Opinion
NO. CR99-666C.
April 3, 2001
Thomas W. Hillier, II, Federal Public Defender, Michael Filipovic, Assistant Federal Public Defender, Jo Ann Oliver, Assistant Federal Public Defender, Attorneys for Ahmed Ressam.
MOTION AND MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 1
NOW COMES the defendant, Ahmed Ressam, by undersigned counsel, and asks this Court to consider the following motion and memorandum of law in support of his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a).
ARGUMENT
In various pretrial pleadings (Dkt. Nos. 123, 146 183), the defendant has argued that Count 1 is fundamentally flawed in several respects: because the Indictment is too vague and indefinite to provide adequate notice of the charge against him, because it alleges a crime that does not exist, i.e., conspiracy to commit a conspiracy; because it may allege a conspiracy that does not exist under Washington law insofar as it alleges a conspiracy to commit offenses defined in terms of recklessly causing a result; and because it could not prove that the State of Washington would have criminal jurisdiction over the offenses alleged. As the defendant pointed out, these defects appeared to stem from the inability of the government to identify the target of the alleged conspiracy.
In its case-in-chief, the government introduced no evidence about the target of the conspiracy. Consequently, the defendant hereby renews all of his objections to Count 1. Additionally, apart from any legal deficiencies in the Indictment, there is simply a failure of proof, which compels this motion for a judgment of acquittal as to this count.
This failure of proof disclaimed below, supports Mr. Ressam's position that the State of Washington would not have jurisdiction over the offenses alleged. As noted, the defendant has also objected to his Indictment as charging a conspiracy to commit a conspiracy and as failing to identify which of the underlying substantive crimes allegedly was violated. A fortiori, the government also has failed to introduce sufficient evidence to prove their underlying offenses.
It is undisputed that, in order to prove a violation of 18 U.S.C. § 2332b(a)(1)(B), the government must introduce evidence from which a jury could conclude beyond a reasonable doubt that the defendant conspired "to destroy or damage any structure, conveyance, or other real or personal property within the United States." This requires proof that the defendant was a member of a conspiracy that had as its objective the destruction of property within the United States, that he knew this was the objective of the conspiracy, and that he intended to help accomplish that objective. See, e.g., Ingram v. United States, 360 U.S. 672 (1959) (knowledge of the objective of the conspiracy is an essential element of any conspiracy conviction); United States v. Monroe, 552 F.2d 860, 862-63 (9th Cir.), cert. denied, 431 U.S. 972 (1977).
The government has not established proof of any of these elements. There is an absence of any evidence, either direct or circumstantial, that Mr. Ressam knew there were explosives in the car, let alone their intended destination. Most glaring however, is the lack of evidence that he intended to help accomplish the objective of the alleged conspiracy, or that he even knew what the objective was. In fact, the government has not even introduced sufficient evidence from which a jury could find that any two persons, even excluding Mr. Ressam, agreed to destroy property within the United States. Under these circumstances, Mr. Ressam is entitled to a judgment of acquittal on this count.
Where the government has proven a conspiracy, evidence establishing a defendant's connection with it, even though the connection is slight, is sufficient to convict the defendant of conspiracy. United States v. Bautista-Avila, 6 F.3d 1360, 1362 (9th Cir. 1993). However, the evidence must show that the defendant had "knowledge of the conspiracy and acted in furtherance of it. Mere casual association of conspiring people is not enough." Id. (quotation and citation omitted) (emphasis in original). See also United States v. Roy, 589 F.2d 1258, 1268-69 (5th Cir. 1979) ("The essence of conspiracy is agreement; `(n)obody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it.'").
In this case, the government cannot take advantage of that principle because there was insufficient evidence of a conspiracy, i.e., an agreement by two or more persons, other than Mr. Ressam, to destroy properly within the United States. Although the government need not show evidence of an express agreement, see United States v. Hegwood, 977 F.2d 492, 497 (9th Cir. 1992) (agreement element may be inferred from conduct), no evidence in this case was introduced from which an agreement to accomplish the specific goal in this case — the destruction of property within the United State — may be inferred.
Although the evidence introduced by the government would support a finding that Mr. Ressam had knowledge of the timing devices found in the trunk of the car he was driving, it would not support a finding that he knew there were explosives in the car. Still less was there any evidence that he knew the explosives would be used to destroy real or personal property, that the property was located within the United States, and that he intended to help accomplish that goal. See, e.g., United States v. Hrasonich, 819 F.2d 253, 254 (9th Cir. 1987) (even if defendant knew alleged conspirator intended to use him to hide true ownership of property in order to evade income tax, defendant's conviction of conspiracy to defraud the United States in the "ascertainment, computation, assessment and collection" of the personal income taxes of a third party could not stand because government did not show defendant knew that was alleged objective of conspiracy).
Even if Mr. Ressam's behavior is consistent with someone involved in a conspiracy of this nature, it is equally consistent with someone who is "unwittingly associating with individuals" involved in such a conspiracy. Bautista-Avila, 6 F.3d at 1362. Consequently, he is entitled to a judgment of acquittal on this count. "When there is an innocent explanation for defendant's conduct as well as one that suggests that the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one." Id. (quoting United States v. Vasquez-Chan, 978 F.2d 546, 549 (9th Cir. 1992)). The government introduced no evidence that Mr. Ressam knew the goal of the conspiracy was to destroy real or personal property and more specifically, that the target of the conspiracy was within the United States. Where the objective of conspiracy, as here, includes a particular location, the defendant's knowledge must extend to the identity of that location. See, e.g., United States v. Conroy, 589 F.2d 1258, 1270 (5th Cir. 1979) ("Conspiracy to import a controlled substance into the United States requires proof of an agreement to commit every element of that substantive offense. Just as defendant cannot be convicted of such a conspiracy without knowledge that the substance he was carrying was controlled . . . so the government must meet the burden of showing that the conspiracy to import was directed at the United States. . . .");United States v. Rubies, 612 F.2d 397 (9th Cir. 1979) (the Ninth Circuit, citing to United States v. Conroy, assumed, without deciding, that for purposes of sufficiency argument that actual knowledge of the true destination was a required element to convict defendant of importing marijuana into the United States).
Where the goal of a conspiracy is not realized, this may present particular problems of proof. In a somewhat different but nonetheless instructive context, the Supreme Court recognized that in certain conspiracy cases, where the object of the conspiracy was not identified, there was a need for proof that would not otherwise have been required if the conspiracy had been consummated. United States v. Fiola, 420 U.S. 671 (1975). The conspiracy in that case was to assault federal officers. The court recognized that the general rule that "where knowledge of the facts giving rise to federal jurisdiction is not necessary for conviction of a substantive offense embodying a meris rea requirement, such knowledge is equally irrelevant to questions of responsibility for conspiracy to commit that offense" id. at 694, was subject to an exception for the situation where knowledge of the parties to a conspiracy is necessary to establish the existence of federal jurisdiction. Id. The court stated as follows:
Where . . . there is an unfulfilled agreement to assault, it must be established whether the agreement, standing alone, constituted a sufficient threat to the safety of a federal officer so as to give rise to federal jurisdiction. If the agreement calls for an attack on an individual specifically identified, either by name or by some unique characteristic . . . and that specifically identified individual is in fact a federal officer, the agreement may be fairly characterized as one calling for an assault upon a federal officer, even though the parties were unaware of the victim's actual identity and even though they would not have agreed to the assault had that known that identity. Where the object of the intended attack is not identified with sufficient specificity so as to give rise to the conclusion that had the attack been carried out the victim would have been a federal officer, it is impossible to assert that the mere act of agreement to assault poses a sufficient threat to federal personnel and functions so as to give rise to federal jurisdiction.Id. at 694.
This analysis informs the inquiry whether the government offers sufficient evidence of the conspiracy in the present case, where the conspiracy was never consummated, and its object was not thereby made known. The need to prove that the object of the conspiracy was property within the United States is even stronger here, however, because the location, i.e., within the United States, is not simply a jurisdictional fact but an element of the substantive offense and conspiracy offense under 18 U.S.C. § 2332b(a)(1)(B). Compare Fiola, 420 U.S. at 676 (because the "federal officer" requirement under 18 U.S.C. § 111 was intended to federalize every assault which happens to have a federal officer as its victim, the requirement is jurisdictional only and therefore scienter is not a necessary element of substantive offense under§ 111).
The jurisdictional bases for § 2332b are enumerated in subsection (b) of that statute. The indictment alleged subsection (A) of § 2332b(1), "alleging that the conspirators utilize[d] a facility of foreign commerce." The language in § 2332b(a)(1)(B), "within the United States," is part of the elements of the crime. To assume otherwise would be to ignore the fundamental rule of statutory construction that all words in a statute must be given meaning. See Williams v. Taylor, 529 U.S. 362, 364 (2000) (under the "cardinal principle of statutory construction . . . courts must giver effect, if possible, to every clause and word of a statute[.]").
CERTIFICATE OF SERVICE
I hereby certify that on April 3, 2001, I caused to be hand delivered a copy of MOTION AND MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 1, to:
Francis J. Diskin Chief Assistant U.S. Attorney 601 Union Street, Ste. 5100 Seattle, Washington 98101
Andrew Hamilton Assistant U.S. Attorney 601 Union Street, Ste. 5100 Seattle, Washington 98101
Steven Gonzalez Assistant U.S. Attorney 601 Union Street, Ste. 5100 Seattle, Washington 98101
DATED this 3rd day of April, 2001.
Michael Filopovic
DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 7 PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 29(a)
NOW COMES the defendant, Ahmed Ressam, by his attorneys, Federal Public Defender Thomas W. Hillier, II, Assistant Federal Public Defender Michael Filipovic, and Assistant Federal Public Defender Jo Ann Oliver, and hereby moves for a judgment of acquittal as to Count 7 of the Second Superseding Indictment, pursuant to Federal Rule of Criminal Procedure 29 (a).
In support of this motion, the Court is asked to consider the records and files herein, the testimony of evidence presented during the government's case-in-chief, as well as the memorandum of law submitted along with this motion.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 7
NOW COMES the defendant, Ahmed Ressam, by undersigned counsel, and asks this Court to consider the following memorandum of law in support of his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a).
FACTS
Count 7 of the Second Superseding Indictment alleges:
(Transportation of Explosives)
On or about December 14, 1999, at Port Angeles, in the Western District of Washington, AHMED RESSAM and ABDELMAJID DAHOUMANE, not being licensees or permittees under the provisions of Chapter 40 of Title 18 of the United States Code, knowingly transported and shipped, and caused to be transported and shipped, in interstate and foreign commerce, from Canada into the United States, explosive materials, that is, hexamethylene triperoxide diamine, cyclotrimethylene trinitramine, and a nitroglycerine equivalent identified as ethylene glycol dinitrate.
All in violation of Title 18, United States Code, Sections 842(a)(3)(A); 844(a); and 2.
ARGUMENT
The defendant's Motion for Judgement of Acquittal on Count 7 must be granted because Mr. Ressam's conduct fits within 18 U.S.C. § 845, a statutory exception to the charged offense. In United States v. Petrykievicz, 809 F. Supp. 794 (W.D. Wash. 1992), the Court, relying on United States v. Illingworth, 489 F.2d 264 (10th Cir. 1973), held that the 18 U.S.C. § 845 exception to 18 U.S.C. § 842 (a)(3)(A) and 844(a) is applicable when the Department of Transportation regulates explosive materials. 809 F. Supp. at 799. The Department of Transportation regulates the three explosive materials carried by Mr. Ressam on the ferry vessel. Accordingly, the government cannot convict Mr. Ressam of 18 U.S.C. § 842 (a)(3)(A) and 844(a) and Mr. Ressam must be acquitted of the violations alleged in Count 7.
For the Court's convenience, a copy of United States v. Petrykievicz, 809 F. Supp. 794 (W.D. Wash. 1992), is appended hereto as Attachment A.
Chapter 40 of Title 18 of the United States Code contains statutes regulating the importation, manufacture, distribution, and storage of explosive materials. Chapter 40 consists of sections 841 through 848 of Title 18. Sections 842(a)(3)(A) and 844(a) of Title 18, the violations alleged in Count 7 of the indictment, proscribe the transportation of explosives in interstate or foreign commerce. Congress, however, also created an exception to the application of those sections of Chapter 40. Title 18 U.S.C. § 845, entitled "Exceptions; relief from disabilities," provides, in pertinent part:
(a) Except in the case of subsections (l), (m), (n), or (o) of § 842 and subsections (d), (e), (f), (g), (h), (i), of section 844 of this title, this chapter [i.e., Chapter 40] shall not apply to:
(1) any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety;18 U.S.C. § 845 (a)(1) (emphasis added). In enacting this exception, Congress intended that certain provisions of Chapter 40, including §§ 842(a)(3)(A), and 844(a), would not be applicable to aspects of the transportation of explosive materials regulated by the Department of Transportation. H. Rep. No. 91-1549, 91st Cong., 2d Sess. 2 (1970),reprinted in 1970 U.S. Code Cong. and Admin. News 4047.
Thus, under § 845(a)(1), a person cannot be convicted of a violation of Chapter 40 for conduct which is regulated by the Department of Transportation, unless the charge falls within the enumerated sub-sections for which prosecution is still permitted. The conduct which forms the basis of the charge and evidence in Count 7 of the indictment against Mr. Ressam, the transportation of the listed chemicals, is regulated by the Department of Transportation. See, e.g., 49 C.F.R. § 172.101 (1999). The Department of Transportation regulates many aspects of the transportation in interstate and foreign commerce of the explosives allegedly transported by Mr. Ressam. Therefore, his conduct falls within the exception to Chapter 40 violations created by Congress in § 845(a)(1), and Count 7 of the indictment must be dismissed.
A copy of the relevant pages of the table in 49 C.F.R. § 172.101 (1999) that reflect the Department of Transportation's regulation of these materials is annexed hereto as Attachment B.
Among the many regulations promulgated by the Department of Transportation that would apply to Mr. Ressam's conduct are the following:
49 C.F.R. § 172.1 lists and classifies those materials which the Department of Transportation has designated as hazardous materials for purposes of transportation and prescribes the requirements for shipping papers, package marking, labeling, and transport vehicle placarding. See, Attachment C.
49 C.F.R. § 172.101 is the Hazardous Materials Table (Table) that lists Hexamethylene Triperoxide Diamine, Ethylene Glycol Dinitrate, and Cyclotrimethylene Trinitramine as regulated materials. See, Attachment B.
49 C.F.R. § 176.1 prescribes additional requirements with respect to the transportation of hazardous materials by vessel. See, Attachment D.
49 C.F.R. § 176.3 (b) states that a carrier may not transport by vessel any explosive or explosive composition described as forbidden for transportation by the Department of Transportation. See, Attachment E.
49 C.F.R. § 176.88 states that regulations apply to vehicles containing hazardous materials bring transported on board ferry vessels. See, Attachment F.
49 C.F.R. § 176.90 prohibits a private automobile which is carrying any Class 1 (explosive) material from being transported on a passenger-carrying ferry vessel unless the Class 1 (explosive) material is in compliance with the Department of Transportation's packaging, labeling, marking, and certification requirements. See, Attachment G.
In United States v. Petrykievicz, Judge Zilly granted the defendant's motion for judgment of acquittal of a count charging the identical offense charged in Count 7 of the indictment against Mr. Ressam, i.e., §§ 842(a)(3)(A), and 844(a), based on precisely the same argument raised herein. To that point the only circuit court that had analyzed this issue was United States v. Illingworth, 489 F.2d 264 (10th Cir. 1973), which had reached the same result.
For the Court's convenience, a copy of United States v. Illingworth, 489 F.2d 264 (10th Cir. 1973), is appended hereto as Attachment H.
Like Mr. Ressam, the defendant in Petrykeivicz was charged with knowingly transporting and shipping and causing to be transported and shipped in foreign commerce an explosive material. On a commercial flight from London, England to Seattle, Washington, Mr. Petrykeivicz carried a safety fuse and approximately one pound of explosive materials, pentaerythritol tetranitrate (PETN), in his luggage. 809 F. Supp. at 795. Applying § 845's exception, Judge Zilly dismissed the counts against Mr. Petrykievicz alleging criminal violations under U.S.C. §§ 842(a)(3)(A) and 844(a). The Court stated that "[i]t is undisputed that the Department of Transportation regulates some aspects of the transportation of explosive materials, including PETN and safety fuses." Id. at 796. The Court reasoned that because some aspects of the transportation of explosives are regulated by the Department of Transportation, the exception of § 845 applies to all aspects of the transportation of explosive materials. Id. Although the Court concluded that § 845 is ambiguous, the Court applied the rule of lenity in the construction of the statute and concluded that the Department of Transportation's regulation of the explosive materials made the exception applicable. Id. at 799.
In Illingworth, the Tenth Circuit applied § 845's exception to a prosecution commenced under the same statute involved here, 18 U.S.C. § 842 (a)(3). The defendant in Illingworth was charged with transporting dynamite in interstate commerce. The Tenth Circuit held that § 845's exception prohibited the defendant's conviction under § 842(a)(3)(A) because the transportation of dynamite — like the transportation of ethylene glycol dinitrate, hexamethylene triperoxide diamine, and cyclotrimethylene trinitramine — is regulated by the Department of Transportation. Illingworth, 489 F.2d at 265-66. In reaching its decision the Illingworth Court tracked the various statutory and regulatory provisions providing the Department of Transportation with the authority to regulate the transportation of certain explosives. Thus, the Court concluded that:
[t]here is no ambiguity in the statutory exception; nor is there any question of the existence of alternative statutes open to the prosecution in this case by reason of the explicit exception in 18 U.S.C. § 845 (a)(1) to Section 842's application. Congress has provided this exception to permit regulation by appropriate authorities and they have done so.Illingworth, 489 F.2d at 266. Because § 845's "exception refers to materials which are regulated by the Department, Illingworth, 489 F.2d at 265 (emphasis in original), Mr. Illingworth could not be convicted under § 842(a)(3). Just as the dynamite that Mr. Illingworth carried on an airplane fell within § 845's exception, so too does the ethylene glycol dinitrate, hexamethylene triperoxide diamine, and cyclotrimethylene trinitramine allegedly carried by Mr. Ressam.
Subsequently, the Ninth Circuit has implicitly approved the reasoning of Illingworth and Petrykievicz, although declining to apply the exception to the facts before it. United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999). In Fiorillo, the defendant was receiving explosives without a license. The § 845(a)(1) exception did not apply because that exception "by its own terms only applies to the transportation of explosives, not the receipt of explosives." Id. On this basis, the Ninth Circuit distinguished Illingworth and Petrykievicz, which did relate to transportation, id. at 1153 n. 29; this same distinction applies to Mr. Ressam. Whereas the defendant in Fiorillo "interpret[ed] the exception too broadly," id. at 1153, Mr. Ressam comes squarely within its terms, as construed by the Ninth Circuit.
The Secretary of Transportation has been specifically empowered to designate materials as hazardous and to prescribe rules and regulations for the safe transportation of hazardous materials in intrastate, interstate, and foreign commerce. 49 U.S.C. § 5103. In accordance with this power, the Secretary of Transportation has designated a number of "hazardous materials," including explosives, which are regulated or forbidden from transportation on vessels. 49 C.F.R. § 172.101; 49 C.F.R. § 176.3 (b). The Code of Federal Regulations includes a table designating these regulated materials. 49 C.F.R. § 172.101. Hexamethylene triperoxide diamine, cyclotrimethylene trinitramine, and ethylene glycol dinitrate are among the list of hazardous materials regulated by the Department of Transportation. Id.
The regulations provide that hexamethylene triperoxide diamine and ethylene glycol dinitrate are absolutely forbidden from transportation on vessels. 49 C.F.R. § 176.3 (b). The regulations classify cyclotrimethylene trinitramine as a Division 1.1 explosive with a mass explosion hazard. § 172.101; see generally Illingworth, 489 F.2d at 265 (noting that § 845's exception applies to aspects of the transportation of explosives that "are regulated by the Department," and not just to the explosives that are prohibited.) As the Court inIllingworth explained, Congress enacted § 845's exception to permit regulation of the transportation of explosives by the appropriate authorities; namely, the Department of Transportation. As inIllingworth, the Department has done what Congress envisioned by regulating the transportation of the explosives carried by Mr. Ressam.
On the facts of this case, the government can and did charge criminal violations for the illegal carrying, using and possessing of explosives. Count 2 of the Second Superseding Indictment charges Mr. Ressam with placing an explosive in close proximity to a terminal. Count 6 of the Indictment charges Mr. Ressam with smuggling explosives into the United States. Count 8 of the Indictment charges Mr. Ressam with possession of an unregistered destructive device. Moreover, Congress has provided criminal penalties for bringing explosives or dangerous weapons aboard vessels, but the government has chosen not to file under that specific statute. See Title 18 U.S.C. § 2277 (making it a crime for a person to bring, carry, or possess an explosive article or compound on board any vessel registered under the laws of the United States). The offense alleged in Count 7 of the indictment is one specifically excepted from application in this case by § 845(a)(1).
The § 845 exception also did not prohibit government from prosecuting under 18 U.S.C. § 844 (d), which makes it a crime to transport explosives under circumstances similar to those alleged in Count 1, but without the requirement that the conduct transcend national boundaries.
Though alternative statutes existed for the prosecution in this case, Count 7 must be dismissed because Mr. Ressam's conduct falls within the § 845 exception to the offense charged. The transportation of these materials is an aspect of transportation regulated by the Department of Transportation. Accordingly, Mr. Ressam may not be convicted of violating § 842(a)(3)(A). The Court is therefore requested to enter a judgment of acquittal as to Count 7 of the Second Superseding Indictment.
DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 9 PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 29(a)
NOW COMES the defendant, Ahmed Ressam, by his attorneys, Federal Public Defender Thomas W. Hillier, II, Assistant Federal Public Defender Michael Filipovic, and Assistant Federal Public Defender Jo Ann Oliver, and hereby moves for a judgment of acquittal as to Count 9 of the Second Superseding Indictment, pursuant to Federal Rule of Criminal Procedure 29 (a).
In support of this motion, the Court is asked to consider the records and files herein. the testimony and evidence presented during the government's case-in-chief as well as the portion of Defendant's Trial Memorandum, Dkt. #206, pp. 21-33, supporting his proposed jury instructions on Count 9. Inasmuch as the government has introduced no evidence that would support a finding that the carrying of explosives facilitated the false statement charge in Count 5, judgment of acquittal should be granted as to Count 9.
CERTIFICATE OF SERVICE
I hereby certify that on April 3, 2001, I caused to be hand delivered a copy of DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 9 PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 29(a), and proposed ORDER, to:
Francis J. Diskin Chief Assistant U.S. Attorney
Andrew Hamilton Assistant U.S. Attorney
Steven Gonzalez Assistant U.S. Attorney
DATED this 3rd day of April, 2001.
Michael Filipovic