Terrorism-Related Indictment—Charges Dismissed

On August 1 of this year, Khalid Awan was indicted in the Eastern District of New York on a superceding indictment alleging three charges, two relating to terrorism, and one for money laundering. Recently, he moved to dismiss the charges against him, and two of the three, relating to terrorism, were indeed dismissed.^[1]

Mr. Awan has had a long journey through the courts. In October of 2001, Mr. Awan was arrested on a charge of credit card fraud under 18 U.S.C. § 1029, and detained on a material witness warrant.^[2] On November 6, 2001, he testified before a grand jury as a witness; he was not thereafter released, and on November 14, 2001, he was arraigned and ordered detained pending trial.^[3] Two weeks later, he was indicted on the credit card fraud charges.^[4] On May 7, 2002, a superceding indictment was filed, and on March 17, 2003, he pleaded guilty to one count of credit card fraud; he was sentenced on October 28, 2004 to sixty months imprisonment.^[5] Because of his constant incarceration since October of 2001, Mr. Awan was “scheduled to be released from his 2004 sentence in March, 2006. However, on March 8, 2006 he was again indicted” and the August 1 superceding indictment, which formed the basis of his Motion, was filed.^[6] After Mr. Awan filed his Motion to dismiss the charges against him, another superceding indictment was filed on October 23, 2006; the charges alleged in that indictment are not addressed in the instant case.^[7]

Mr. Awan based his Motion on a variety of arguments, including Failure to State an Offense, which led to the dismissal without prejudice of the two terrorism-related charges facing him. He argued that “these counts fail[ed] to provide the sufficient factual detail as to what ‘material support or resources’ [he] provided and at what times; since the statute enumerates several different types of conduct which are each defined as material support, [Mr. Awan] contend[ed] that the level of detail provided in the indictment [did] not give adequate notice of the charges.”^[8] District Judge Charles P. Sifton noted that generally “’an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’”^[9] Usually, language that tracks the statute is sufficient; “[h]owever, recital of the statutory language is not enough under all circumstances. To comply with the protections of the Fifth and Sixth Amendments, an indictment must contain sufficiently specific facts to provide the defendant ‘with reasonable certainty, of the nature of the accusation against him’ so that he knows ‘what he must be prepared to meet.’”^[10] Furthermore, “the indictment must be framed to ‘ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury.’”^[11] Such concerns take on new importance when the statute in question “uses generic terms to categorize a variety of different activities each proscribed in the statute; in that case, ‘it is not sufficient that the indictment shall charge the offence [sic] in the same generic terms as in the definition; but it . . . must descend to particulars.’”^[12] Because Mr. Awan’s indictment used the “generic expression ‘material support,’ as defined in 18 U.S.C. § 2339A(b), without specifying which of a variety of activities, any one of which would be criminal, that the defendant must defendant must defend against or which the grand jury considered,”^[13] Judge Sifton ruled that “thee indictments on Counts One and Two must be dismissed, without prejudice to the government’s re-presentment of the matter to the grand jury.”^[14]

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[1] United States v. Awan, 2006 U.S. Dist. LEXIS 78138 *1-*2 (E.D.N.Y. 2006) (No. CR-06-0154).
[2] Id. at *3.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at *4.
[7] Id. at *4 n.3.
[8] Id. at *7.
[9] Id. at *8 (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)).
[10] Id. at *9 (quoting Russell v. United States, 369 U.S., 749, 764-65 (1962)).
[11] Id. (quoting United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000)).
[12] Id. at *10 (quoting Pirro, supra note 11, at 93).
[13] Id. at *10-*11.
[14] Id. at *13.