Mr. Abu Khatallah s actions as terrorism by reference to his communications regarding his beliefs about the American presence in Benghazi. Specifically, the Indictment states that Mr. Abu Khatallah informed others that there was an American facility in Benghazi posing as a diplomatic post, that he believed the facility was actually being used to collect intelligence, that he viewed U.S. intelligence actions in Benghazi as illegal.... Indictment, Count One 20(a) (emphasis added). That Mr. Abu Khatallah held certain beliefs regarding the American presence in Benghazi, and that he communicated those beliefs to others, cannot be the basis for a conviction under 2229A. B. Section 2339A Invites Arbitrary and Overreaching Enforcement. In addition to being unconstitutionally vague because it fails to provide sufficient notice, the 2339A material-support provision also violates due process because it grants too much enforcement discretion to the government. A statute must give minimal guidelines to law enforcement authorities, so as not to permit a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections. Mannix v. Phillips, 619 F.3d 187, 197 (2d Cir. 2010) (quoting Kolender, 461 U.S. at 358) (internal quotation marks and brackets omitted in Mannix). Section 2339A casts too wide a net, leaving the government to determine who is rightfully detained and who is not under the material support statute. See Colautti v. Franklin, 439 U.S. 379, 390 (1979). Absent the inclusion of a clear terrorism element, 2339A could be applied to a host of garden variety criminal offenses not suited to the purpose of this federal law. 2 Anyone who commits any of the enumerated offenses under any 2 See, e.g., Yates v. United States, 135 S.Ct. 1074, 1081 (2015) (rejecting Government s unrestrained reading of the statute at hand); Bond v. United States, 134 S. Ct. 2077,

8 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 8 of 10 circumstances -- including any arson, kidnapping or murder for any purpose, so long as it constitutes one of the listed federal offenses -- could be charged with providing material support to terrorists under 2339A, by providing themselves as material support for the commission of the offense. Section 2339A leaves the determination of which violations of the enumerated statutes should be labeled terrorism and charged under 2339A completely to the discretion and judgment of law enforcement and prosecutors with no statutory guidance. The result will inevitably include arbitrary and capricious enforcement of the statute, making it void for vagueness. Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972). II. Section 2339A Is Overbroad In Violation of the First Amendment. A statute is overbroad when it leaves open the possibility that a person may be punished for engaging in protected speech, leading persons to avoid the protected conduct for fear of uncertain proscriptions. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972); accord, Smith v. Goguen, 415 U.S. 566, 573 (1974); Herdon v. Lowry, 301 U.S. 242, 259 (1937). In other words, the government may not ban unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002). This test is a related yet separate analysis from vagueness. Overbreadth challenges are by nature facial challenges, created to provide a forum for those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution.... Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). When the language of a statute threatens rights protected by the First Amendment, a litigant against whom the statute has been improperly applied may challenge the constitutionality of the statute for the benefit of those whose exercise of their rights may be chilled. Id. Thus a (2014) ( Here, in its zeal to prosecute... the Federal Government has displaced the public policy of the Commonwealth of Pennsylvania.... ). 8

9 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 9 of 10 defendant can raise a facial overbreadth challenge even if his specific conduct is not the type of protected activity he alleges the overbroad statute infringes upon. See Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) ( The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others. ). Even as applied to Mr. Abu Khatallah, however, the statute is overbroad. The actions attributed to Mr. Abu Khatallah in the Indictment, provided as evidence of a violation of 2339A, include the beliefs he held and the messages he communicated. As discussed above, the Indictment alleges, in support of the government s charge, that Mr. Abu Khatallah informed others about the American facility in Benghazi, that he believed the facility was actually being used to collect intelligence, [and] that he viewed U.S. intelligence actions in Benghazi as illegal.... Indictment, Count One 20(a) (emphasis added). That the statute reaches so far, and that the government seeks convictions based on Mr. Abu Khatallah s beliefs and communications, shows that the material support statute articulated in 2339A is impermissibly overbroad. Conclusion Mr. Abu Khatallah is being accused of conspiring to provide, and providing, material support to terrorists. These charges are based on an impermissibly vague and overbroad statute, in violation of the Due Process Clause and the First Amendment. For these reasons, the Court should dismiss Counts One and Two of the Indictment. 9

10 Case 1:14-cr CRC Document 92 Filed 08/03/15 Page 10 of 10 Respectfully submitted, A.J. KRAMER FEDERAL PUBLIC DEFENDER /s/ MICHELLE M. PETERSON MARY MANNING PETRAS Assistant Federal Public Defenders 625 Indiana Avenue, N.W., Suite 550 Washington, D.C (202) RICHARD JASPER (N.Y. Bar # ) 276 Fifth Avenue, Suite 501 New York, New York (212) (voice) (212) (facsimile) ricjasp@aol.com ERIC L. LEWIS (D.C. Bar #394643) JEFFREY D. ROBINSON (D.C. Bar #376037) LEWIS BAACH PLLC 1899 Pennsylvania Avenue, N.W., Suite 600 Washington, D.C (202) (voice) (202) (facsimile) eric.lewis@lewisbaach.com jeffrey.robinson@lewisbaach.com Counsel for Ahmed Abu Khatallah 10