United States v. Arnaout, 231 F. Supp. 2d 797 (N.D. Ill. 2002)

*798 Patrick J. Fitzgerald, John C. Kocoras, Deborah L. Steiner, United States Attorney's Office, Chicago, IL, for Plaintiff.

Joseph J. Duffy, William Paul Ziegelmueller, Stetler & Duffy, Ltd., Chicago, IL, for Defendant.

LEVIN, United States Magistrate Judge.

The issue before the Court is whether the Defendant, Mr. Arnaout, should be detained pending trial or whether he should be placed on bond, with the type of conditions proposed by the Defense.

The Court takes judicial notice of the record in prior case number 02 CR 414, in which Mr. Arnaout was a defendant. The ruling of the Court at the probable cause hearing in case number 02 CR 414 is attached hereto for reference purposes.

As is pertinent here, and in abbreviated form, the indictment charges as follows: Mr. Arnaout became associated with Osama Bin Laden in the late 1980's. In about 1991, Arnaout worked with members of al Qaeda to purchase large quantities of weapons and to distribute them to various Mujahideen (fighter) camps, including al Qaeda camps.

The indictment continues: In 1993, Mr. Arnaout assumed formal management of Benevolence International Foundation ("BIF") and Mr. Arnaout remained in that position until, at least, his arrest this year. BIF was a charitable organization whose ostensible purpose was to use donated funds solely for humanitarian purposes, with a strong overseas focus. The focus of BIF's appeal for donated funds was principally to Muslim donors. However, Arnaout has always secretly used a portion of the money raised by BIF to support Mujahideen, including al Qaeda, engaged in armed confrontations and violence overseas, such as in Chechnya and Bosnia-Herzegovina (a fact concealed from many donors to BIF).

The Government's principal argument herein is that the Defendant is a risk of flight, which, under uniform case law, the Government must establish by a preponderance of the evidence.

The Court has taken into account the available information and arguments on both sides concerning the factors delineated at 18 U.S.C. § 3142(g).

The Court finds, however, that there are several overriding factors in this case. In considering the risks of flight herein, implicitly, the Court must assess (A) the Defendant's mental state (including his motivation to flee) and (B) whether the Defendant has the physical means to flee.

As to mental state: Mr. Arnaout is charged with racketeering conspiracy, providing material support to organizations engaged in violent activities, money laundering, mail fraud and wire fraud. Mr. *799 Arnaout faces a possible 90 year sentence if convicted of these charges. The Government also states that upon conviction it will seek sentencing enhancements that would result in Mr. Arnaout being sentenced to life in prison. In these circumstances, and given the post 9/11 climate in this country, regardless of Mr. Arnaout's actual guilt or innocence of all this, the natural human tendency has to be for Mr. Arnaout to apprehensively feel he's in a difficult and opprobrious situation, from which flows an incentive and risk for flight. In addition, the evidence offered by the Government was that even several months prior to Mr. Arnaout ever being formally charged in a criminal complaint, Mr. Arnaout discussed with another individual whether he should leave for Saudi Arabia (where Mr. Arnaout's Mother and siblings live) and not return to the United States. Further government evidence was that a month or two before being formally charged criminally, Mr. Arnaout advised the Benevolence International Foundation representative in Pakistan to leave and relocate to Afghanistan with all the money, to avoid the Pakistani intelligence authorities who were looking for that Pakistan representative.

As to physical means: The Defendant has an extensive international network of contacts, which is not available to the average person. Besides a sister organization in Canada and an office in New Jersey, Benevolence International Foundation ("BIF")^[1] had about twelve offices overseas; namely, in Pakistan, Bosnia, Yemen, Sudan, Azerbaijan, Tajikistan, Bangladesh, Turkey, Dagestan, Soviet Georgia, China and Ingueshita (moved from Chechnya). BIF also had charitable projects in a number of these countries plus Afghanistan. As stated, Defendant has family in Saudi Arabia and he was born and raised in Syria. And Defendant used to reside in Florida.

The Court thus perceives that Defendant has the requisite mental state and the available physical means to create a risk of flight.

It also bears noting that electronic monitoring can't stop a person from fleeing. It can be noted, too, that all the property previously proposed to be posted as bond security is either owned by BIF or members of the community. There thus would be no financial harm incurred by Defendant's family if he flees, which therefore creates significantly less incentive for the Defendant to stay than if Defendant or his family was to post substantial security.

In view of the foregoing, considering the totality of the factors and circumstances, the Court determines that the Government has met its burden that the Defendant is a risk of flight. And the Court finds that no condition or combination of conditions will reasonably assure the appearance of the Defendant as required. Therefore, the Defendant is ordered detained pending trial.^[2]

In light of the Court's ruling, the Court deems it unnecessary to consider whether the Government has established by clear and convincing evidence that the Defendant is a danger to the community.

In closing, the Court directs that Enaam M. Arnaout be afforded reasonable opportunity for private consultation with counsel. 18 U.S.C. § 1342(i) (3).

My ruling is as follows as to this matter:

In preface, it bears noting that this is not a trial and that the nature of the proceeding presently before the Court is such that the defendants do not mount a defense.

Rather, and essentially, the purpose of this preliminary hearing is to determine from the evidence presented by the United States Attorney's Office if there is probable cause to believe that the offense of perjury as charged in the criminal complaint here has been committed by the defendants.

Specifically, the complaint charge herein is that the defendants knowingly submitted false material declarations under oath in a federal district court proceeding here in Chicago and in violation of Title 18, United States Code, Section 1623.

As is pertinent here, the portion of the sworn declarations signed by defendant Arnaout on behalf of the defendant Benevolence International Foundation hereafter called BIF in issue states that Benevolence International Foundation, "has never provided aid or support to people or organizations known to be engaged in violence, terrorist activities or military operations of any nature."

At the hearing before the Court, the United States Attorney's Office presented evidence that in 1995, relative military operations and violence, Benevolence International Foundation representatives delivered an X-ray machine and $3225 to Chechnyan guerillas or freedom fighters for military operations in Azerbaijan.

The U.S. Attorney's Office also presented evidence that during or after February, 2000, a website dedicated to the cause of the Chechen freedom fighters in the military fight or jihad in Chechnya posted donation links on the website for Benevolence International Foundation (and only one other charity) as a trustworthy aid organization to donate money to the Chechnyan mujahideen (holy warriors) or freedom fighters for the military operations in Chechnya.

The U.S. Attorney's Office presented related evidence that during or around the same February, 2000, period, BIF wired $685,000 to its account in that vicinity or region.

When the described website and $685,000 in money transfers are compared as to time and considered with other circumstantial evidence presented by the government, for purposes of this probable cause hearing, a reasonable inference is that the subject $685,000 or some significant portion thereof went for military operations and violence in Chechnya.

Regarding the issue of materiality raised by Mr. Piers in the closing argument, the Court respectfully finds that the declaration at issue is "material." The civil district court suit filed by BIF is wholly premised on the premise that BIF is solely a charitable organization. The declaration by BIF therein that it has never provided aid or support to any people or organization known to be engaged in military operations of any nature or violence is, therefore, clearly and inherently a material declaration in that civil suit.

In summary, in view of the described evidence presented by the government regarding the X-ray machine, $3500 in cash for use by the Chechen mujahideen (or guerillas or freedom fighters) in their war activities in Chechnya, plus the evidence surrounding the $685,000 in money transfers discussed, the Court finds that probable cause exists that the defendants knowingly submitted false material declarations under oath that BIF has never provided *801 aid or support to people or organizations known to be engaged in, inter alia, "violence" or "military operations of any nature."

Accordingly, the Court finds from the evidence that there is probable cause to believe that the offense charged the complaint has been committed and that the defendants have committed such offense. The defendants, thus, are held to answer for further proceedings in the district court.

That is the finding of the Court on that issue.

[1] Somewhat recently, BIF has been rendered defunct, initiated by virtue of certain United States government civil action.

[2] Pretrial Services has recommended detention of the Defendant, based on a risk of flight and as a danger to the community.