This memorandum is submitted in support of the...

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Criminal No. 15-49 (04) (MJD)

UNITED STATES OF AMERICA, )

)

Plaintiff, ) MEMORANDUM IN SUPPORT OF

v. ) DETENTION MOTION

)

ABDIRAHMAN YASIN DAUD, )

)

)

Defendant. )

This memorandum is submitted in support of the government’s motion for

detention of defendant Abdirahman Daud (“Defendant”). A hearing on this motion is

scheduled for Friday, May 22, 2015. The grand jury returned an eight-count superseding

indictment which alleges a conspiracy to provide material support to a designated foreign

terrorist organization in violation of 18 U.S.C. § 2339B(a)(1) (count 1), three substantive

charges of attempting to provide material support to a foreign terrorist organization in

violation of 18 U.S.C. § 2339B(a)(1) (counts 2, 3, and 4), two counts of false statement in

violation of 18 U.S.C. § 1001 (counts 5 and 6), and two counts of financial aid fraud in

violation of 18 U.S.C. § 1097 (counts 7 and 8). Defendant is charged in Counts 1 and 4

and faces a potential penalty of 30 years’ imprisonment.

Summary of the Argument

The government anticipates that the defendant may seek either outright release or

release on conditions. For the following reasons, elaborated upon below in this

Memorandum, release would be ill-advised:

CASE 0:15-cr-00049-MJD-FLN Document 93 Filed 05/21/15 of 11

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1. The defendant was a long-standing member of a conspiracy to provide

material support, in the specific form of personnel, to ISIL, a designated foreign terrorist

organization. The personnel in question were young Minnesotans. The defendant has

been a member for at least a year of a conspiracy which had as its goals, that the

defendant travel to Syria himself and also that the defendant, and other conspirators, help

other young Minnesota men travel to Syria to join, fight with, and in some cases die for,

ISIL.

2. Unlike the majority of crimes, in which flight is a means to avoid the

consequences of one’s criminal behavior, in this case flight – flight to Syria to join ISIL –

is itself the crime, as is violence. The crimes for which defendant has been indicted could

be summarized as flight to Syria, and once in Syria to commit acts of violence.

3. Members of the conspiracy have spoken not only of violence in Syria, but

of violence in Minnesota. Mohamed Farah, a co-defendant of Daud’s, and the defendant

who traveled to San Diego with Daud, has stated that he intends, if he cannot get to Syria,

to murder federal law enforcement officers.

4. In the hours immediately preceding his departure by car for San Diego,

defendant Daud was in electronic contact with an as-yet unidentified member of ISIL in

Syria, who gave defendant Daud detailed instructions on how to get to Syria.

5. Release to the defendant’s family would be ineffective in ensuring the

safety of the community or the defendant’s future appearance in court, because although

defendant Daud has made different statements about his family at different times, on at


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least one occasion he has stated that his family knows he is going and that they will “not

say a word.”

Background

This case arises out of a long-running investigation into young men who have left

Minnesota, or have attempted to leave Minnesota, to join the brutal terrorist organization,

Islamic State of Iraq and the Levant (“ISIL”). The superseding indictment alleges the

defendant conspired to provide, and attempted to provide, material support to ISIL, a

designated foreign terrorist organization.

Defendant was arrested by FBI agents on April 19, 2015, in San Diego, California.

He made his initial appearance on a complaint (see footnote 1, below) before a magistrate

judge in the Southern District of California on April 20, 2015, at which time federal

pretrial services presented a bond report recommending detention. In the interview

conducted by pretrial services, Defendant falsely represented to pretrial services that he

had no foreign ties. Defendant reserved argument on detention for his return to

Minnesota. On May 19, 2015, the defendant made his initial appearance in the District of

Minnesota. At that time, the government moved for detention.

Under 18 U.S.C. § 3142(e)(3) there is a rebuttable presumption that the defendant

should be detained. The rebuttable presumption arises where the court finds that there is

probable cause to believe that the defendant committed an offense listed in 18 U.S.C. §

2332b(g)(5)(B) which has a maximum term of imprisonment of 10 years or more. See 18

U.S.C. § 3142(e)(3)(B) and (C). 18 U.S.C. § 2339B(a)(1), alleged in counts 1 and 4 as to


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Defendant, are listed in § 2332b(g)(5)(B) and have a maximum term of imprisonment

greater than 10 years (15 years each).

Probable cause has already been established because the defendant has been

indicted for these offenses. United States v. Stone, 608 F. 3d 939, 945 (6th Cir. 2010);

United States v. Hazime, 762 F. 2d 34, 37(6th Cir. 1985). The rebuttable presumption in

favor of detention therefore arises. As noted in United States v. Abad, 350 F. 3d 793, 798

(8th Cir. 2003), the rebuttable presumption places a limited burden of production on the

defendant. However, even when the defendant meets his burden, the presumption does

not simply disappear:

The presumption remains as a factor because it is not simply an

evidentiary tool designed for the courts. Instead, the presumption

reflects Congress’s substantive judgment that particular classes of

offenders should ordinarily be detained before trial.

Stone, 608 F. 3d at 945. In other words, the presumption does not disappear once the

defendant has produced some rebuttal evidence but continues to be weighed with other

factors. United States v. LaFontaine, 210 F. 3d 125, 130-31 (2nd Cir. 2000).

The government’s motion for detention is based both upon the danger he presents

to the community and his risk of flight. Dangerousness to the community is established

under a clear and convincing standard, while risk of flight is established by a

preponderance of the evidence. 18 U.S.C. § 3142(f); United States v. Kisling, 334 F.

3d 734, 735 (8th Cir. 2003). Bail hearings are typically informal affairs, and not a

substitute for trial or discovery. Few detention hearings involve live testimony; most

proceed on proffers. United States v. Abuhamra, 389 F. 3d 309, 321, n. 7 (2nd Cir. 2004).


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The government, as the defendant, may proceed by proffer at a detention hearing.

See e.g., United States v. El-Hage, 213 F. 3d 74, 82 (2nd Cir. 2000) (while the defendant

may present his own witnesses and cross examine any witnesses that the government

calls, either party may proceed by proffer and the rules of evidence do not apply); United

States v. Smith, 79 F. 3d 128, 129-10 (D.C. Cir 1996) (“every circuit to have considered

the matter has. . . permitted the government to proceed by way of proffer” (citations

omitted)). See also United States v. Femia, 983 F. 2d 1046, *4 (1st. Cir. 1993)

(unpublished); United States v. Gaviria, 828 F. 2d 667, 669 (11th. Cir. 1987).

Evidence in Support of Government’s Motion

At the detention hearing, the government intends to proffer additional information

from the investigation to aid in the Court’s decision whether to grant the government’s

motion. First, the government will proffer the complaint affidavit filed in this case.1

This document outlines the essential facts leading to the defendant’s arrest on April 19,

2015, in San Diego, California. The affidavit demonstrates the extraordinary length to

which Defendant went to plan his and his co-conspirator’s trip to Syria, which included

multiple meetings and conversations with co-conspirators and the Confidential Human

Source (“CHS”), providing both a passport photograph and a down-payment to facilitate

the production of a fake passport for use in crossing the Mexican border and travel to

Syria, and using his own vehicle to drive himself, co-defendant Mohamed Farah, and the

1 Defendant and five of his co-conspirators were arrested on a complaint signed by Magistrate Judge

Becky Thorson. See 15-mj-312 (BRT). This affidavit is attached and is marked as Exhibit 1.


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CHS from Minneapolis to San Diego to obtain the fake passports and travel onward to

join a foreign terrorist organization.

The affidavit also contains evidence exposing Defendant’s long-running

involvement in the conspiracy, including evidence showing that he and his co-defendants

conspired to use fake passports to cross into Mexico before the CHS became involved in

this investigation. Paragraph 59 of this document evidences Defendant’s participation in

an earlier plot to leave the United States for Syria: “you know how last time we were up

to something, everyone could tell” and that this time “we have to be normal.” Paragraph

54 of the affidavit further supports Defendant’s ever-present role in the conspiracy. In

reference to the November 8, 2014 attempt, this paragraph describes co-defendant

Zacharia Abdurahman’s recorded statement that Defendant “made us hasty.” This

continued and absolute commitment to the conspiracy to travel overseas to join ISIL is

relevant to the assessment of both the risk of flight and the danger to the community

presented by Defendant.

Further, Paragraphs 67 and 70 of the complaint affidavit evidence Defendant’s

direct contact with ISIL personnel. Paragraph 67 describes a recorded conversation in

which Defendant recounts his recent discussion with current ISIL fighter Abdi Nur.

Paragraph 70 evidences Defendant’s direct contact with an unnamed ISIL facilitator who

provided specific instructions for travel to Turkey and Syria, as well as updated and

current information on the associated costs. As will be discussed in more detail below,


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this recorded conversation with the CHS was corroborated by other evidence obtained

following Defendant’s arrest.

Supplementing the evidence in the affidavit, the government proffers portions of

recorded statements made by Defendant and one of his co-conspirators, Mohamed Farah,

which further demonstrate the need for detention in this case.

- On March 30, 2015, Defendant told the CHS that Defendant’s travel to

Syria with co-defendant Adnan Farah was helped by Adnan Farah’s

mother’s belief that he (the defendant) is helping Adnan Farah get his

life together.

- On April 3, 2015, Defendant participated in a recorded conversation

with Mohamed Farah, the CHS and others. Regarding Defendant’s own

family, he stated “[m]y family won’t say a word. They know I’m

going.”

- In a separate conversation on April 3, 2015, Mohamed Farah told the

CHS, “[i]f there’s no way out, I’m saying. If our backs are against

the wall, I’m gonna go kill [the one who punks me. You know the

one]2. Everybody has that one Fed that you know. Yours is the one,

that tall-assed nigga, M***.3 Mohamed Farah then identified by name

two additional known FBI agents that he would target.

- On April 17, 2015, as Defendant and co-conspirator Mohamed Farah

drove from Minneapolis to San Diego, Defendant stated, “I feel like

Tijuana, Tijuana, Tijuana, Tijuana.” A short time later, Defendant

stated, “I’m going to spit on America at the border crossing.” In this

same recording, both Farah and Defendant discuss “tweeting” FBI

agents upon arrival in Syria. Defendant specifically names two agents

involved in the investigation who he intends to tweet. Mohamed Farah

then stated that he would tweet “what’s up suckas?” to the agents.

2 The bracketed portion of the quote was translated from the Somali language.

3 Here, the name of a known FBI agent was spoken by Mohamed Farah.


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- During the drive to Mexico via San Diego, Defendant discussed

obtaining and shooting an “AK” (an assault rifle) immediately upon

arrival in Syria and that he, Farah, and the CHS would become

“shaheeds” (martyrs) before even going to training camp.

Further, following his arrest on the federal complaint, agents seized an iPod

belonging to Defendant. After obtaining a search warrant for this device, agents

executing the warrant found a Kik4 exchange between Defendant and an unidentified

ISIL facilitator. A portion of this Kik conversation obtained during the search of the

device is attached as Exhibit 2.

In this Kik exchange, Defendant and the ISIL facilitator discuss the recommended

route to take upon Defendant’s and his co-conspirator’s arrival in Turkey, where to book

his flight, how soon to book his flight, what type of “SIM card” to purchase for his cell

phone once in Turkey, the cost of overland transportation from Turkey to Syria, whether

the co-conspirators should stay together as they travel, and what lies to tell authorities at

the airport. In addition to evidencing that Defendant was fully engaged in the details of

the conspiracy and was committed to reaching Syria, this Kik conversation, in

combination with his recorded statement referencing contact with Abdi Nur, establishes

that Defendant lied to the pretrial services officer in San Diego when he asserted that he

had “no foreign ties”.

4 Kik is a Canadian-based company that does not maintain records of user conversations. The Kik

application is accessed via internet and unlike other messaging applications, Kik is accessed by username

and password instead of the user’s phone number.


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Statutory Criteria for Detention

18 U.S.C. § 3142(g) sets out a non-exhaustive list of factors a court should

consider in deciding whether to release or detain a defendant pending trial. Two factors

on that list outweigh all others in this case. Those factors are the nature and

circumstances of the offense charged, 18 U.S.C. § 3142(g)(1), and the nature and

seriousness of the danger to the community that would be posed by the person’s release,

18 U.S.C. § 3142(g)(4).

As to the first, Defendant is charged with conspiring to provide material support to

an organization whose brutality is shocking even by the standards of terrorism.5

Defendant made every effort to travel to Syria, where he would have joined ISIL, an

organization that he supports to the point of being willing to die in a martyrdom

operation.

As to the nature and seriousness of harm to the community, again, Defendant

seeks to join ISIL, perhaps the most extravagantly violent terrorist organization in the

world. In the context of a federal terrorism prosecution, “harm to the community”

certainly means harm to the immediate community here in Minnesota. The record of

these cases shows the harm to the Minnesota community that results when young men

succeed in joining foreign terrorist organizations and then reach back to Minnesota

through social media to recruit other young men. Further, co-conspirator threats to target

5 Krishnadev Calamur, ISIS: An Islamic Group Too Extreme Even for Al-Qaida, Minnesota Public Radio

(June 13, 2014), http://www.npr.org/sections/thetwo-way/2014/06/13/321665375/isis-an-islamist-group-

too-extreme-even-for-al-qaida).


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federal agents for murder serve to underscore the danger presented by this group of

young men if released back into the community.

But in this case harm to the community also means harm to the wider community

– in this case the court legitimately may (and should) consider the harm to innocent

civilians in the Middle East if the defendant achieves his ambition of traveling to Syria

and joining ISIL. United States v. Hir, 517 F.3d 1081, 1088-89 (9th Cir. 2008)

(“Because the district court has the power to try Abd Hir under American law for a crime

that allegedly resulted in grave harm to residents of the Philippines, we find no

justification for preventing it from considering the continuing threat that Abd Hir would

pose to that community if he were released pending trial.”).

No amount of evidence concerning Defendant’s family ties, academic

performance, or other Section 3142(g) factors could overcome the nature and seriousness

of the offense charged and the risk of harm that could result if the defendant reached

Syria. Further, a co-defendant with whom Defendant chose to travel, and whose travel

Defendant facilitated, has affirmatively stated that if his back is put against a wall, he will

target specific federal agents for murder.


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CONCLUSION

That probable cause supports the charges of conspiracy and attempt to provide

material support to a designated foreign terrorist organization creates a rebuttable

presumption that Defendant be detained pending trial. Beyond that, the evidence

supporting the relevant statutory criteria demonstrates that both bases for detention – the

risk of flight and his danger to the community – exist in this case. For these reasons, the

government respectfully requests that Defendant be detained pending trial in this matter.

Dated: May 21, 2015 Respectfully submitted,

ANDREW M. LUGER

United States Attorney

s/ John Docherty

BY: JOHN DOCHERTY

Assistant U.S. Attorney

Attorney ID No. 017516X

ANDREW R. WINTER

Assistant U.S. Attorney

Attorney ID Number 0232531


CASE 0:15-cr-00049-MJD-FLN Document 93-1 Filed 05/21/15 Page 1 of 32

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