On January 13, 2010, a grand jury indicted Defendant Elton Simpson for knowingly and willfully making a materially false statement to the Federal Bureau of Investigation ("FBI"). The indictment also charged that the statement involved international and domestic terrorism. The indictment specified that on or about January 7, 2010, the Defendant falsely stated to special agents of the FBI that he had not discussed traveling to Somalia, when in fact he had discussed with others traveling to Somalia for the purpose of engaging in violent jihad. The Government is charging Mr. Simpson with making a false statement in violation of 18 U.S.C. §1001. The Government is also charging that the false statement involves international or domestic terrorism as defined under section 2331, so that he is eligible for a sentence enhancement pursuant to 18 U.S.C. §1001.
The Defendant waived his right to a trial by jury and elected instead
to have a bench trial. Trial was held October 26 and 27, 2010 before
this Court. At the close of trial the
Court permitted the parties to provide any additional briefing on
the issue of whether the 2 false statement involves international
terrorism under 18 U.S.C. §1001. The Court issues the 3 following
Order. 4 I. Findings of Fact 5 According to the testimony presented at
trial, the Defendant Elton Simpson is an 6 American Muslim. In 2006,
the FBI in Phoenix began a criminal investigation of Mr. 7 Simpson,
because of his association with an individual whom the FBI believed
was 8 attempting to set up a terrorist cell in Arizona. The FBI was
investigating whether the 9 Defendant, and certain of his associates,
might travel to foreign countries to engage in violent jihad. The
investigation was part of the FBI's mission to deter and disrupt
terrorist acts involving American citizens as authorized by executive
In May 2005, the FBI engaged an informant, Mr. Daba Deng, who was from Kenya and who knew Mr. Simpson from the mosque he attended. In the fall of 2006, Mr. Deng was asked by the FBI to become friends with Mr. Simpson and get to know him better by presenting himself as an individual who was new to Islam and who sought to learn more from Mr. Simpson. Mr. Deng began to meet with Mr. Simpson three to four times per week and recorded their conversations. Mr. Deng was paid for his work as an informant.
During the trial, the Government played some of the taped conversations between the informant, Dabla Deng, and the Defendant. One of these recordings was from July 31, 2007, more than two years before his indictment. In that recording, Mr. Simpson told Mr. Deng that Allah loves an individual who is "out there fighting [non-Muslims]" and making difficult sacrifices such as living in caves, sleeping on rocks rather than sleeping in comfortable beds and with his wife, children and nice cars. Mr. Simpson said that the reward is high because "If you get shot, or you get killed, it's [heaven] straight away." Mr. Simpson then said "[Heaven] that's what we here for...so why not take that route?"
At this point Mr. Deng asked:
Deng: What route though? You mean here in America, we can get the reward too, or do you have to be outside?
Simpson: ...right now, I'm talking about going out, you know what I mean?...Because the brothers in like Palestine, and stuff they need help. 4 Mr. Simpson then mentioned Palestine, Iraq and Somalia and stated that if "a brother" in 5 Palestine has his house bombed, you should feel like that bomb landed on your house. "You 6 should feel for your Muslim brother no matter where he is." Mr. Simpson then stated that 7 "they trying to bring democracy over there man, they're trying to make them live by 8 man-made laws, not by Allah's laws. That's why they get fought. You try to make us 9 become slaves to man? No we slave to Allah, we going to fight you to the death." Mr. Simpson then mentioned Palestine, Afghanistan and Iraq and stated "Some people they don't believe that they should be over there fighting. That's the problem. That's like a disease in the heart, man. . . [I]t's a small group of brothers who can see and understand why...Some brothers don't have the same understanding."
In another recording from May 29, 2009, Mr. Simpson told Mr. Deng "it's time to go to Somalia, brother...we know plenty of brothers from Somalia." Mr. Simpson and Mr. Deng then discussed their possible contacts in Africa. Mr. Simpson then said "It's time. I'm tellin' you man. We gonna make it to the battlefield...it's time to roll." Mr. Simpson and Mr. Deng then discussed "jihad". In that conversation, Mr. Simpson explained why Muslims are fighting, the following way: "People fighting and killing your kids, and dropping bombs on people that have nothing to do with nothing. You got to fight back you can't be just sitting down...smiling at each other..." The two then discussed a video of a beheading.
Then on June 16, 2009, six months before he was indicted, Mr. Simpson mentioned to Mr. Deng "Getting up out of here". Mr. Simpson said he was tired of living under non-Muslims. Mr. Simpson also said that non-Muslims are fighting against Allah and that his money and taxes are going towards their weapons. Later in the same conversation, Mr. Simpson discusses having sent someone a link to a video about the permissibility of doing martyrdom operations. He says that someone in the video talks "about how they gonna use the car with the bombs on it." Mr. Simpson then discussed a lecture, by (presumably former President) Bush about the Caliphate -- which Mr. Simpson described as a system based on Shariah law for all Muslims -- and Shariah government. According to Mr. Simpson, President Bush said that the Caliphate was evil. Mr. Simpson said that Muslims had the Caliphate over 80 years ago, but that the non-Muslims destroyed that. He also explained "that's what the Muslims are trying to do right now. They're trying to bring that back." Mr. Simpson also said that President Bush said "you're either with us or you're with the terrorists...Bush is either saying you're with us or you're with the Muslims. That's what that means. The . . .true Muslims."
Then on October 23, 2009, about two months before he was indicted, Mr. Simpson told Mr. Deng:
Me and Yahya was talking about... me going to South Africa and then uh, I make my way up to, uh Somalia, and uh he said..."what if you go to Somalia and you waiting on a brother come pick you up and what if it was me?"
Mr. Simpson then said that Somalia is eight countries away from South Africa and that this was a lot of traveling, suggesting that even if he had the intention to go there, it was far. Then on November 7, 2009 Mr. ...