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Monday, August 21, 2006

One charge dismissed in Padilla

Greetings to all!  I'm grateful to Dan for the invitation to spend some time here on PrawfsBlawg, and happy to be in such outstanding company.   I'm also very happy to have a place to share my thoughts on the big news out of Miami today, involving the criminal prosecution of former enemy combatant Jose Padilla.

In an opinion posted here, the district judge in United States v. Hassoun (S.D. Fla.) has invoked the rule against multiplicitous counts in an indictment (rooted in the 5th Am. double jeopardy clause) as grounds to dismiss the charge that Hassoun, Padilla, and the other defendants violated 18 U.S.C. 956(a).  Section 956(a), in brief, makes it a crime to conspire in the U.S. to carry out a murder, kidnapping, or maiming in another country.  In this case, the nature of the charge is that Hassoun and other defendants constituted a recruiting cell for what might best be described as the global jihad movement, and that Padilla was one of their recruits. 

So what gives rise to the multiplicity issue?  The defendants also are charged with violating 18 U.S.C 2339A, which makes it a crime to provide material support or resources with knowledge or intent that the support will facilitate commission of any of some 46 predicate crimes, including section 956(a) conspiracies.  In addition, they also are charged with conspiring to violate section 2339A.

In brief, the court's opinion dismisses the 956(a) charge on the ground that it is not actually distinct from the 2339A charges.    The court concludes that the purpose and object of each conspiracy was in fact the same ("to advance violent jihad, including supporting, and participating in, armed confrontations in specific locations outside the United States . . . ."), as were the alleged means-and-methods and overt acts. 

In the wake of this ruling, the 2339A charges remain (another aspect of the opinion has the effect of cutting down the scope of this charge, but does not throw it out altogether).  These are weighty charges (punishable by up to 15 years), though not nearly so much as the 956 count (punishable by up to life).   

There's much to discuss here.  Bearing in mind the greater significance of the 956(a) charge, it is not clear to me why that should be the one to give way (as opposed to the material support counts, or more specifically, the 2339A conspiracy count), particularly as to Padilla himself.  From a big picture perspective, however, what really interests me is that the ruling draws attention to the incredibly significant, but rarely noticed use of 956 and 2339A in post-9/11 prosecutions.  As it happens, I've just finished drafting an article on this exact topic ("Beyond Conspiracy?  Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism," going up on SSRN soon), and the data I've collected shows that these two charges are central to DOJ's capacity to prosecute in terrorism-related cases.  A close review of the indictments in these cases indicates, moreover, that 2339A and 956(a) can be and have been interpreted to permit prosecution at very early stages in the planning process.  This particular case is not necessarily an illustration of that phenomenon (although I do have an extensive discussion of Hassoun; if you happen to be an articles editor looking over my draft as we speak, rest assured I will be updating it to account for today's ruling!), but there are others that very much do so. 

In light of the string of preventive prosecutions that we've seen this summer in the U.S., U.K., Canada, and elsewhere, this is an issue that is going to be front and center for the near future.  In my next post, I'll begin to elaborate by touching on the competing policy goals that complicate the early prosecution approach.

Posted by Bobby Chesney on August 21, 2006 at 04:32 PM | Permalink


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It's a difficult question, to be sure. As I understand it, the relevant analytical framework for a "multiplicity" argument (i.e., an argument that a single offense has been charged in multiple counts) goes something like this:

Under Albernaz v. United States, 450 U.S. 333 (1981), similar-looking offenses are consistent with the 5th Amendment where Congress intended for there to be separate punishments. And under Blockburger v. United States, 284 U.S. 299 (1932), courts are to presume that Congress so intended when the two statutes in question each requires proof of a fact that the other does not. On that measure, it would seem at least at first blush that a 956(a) conspiracy and a 2339A conspiracy are sufficiently distinct, though certainly overlapping, offenses; only the former requires an intent to kidnap, kill, or maim, and only the latter requires an intent to provide "material support or resources." That said, I admit that these distinctions begin to blur a bit when the nature of the 2339A offense is to knowingly or intentionally facilitate a 956(a) violation. I'm not convinced that makes the charges multiplicitous, but it does give pause. In any event, even if the court is correct regarding multiplicity, it is not clear to me why the weightier charge should be the one dismissed.

Posted by: Bobby Chesney | Aug 22, 2006 1:42:39 PM

Got it -- I read it way too fast.

So, at the risk of asking a direct question, do you see the problem here is the absence of a choice for the government, or with the substantive holding writ large?

Posted by: Steve Vladeck | Aug 21, 2006 5:45:21 PM

Great question. The opinion actually deals with two distinct multiplicity arguments. The first one challenges Count 2, which is the conspiracy-to-violate-the-material-support-law count. In brief, that count rested in part on the general federal conspiracy offense (18 U.S.C. 371) and in part on the conspiracy language contained in 2339A itself. Why? Because 2339A did not provide directly for conspiracy liability until the USA PATRIOT Act in fall 2001. To cover the concept of a single ongoing conspiracy covering all the dates in the indictment, prosecutors therefore started the count under 371 but finished it, as it were, under 2339A. The court found this to be improper, and ordered the government to choose one or the other. But that choice won't impact the separate analysis that led the court to conclude that the 956(a) conspiracy was duplicative of the material support charges.

Posted by: Bobby Chesney | Aug 21, 2006 5:15:32 PM

Bobby -- Welcome, and thanks for the interesting post... One question: I read Judge Cooke as giving the government the option of which charge to proceed on -- 371 vs. 2339A. Am I wrong that she's therefore leaving the choice of "which charge falls" to the government here, rather than asserting the answer by judicial fiat?

Posted by: Steve Vladeck | Aug 21, 2006 5:06:35 PM

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