United States v. Abdalla
United States v. Abdalla
Opinion of the Court
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,
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,
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
Rule 12(b)(2) provides that "[a] motion that the court lacks jurisdiction may be made at any time while the case is pending." Fed. R. Crim. P. 12(b)(2). On a pretrial motion to dismiss an indictment pursuant to Rule 12(b), the Court takes the allegations in the indictment as true. See United States v. Goldberg,
Rule 7(c) of the Federal Rules of Criminal Procedure provides that the indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c). Under the applicable standard, the Court does not consider the sufficiency of the evidence at this early stage in the proceedings, but rather focuses on the legal sufficiency of the indictment itself without looking any further. See *586United States v. Alfonso,
The Akasha Brothers move to dismiss the Superseding Indictment for lack of jurisdiction, arguing that jurisdiction does not exist because the Government "manufactured" jurisdiction when CS-1 told the Akasha Brothers that CS-1 wanted to import narcotics into the United States. (Baktash Mem. at 4-7; Ibrahim Motion at 3-5.) As a result, the Akasha Brothers contend, each offense lacks an adequate U.S. nexus. (See id.) Yet, as the Government notes, "the 'manufactured jurisdiction' concept is properly understood not as an independent defense, but as a subset of three possible defense theories: (i) the defendant was entrapped into committing a federal crime, since he was not predisposed to commit the crime in the way necessary for the crime to qualify as a federal offense ...; (ii) the defendant's due process rights were violated because the government's actions in inducing the defendant to commit the federal crime were outrageous ...; or (iii) an element of the federal statute has not been proved, so federal courts have no jurisdiction over the crime." United States v. Wallace,
To satisfy the first theory, the Akasha Brothers must demonstrate entrapment as a matter of law, i.e., they must "prove[ ] that: (1) the government originated the criminal design, (2) the government suggested the design to the defendant and induced him to adopt it, and (3) the defendant had no predisposition to engage in the criminal design prior to the government's inducement." United States v. Al Kassar,
Under the second theory, the Akasha Brothers "must show that the government's conduct is so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction." Al Kassar,
*587Under the third theory, "even if the government initiates an essential element of a crime, jurisdiction is not manufactured if the defendant then takes voluntary actions that implicate the [government-initiated] element." Al Kassar,
Neither has the Court been divested of jurisdiction due to a violation of the Kenya-U.S. Extradition Treaty. In its July Order, the Court determined that the Akasha Brothers "lack[ed] standing to raise a violation of the Extradition Treaty, and ... any such challenge would lack merit if they did have standing to raise it." Akasha Abdalla,
B. Motions to Dismiss for Improper Venue
The Akasha Brothers move to dismiss the Superseding Indictment pursuant to Rule 12(b)(3)(A)(i), which provides that improper venue "must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b) (3) (A) (i). Under both Article III and the Sixth Amendment to the United States Constitution, "[t]he Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed." U.S. Const. art. III, § 2, cl. 3 ; see also U.S. Const. Amend. VI ; United States v. Ramirez,
Prior to trial, the Government "need only allege that criminal conduct occurred within the venue, 'even if phrased broadly and without a specific address or other information.' " United States v. Ohle,
The Government has satisfied this burden. "The trial of all offenses begun or committed ... elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought."
Count Seven of the Superseding Indictment alleges a violation of
C. Motions for Pretrial Relief
1. Pretrial Identifications
The Akasha Brothers ask the Court to suppress any pretrial identifications, as well as any in-court testimony that would identify the Defendants. In support of that motion, the Akasha Brothers assert only that "there is no sufficiently reliable 'independent source' " for in-court identification testimony. (Baktash Mem. at 20-21.) The Government represents that it will not offer any "photo arrays or similar pre-trial identification techniques" at trial. (Government Opp'n at 25.) The Government also represents that the anticipated in-court identifications are sufficiently reliable to be admissible. (See ibr.US_Case_Law.Schema.Case_Body:v1">id
2. Miranda Statements
The Akasha Brothers move to suppress any statements they made to the Government while they were under custodial interrogation, asserting that any such statements were obtained in violation of Defendants' Miranda rights. (See Baktash Mem. at 21-22.) The Government represents that it will not offer "any statements made by the Akasha Brothers to DEA personnel after the defendants were taken into custody by the DEA in Kenya." (Government Opp'n at 27.) As such, the Court denies the Akasha Brothers' motion as moot.
3. Evidence of Prior Crimes and Prior Criminal or Immoral Acts
The Akasha Brothers ask the Court to exclude any potential evidence of their prior crimes and prior criminal or immoral acts pursuant to Rules 403 and 609 of the Federal Rules of Evidence. (See Baktash Mem. at 23.) The Government represents that it will provide notice pursuant to Rule 404(b) of the Federal Rules of Evidence by September 21, 2018. (See Government Opp'n at 27.) Until it is known whether and how the Government intends to use the evidence of the Akasha Brothers' prior crimes and prior criminal or immoral acts at trial, the Court denies the Akasha Brothers' motion to preclude the admittance of such evidence as premature.
4. Expedited Government Disclosure or Production
Finally, the Akasha Brothers request the immediate disclosure of various Brady *589and Giglio materials. (See Baktash Mem. at 24-26.) Defendants argue that expedited production of certain discovery materials is warranted to permit Defendants a reasonable opportunity to prepare for trial. (See id. at 24.) The Government represents that it has complied with its Brady obligations, and that it will continue to do so. (See Government Opp'n at 19.) The Government also represents that it will produce Giglio materials no later than October 15, 2018. (See id. at 19-20.) Based on these representations, the Court is satisfied that the Government is meeting its Brady and Giglio obligations and denies the Akasha Brothers' motions. See United States v. Canter,
III. ORDER
For the reasons stated above, it is hereby
ORDERED that the Motions (Dkt. Nos. 75 & 77) of defendants Baktash Akasha Abdalla and Ibrahim Akasha Abdalla to dismiss the indictment and for various forms of pretrial relief are DENIED.
SO ORDERED.
Reference
- Full Case Name
- United States v. Baktash Akasha ABDALLA
- Cited By
- 1 case
- Status
- Published