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United States v. Alahmedalabdaloklah

United States District Court, D. Arizona

November 6, 2018

United States of America, Plaintiff,
v.
Ahmed Alahmedalabdaloklah, Defendant.

          ORDER

          Honorable Roslyn O. Silver Senior United States District Judge.

         Defendant has filed four post-trial motions. The first motion seeks dismissal of the indictment or a new trial based on a variety of grounds, such as the jury instructions allegedly not including an essential element and Judge Wake allegedly disclosing Defendant's theory of defense. The second motion argues there is “newly discovered evidence” that merits a new trial. (Doc. 958). The third motion renews a previous motion requesting the Court “suppress all e-mail content and derivative evidence.” (Doc. 985). And the fourth motion seeks a downward variance.

         BACKGROUND

         The Second Superseding Indictment contained six counts concerning Defendant conspiring with others to use a weapon of mass destruction. On March 16, 2018, Defendant was convicted on the following four counts:

1. Conspiring to Use a Weapon of Mass. Destruction, 18 U.S.C. § 2332a;
2. Conspiring to Maliciously Damage or Destroy United States Government Property by Means of an Explosive, 18 U.S.C. § 844(f)(1), (2) and (n);
3. Aiding and Abetting Other Persons to Possess a Destructive Device in Furtherance of a Crime of Violence, 18 U.S.C. § 924(c); and
4. Conspiring to Possess a Destructive Device in Furtherance of a Crime of Violence, 18 U.S.C. § 924(o).

         Defendant was found not guilty of:

1. Conspiring to Commit Extraterritorial Murder of a National of the United States, 18 U.S.C. § 2332(b)(2); and
2. Providing Material Support to Terrorists, 18 U.S.C. 2339A.

(Doc. 923).

         In the weeks and months following the verdict, Defendant filed a variety of motions. First, on April 13, 2018, Defendant filed a “Motion for Judgment of Acquittal, to Dismiss for Lack of Jurisdiction, or, alternatively, for a New Trial.” (Doc. 975). Then, on April 19, 2018, Defendant filed a “Motion for New Trial Based on Newly Discovered Evidence.” (Doc. 958). Before the Court could rule on those motions, Defendant filed two more motions: a “Renewed Motion to Suppress E-Mail Content and Derivative Evidence” and a “Motion for a Downward Variance Pursuant to the Factors Listed in 18 U.S.C. § 3553(a) and in the Interests of Justice.” (Doc. 984, 985). The government opposed all four of these motions but Defendant did not file a reply in support of most of them. Defendant's sentencing is set for November 7, 2018.

         ANALYSIS

         I. Motion for Judgment of Acquittal, to Dismiss for Lack of Jurisdiction, or New Trial

         Defendant's first motion presents a wide variety of arguments in support of a request for acquittal, a dismissal based on lack of jurisdiction, or a new trial.

         A. Different Theory of the Case

          Defendant argues he “was convicted on a theory the government never charged and did not prove.” (Doc. 975 at 5). Defendant points out the indictment accused him of “manufacturing, designing, and supplying certain items used in specific IEDs that were actually employed against U.S. troops and vehicles, including in two specific events in 2007.” (Doc. 975 at 6). Despite the specific language in the indictment regarding actual use, the government failed to produce at trial any evidence that an “item with which [Defendant] allegedly came in contact was ever actually employed against any U.S. person or property.” (Doc. 975 at 6). Defendant believes the difference between what was alleged in the indictment and what was proven at trial constituted a constructive amendment of the indictment or a fatal variance. And even if not cognizable under one of those doctrines, the government's actions allegedly deprived Defendant of his “Fifth and Sixth Amendment rights to notice and the effective assistance of counsel.” (Doc. 975 at 11).

         i. Constructive Amendment

          “A constructive amendment occurs when the defendant is charged with one crime but, in effect, is tried for another crime.” United States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004). The “seminal case” addressing constructive amendment involved a defendant who “was indicted for extortion relating to interference with interstate shipments of sand.” United States v. Ward, 747 F.3d 1184, 1190 (9th Cir. 2014) (citing Stirone v. United States, 361 U.S. 212 (1960)). At trial, the government introduced evidence the defendant had interfered with both steel-related and sand-related shipments. The jury was then instructed that it could convict based “on either the sand- or steel-related conduct.” Id. The jury convicted but the Supreme Court reversed, concluding that allowing evidence of the uncharged steel-related shipments meant “the district court had constructively amended the indictment by expanding the conduct for which the defendant could be found guilty beyond its bounds.” Id.

         Building on the Supreme Court's guidance, the Ninth Circuit has formulated the constructive amendment test as requiring a fact-intensive inquiry into the indictment, “the jury instructions as a reflection of the indictment, ” and “the nature of the proof offered at trial.” Id. at 1191. “[W]hen conduct necessary to satisfy an element of the offense is charged in the indictment and the government's proof at trial includes uncharged conduct that would satisfy the same element, ” a court must assess other facts, such as the jury instructions, to ensure the defendant was convicted “solely on the conduct actually charged in the indictment.” Id. The constructive amendment doctrine, however, does not apply merely because the indictment contains specific allegations that are not proven at trial.

         The constructive amendment doctrine does not prohibit an indictment from containing “superfluously specific language describing alleged conduct irrelevant to the defendant's culpability under the applicable statute.” Ward, 747 F.3d at 1191. This means the government is not required to “prove all facts charged in an indictment.” United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986). Instead, the government must prove only “the essential elements of the crime.” Id. And “[i]nsofar as the language of an indictment goes beyond alleging elements of the crime, it is mere surplusage that need not be proved.” Id. In other words, the constructive amendment doctrine “only applies to the broadening, rather than the narrowing, of indictments.” United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012).

         Defendant's constructive amendment argument is that the indictment contained allegations that Defendant was involved in the manufacture and design of parts that were “actually employed against U.S. troops and vehicles” but the government did not prove any actual use at trial. The problem with this argument is that the language in the indictment regarding Defendant's connection to parts actually used in bombings was unnecessary under the particular crimes charged. The government did not have to prove such a connection to secure convictions and, to the extent the indictment contained such specifics, it was mere surplusage. No constructive amendment occurred.

         ii. Variance

         Defendant's next argument is that the failure to prove his connection with parts actually used constituted a variance. “A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.” United States v. Ward, 747 F.3d 1184, 1189 (9th Cir. 2014). To be entitled to relief under this doctrine, a defendant must prove the divergence between the facts alleged in the indictment and those proven at trial resulted in prejudice. Id. at 1190.

         Here, Defendant claims the differences between the indictment and proof at trial meant he did not have “the notice necessary to enable him to prepare his defense.” Defendant does not explain how the government's decision not to prove a direct connection between him and parts actually used prevented him from preparing his defense. Proving a connection between Defendant and actual use was not an element of any of the offenses and Defendant's preparation for trial was not changed because of the connection alleged in the indictment. In the context of this case, the allegations in the indictment simply could not “have misled the defendant at the trial.” Berger v. United States, 295 U.S. 78, 83 (1935). Therefore, even assuming there was a variance between indictment and proof, Defendant was not prejudiced.

         iii. Fifth and Sixth ...


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