govinfo:USCOURTS-azd-2_12-cr-01263-1

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
United States of America, 
 
Plaintiff, 
 
v. 
 
Ahmed Alahmedalabdaloklah, 
 
Defendan
t. 
No. CR-12-01263-001-PHX-NVW
 
ORDER 
 
 
 
Before the Court is Defendant’s Motion to Dismiss Count 6 for Multiplicity and 
Violation of Double Jeopardy (Doc. 186) a nd the Response. Defendant did not file a 
reply brief. Defendant argues that the Second Superseding Indictment violates the Fifth 
Amendment’s Double Jeopardy clause by char ging him simultaneously with Count 5, 
Conspiracy to Commit Extraterritorial Mu rder of a United States National under 18 
U.S.C. § 2332(b)(2), and Count 6, Providing Material Support to Terrorists under 18 
U.S.C. § 2339A. More specifically, Count 6 charges him with providing material support 
in preparation for or carrying out Conspiracy to Commit Extraterr itorial Murder of a 
United States National under 18 U.S.C. § 2332(b)(2). 
 The Fifth Amendment states, “No person sh all be subject for the same offense to 
be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Double Jeopardy 
clause “protects against being punished twice for a single criminal offense.” United 
States v. Brooks, 610 F.3d 1186, 1194 (9th Cir. 2010) (internal quotation marks omitted). 

 
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Where one act violates two statutes, a defend ant may not be charge d under both unless 
“each provision requires proof of a fact which the other does not.” Id. (citing United 
States v. Solomon , 753 F.2d 1522, 1527 (9th Cir. 1985)) (internal quotation marks 
omitted). “The elements of the offenses are de terminative, even if there is a substantial 
overlap in their proof.” Id. 
 Section 2332(b)(2) requires pr oof of conspiracy to murder a U.S. National abroad. 
The elements of conspiracy are threefold: “(1) an agreement to engage in criminal 
activity, (2) one or more ov ert acts taken to implement the agreement, and (3) the 
requisite intent to commit the substantive crime.” United States v. Iribe , 564 F.3d 1155, 
1161 (9th Cir. 2009). The agreement “can be explicit or tacit.” United States v. Kaplan, 
836 F.3d 1199, 1212 (9th Cir. 2016), cert denied , 137 S. Ct. 1392 (2017) (internal 
quotation marks omitted). But whatever form it takes, the agreement must be “between 
two or more people.” United States v. Escobar de Bright, 742 F.2d 1196, 1199 (9th Cir. 
1984). 
In contrast, section 2339A provides, “W hoever provides material support or 
resources or conceals or disguises the nature, location, source, or ow nership of material 
support or resources, knowing or intending that they be us ed in preparation for, or in 
carrying out, a violation of” any of the statute’s forty or so enumerated object offenses 
“or attempts or conspires to do such an act ” is guilty of the offens e. 18 U.S.C. § 2339A 
(emphasis added). The requirement of “material support” in section 2339A is an element 
not verbally required for conviction conspiracy under se ction 2332(b)(2). But the 
conspiracy under section 2332 (b)(2) does require an overt act “taken to implement the 
agreement.” Any act of “material support” sufficient for guilt under section 2339A is 
also a sufficient “overt act” for conspiracy under section 2332(b)(2). The former are a 
subset of the latter. 
However, many overt acts sufficient for guilt of conspiracy would not be sufficient 
for guilt of material support to terrorists. In this case the United Stat es alleges five overt 
acts of Defendant himself in furtherance of th e conspiracy charges (Doc. 231 at 3), all of 

 
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which appear to suffice as acts of material support to terro rists. So on these allegations 
Defendant could not be guilty of material support to terrorists without also being guilty of 
conspiracy and vice versa (assuming an actual conspiracy is necessary for the material 
support charge, discussed next). In the abst ract, one could be guilty of conspiracy or 
material support to terrorists without being guilty of the othe r, but not on the allegations 
of this case. 
The United States argues that it is also possible to be guilty of one but not the 
other offense because an actual conspiracy (agreement of two or more people for the 
criminal purpose) is not necessary for s ection 2339A guilt for ma terial support to 
terrorists, but it clearly is necessary for sec tion 2332(b)(2) guilt for conspiracy. Section 
2339A only requires that the defendant provide suppor t or resources “knowing or 
intending” that they “be used in preparati on for, or in carrying out” one of the statute’s 
object offenses, in this case a conspiracy under section 2332(b)(2) to murder a U.S. 
national outside the United States. It is not necessary under section 2339A that the object 
conspiracy be committed. United States v. Hassoun, 476 F.3d 1181, 1188 (11th Cir. 
2007); accord United States v. Abu Khatallah , 151 F. Supp. 3d 116, 143 (D.D .C. 2015) 
(“[P]roving a violation of any of [section 2339A’s] enum erated offenses requires 
establishing a fact—the completion of the e numerated offense—that proving a violation 
of [section] 2339A does not.”). Therefore, th e Unites States argues that a defendant who 
provides such support under the mistaken belief that a conspiracy exists that he intends to 
support is guilty of material support unde r section 2339A even though there was no 
object conspiracy under section 2332(b)(2). But Defendant could not be found guilty of 
conspiracy itself absent an actual agre ement “between two or more people.” Escobar de 
Bright, 742 F.2d at 1199. 
This is as far as the Defendant’s two paragraphs of substantive analysis go. Going 
only this far, the motion to dism iss will be denied at this tim e, as an agre ement for the 
criminal purpose is necessary for section 2332(b)(2) guilt but no t, taking the text at face 
value, for section 2339A guilt. 

 
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The Court notes but does not resolve a po ssible problem that the parties have not 
briefed, or not briefed sufficiently to pose a question to decide. The enumerated object 
offenses of section 2339 A, with one exception, are all crimes of action or conduct. It 
makes sense to speak of providing types of a ssistance “knowing or intending” that they 
“be used in preparation for, or in carrying out” the actions of those object offenses or of 
attempt or conspiracy to provide such assistance. 
The one object offense that is not an offense of action or conduct is section 
2332(b)(2), which is a thought crime of shared understandi ng. The general text and 
structure of section 2339A poorly fit this cat egory of one. The object offense itself—
conspiracy—is not open to prefatory crimes. This Court finds no authority for crimes of 
attempting to conspire, conspiring to conspi re, intending to conspire, or aiding and 
abetting a conspiracy to come into existence. The text would literally say “in preparation 
for, or in carrying out” the formation of a non-existent agreement. To be sure, a 
conspirator himself can be said to “carry ou t” the formation of a conspiracy, but only by 
making himself guilty of conspiring. It would mean “atte mpts or conspires” to provide 
material support to the formation of a future agreement. That would be conspiring to 
conspire. 
Any formulation of such a crime threatens to be unintelligible. For the most part 
our juries take their responsibility with ut most seriousness. They labor through our 
instructions and seek clarification. They f eel the gravity of the d ecision they must make 
and carry the moral responsibility of it. It would be a gross imposition on a jury to 
charge them with the fate of an accused based on jibberish. Standards of statutory 
construction can avoid that and due process of law can prevent it. Perhaps such matters, 
if meritorious, may be brought up at trial and after trial. But whether viewed as 
multiplicity or failure to state a crime, they are not presented on this motion. 
 
/ / / 
 
/ / / 

 
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 IT IS THEREFORE ORDERE D that Defendant’s Motion to Dismiss Count 6 for 
Multiplicity and Violation of Double Jeopardy (Doc. 186.) is denied. 
Dated: June 26, 2017. 
 
 
 

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