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RELATED REFERENCES: U.S. v. Marzook,383 F.Supp.2d 1056 (N.D.Ill. Aug. 22, 2005) (No. 03 CR 0978)

U.S. v. Abu Marzook, —- F.Supp.2d ——,2006 WL 250008 (N.D.Ill. Jan. 31, 2006) (No. 03 CR 0978)

COUNSEL: Joseph M. Ferguson, United StatesAttorney’s Office, Chicago, IL, for Plaintiff.

Robert Jay Bloom, Law Office of Robert Bloom, Oakland, CA; ThomasAnthony Durkin, Durkin & Roberts, Janis D. Roberts, Attorney at Law,Chicago, IL; Michael Kennedy, Michael Kennedy, P.C., New York, NY, forDefendants.

MEMORANDUM OPINIONAND ORDER

JUDGE: ST. EVE, J.

[*1]  On August 19, 2004, a Grand Jury returned a multiple-count,Second Superseding Indictment (the “Indictment”) againstDefendant Abdelhaleem Hasan Abdelraziq Ashqar (“Ashqar” or“Defendant”) and his co-defendants, Mousa Mohammed AbuMarzook (“Marzook”) and Muhammad Hamid Khalil Salah(“Salah”). Currently before the Court is Ashqar’sMotion to Dismiss Count I of the Second Superseding Indictment (the“Motion”). For the reasons stated below, the Court deniesAshqar’s motion.

BACKGROUND

The Indictment charges that Ashqar along with his co-defendantsand certain unindicted co-conspirators violated 18 U.S.C.§ 1962(d) of the Racketeer Influenced and CorruptOrganizations Act (“RICO”), which makes it “unlawfulfor any person to conspire to violate any of the provisions of subsection (a),(b), or (c) of [18 U.S.C. § 1962].” (R. 59-1, SecondSuperseding Indictment at ¶¶ 1-24CCC.) The Indictmentfurther alleges that Defendants “did conspire to violate [18 U.S.C.§ 1962(c)], that is, to conduct and participate, directly andindirectly, in the conduct of the affairs of the enterprise through a patternof racketeering activity … through multiple acts indictable”under various federal and state laws. (Id. at ¶ 3.) See also18 U.S.C. § 1962(c) (providing that “[i]t shall beunlawful for any person employed by or associated with any enterprise engagedin, or the activities of which affect, interstate or foreign commerce, toconduct or participate, directly or indirectly, in the conduct of suchenterprise’s affairs through a pattern of racketeering activity orcollection of unlawful debt”). The Indictment specifically identifiesacts indictable under 720 ILCS 5/8-2 and 720 ILCS 5/9-1 (first degree murderand conspiracy to commit first degree murder), 720 ILCS 5/8-1.1 (solicitationof first degree murder), and 18 U.S.C. § 1956 (moneylaundering and attempt and conspiracy to do so), among other statutes. (R.59-1, Second Superseding Indictment at ¶ 3.)

In support of this charge, the Indictment alleges the followingfacts. Beginning no later than about August 1988, Ashqar began working onbehalf of Hamas, an enterprise having the alleged common purpose of“forcing the State and citizens of Israel to cede physical andpolitical control over the lands comprising Israel, the West Bank, and the GazaStrip, and the replacement of the Israeli political authority over these landswith an Islamic government, through means that included the promotion andexecution of acts of terrorism.” (R. 59-1, Second SupersedingIndictment at ¶¶ 2, 24B.) From at least as early as1989 through January 1993, Ashqar along with certain co-conspirators utilizedvarious accounts at financial institutions throughout the United States totransfer large sums of money from various sources abroad through the UnitedStates to Israel and elsewhere. (Id. at ¶¶ 24M(i),24M(iv) (describing these transfers by location, approximate date, and monetaryamount).)

[*2]  The Indictment further alleges that, in or about August1993, Ashqar “debriefed” a co-conspirator who, along withSalah, had visited the Middle East on behalf of Hamas, (id. at¶ 24BB), and that Ashqar facilitated Co-conspiratorA’s reintegration into the community and Hamas in the United States. (Id. at¶ 24DD.) These efforts included the transfer of over $15,000 toCo-conspirator A, as well as a proposal to other Hamas members thatCo-conspirator A be included in a secret meeting of Hamas members to take placein Philadelphia, Pennsylvania. (Id.)

The Indictment further alleges that, as part of his role as aHamas administrator, Ashqar produced, collected, and disseminated numerousdocuments and information in furtherance of Hamas’s goals in theUnited States and abroad, including goals related to the Hamas command andcontrol structure, recruitment of new members for Hamas, progress reports ofHamas plans and activities, and control and minimization of damage to Hamasfrom the arrest and loss of members involved in terrorist actions. (Id. at¶ 24EE.) In particular, in furtherance of the conspiracy, Ashqarallegedly collected and, at times, disseminated documents relating to:

(1) Hamas members’ aliases, phone numbers, and addresses;

(2) the death or capture of various Hamas members;

(3) Hamas terrorist attacks;

(4) security training and directives, includingcounter-surveillance techniques, secrecy protocols, and interrogation issues;

(5) confessions provided by captured Hamas members;

(6) assessments and analysis on the state of Hamas in the WestBank and Gaza Strip as well as abroad;

(7) minutes or summaries of meetings between Hamas members andother organizations and groups, including the Palestinian LiberationOrganization, Fatah, the Palestinian Front for the Liberation of Palestine, andthe Palestinian Islamic Jihad, as well as meetings between Hamas members andforeign countries;

(8) information the Israelis obtained regarding Hamas membershipand activities;

(9) Israeli indictments against various Hamas members;

(10) The movement of money for Hamas activities;

(11) The Hamas deportees who were deported to Lebanon in December1992, including statements made by co-Defendant Marzook on the issue of thedeportees;

(12) Opposition to peace attempts between the State of Israel andthe Palestinians;

(13) A secret meeting of Hamas members in Philadelphia,Pennsylvania;

(14) Resistance to Israeli occupation of the West Bank and GazaStrip and Hamas’s relationship with other pro-Palestinianorganizations;

(15) Policies and activities of various terrorist organizations oranti-Israeli groups; and

(16) Hamas statements distributed by the Islamic Association forPalestine.

(Id.)

As part of his role as a Hamas administrator and in furtherance ofthe RICO conspiracy, the Indictment alleges that Ashqar participated in anumber of phone conversations related to Hamas activity both in the UnitedStates and abroad. (Id. at ¶ 24FF.) These phone conversationssometimes occurred in code. (Id.) These phone calls were in furtherance ofHamas’s goals in the United States and abroad, including goals relatedto the Hamas command and control structure, recruitment of new members ofHamas, progress reports of Hamas plans and activities, and control andminimization of damage to Hamas from the arrest and loss of members involved interrorist actions. (Id.) In particular, Ashqar allegedly participated in phoneconversations related to:

[*3]  (1) Hamas members’ contacts with the United Statesgovernment;

(2) Hamas’s need for financial assistance in order tofurther its goals;

(3) The movement of money for Hamas;

(4) The Hamas members who were deported to Lebanon in December1992;

(5) Management of Hamas and Hamas personnel within the Gaza Stripand West Bank, including specific conversations related to killing a Hamasmember who was not obeying orders, and killing Hamas members collaborating withIsraelis;

(6) Management of Hamas and Hamas members in the United States;

(7) Meetings Ashqar was to have with Co-conspirator G and SheikJamil Hamami in January and March 1994;

(8) A secret meeting of Hamas members in Philadelphia,Pennsylvania in October 1993;

(9) The affairs and activities of Co-conspirator A;

(10) Hamas terrorist operations and terrorists;

(11) Hamas organizational initiatives in the United States;

(12) Opposition to peace attempts between the State of Israel andPalestinians;

(13) Hamas founder Sheik Ahmed Yassin;

(14) Hamas’s views on the PLO, Yasir Arafat, andanti-Israeli organizations; and

(15) The affairs and activities of co-Defendant Salah.

(Id.)

The Indictment further alleges that in October 1993, Ashqar metwith various Hamas members in Philadelphia to discuss Hamas issues includingHamas’s illegal activities inside the United States and abroad andlessons learned from the capture of Salah. (Id. at¶ 24GG.) In March 1994, Ashqar met in Oxford, Mississippi,with two other Hamas members, including co-conspirator Sheik Jamil Hamami, todiscuss Hamas issues and the transfer of money for Hamas activities overseas. (Id. at¶ 24HH.)

The Indictment further alleges that, in February 1998, Ashqar,despite a grant of immunity, refused to testify before a federal Grand Jurysitting in New York, New York, and continued to refuse to testify into August1998, in an effort to hide his and co-conspirators’ activities onbehalf of Hamas, and to continue his activities on behalf of Hamas undeterred.(Id.at ¶ 24KK.) In June 2003, Ashqar, despite a grant of immunityand an order compelling his testimony, refused to testify before a Grand Jurysitting in Chicago, Illinois, and continued to refuse to testify into October2003, in an effort to hide his and co-conspirators’ activities onbehalf of Hamas, and to continue his activities on behalf of Hamas undetected.(Id.at ¶ 24CCC, Count IV, Count V.)

ANALYSIS

Fed.R.Crim.P. 12(b)(2) provides that “[a] party may raiseby pretrial motion any defense, objection, or request that the court candetermine without a trial of the general issue.” ”When consideringa motion to dismiss an indictment, a court assumes all facts in the indictmentare true and must ‘view all facts in the light most favorable to thegovernment.’ ”United States v. Segal, 299 F.Supp.2d 840,844 (N.D.Ill.2004) (quotingUnited States v. Yashar, 166 F.3d 873, 880(7th Cir.1999)). “An indictment is constitutionally sufficient if itstates all of the elements of the offense charged, informs the defendant of thenature of the charges so that he can prepare a defense, and enables thedefendant to assess any double jeopardy problems the charge mayraise.”United States v. Stout, 965 F.2d 340 (7th Cir.1992). A courtmust consider the indictment “as a whole to determine if it meets[these] requirements.”Id. In addition, “arguments raised in amotion to dismiss that rely on disputed facts should be denied.”UnitedStates v. Caputo, 288 F.Supp.2d 912, 916 (N.D.Ill.2003) (citingUnited Statesv. Shriver, 989 F.2d 898, 906 (7th Cir.1992). But “[a]n indictment,or a portion thereof, may be dismissed if it is otherwise defective or subjectto a defense that may be decided solely on issues of law.”UnitedStates v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003); seealsoUnited States v. Flores, 404 F.3d 320, 324 (5th Cir.2005)(“[t]he propriety of granting a motion to dismiss an indictment under[Fed.R.Crim.P.] 12 by pretrial motion is by-and-large contingent upon whetherthe infirmity in the prosecution is essentially one of law or involvesdeterminations of fact. If a question of law is involved, then consideration ofthe motion is generally proper.” (citation omitted)). With theseprinciples in mind, the Court turns to the merits of Defendant’sMotion.

I. Defendant’s First Amendment Rights to Freedom ofSpeech and Association

[*4]  Ashqar contends that the Indictment is “nothingshort of an attempt by the government to criminalize [Ashqar’s]political and social views solely because those views which he advocates are inopposition to the current Mid-East policy of the United States and thiscountry’s support of Israel.” (R. 264-1; Def.’s Mem.in Supp. of Mot. to Dismiss at 10.) Ashqar further contends that, as a result, theIndictment impinges on his First Amendment rights of freedom of speech andassociation, even though “Count One admittedly contains numerousallegations of conduct that are not protected [under the FirstAmendment].” (Id. at 11 (contending further that the Indictment“lumps Ashqar’s protected freedoms of association and speechwith unprotected conduct by others and, in turn, seeks to criminalizeAshqar’s First Amendment right to speech and association”).)In the alternative, Ashqar argues that the Court must apply the doctrine ofstrictissimi juris to address the alleged constitutional infirmities in theIndictment.

Ashqar bases his primary argument on the principle that the FirstAmendment prohibits criminal liability based on an individual’s mereassociation with a group. See, e.g.,NAACP v. Claiborne Hardware Co.,458 U.S. 886, 918-19, 102S.Ct. 3409, 3429, 73 L.Ed.2d 1215, 1240 (1982);Scales v. United States,367 U.S. 203, 224-25, 81S.Ct. 1469, 1484, 6 L.Ed.2d 782, 799 (1961) (finding unconstitutional a statutemaking it unlawful to be a knowing member in any organization that advocatedthe violent overthrow of the United States because “[i]n ourjurisprudence guilt is personal” and “[m]embership withoutmore, in an organization engaged in illegal advocacy is insufficient to satisfypersonal guilt”). This principle recognizes that an individual cannotbe punished for mere membership in an organization, even if that organizationhas legal as well as illegal goals. SeeScales, 367 U.S. at 229, 81S.Ct. at 1486, 6 L.Ed.2d at 802 (a “blanket prohibition of associationwith a group having both legal and illegal aims … [would pose] a realdanger that legitimate political expression or association would beimpaired”). Thus, any statute prohibiting mere association with suchan organization must require a showing that the defendant specifically intendedto further the organization’s unlawful goals. SeeBoim v. QuranicLiteracy Found. for Relief and Devel., 291 F.3d 1000, 1022 (7th Cir.2002) (theSeventh Circuit “[has] no quarrel with that general proposition orwith its corollary, that in order to impose liability on an individual forassociation with a group, it is necessary to establish that the group possessedunlawful goals and that the individual held a specific intent to further thoseillegal aims”); see alsoUnited States v. Hammoud,381 F.3d 316, 328-29 (4thCir.2004) (“it is a violation of the First Amendment to punish anindividual for mere membership in an organization that has legal and illegalgoals” (emphasis added)) (18 U.S.C. § 2339Bcontext).

[*5]  As the Seventh Circuit has stated, Claiborne Hardware andsimilar cases apply only “to situations where the government seeks toimpose liability on the basis of association alone, i.e., on the basis ofmembership alone or because a person espouses the views of an organization thatengages in illegal activities.”Boim, 291 F.3d at 1026.That is not the case here.

The allegations in the Indictment reflect that Ashqar is not goingto be tried under 18 U.S.C. § 1962(d) for his mereassociation or membership in Hamas, or for expressing views in favor of Hamas.See, e.g.,id. (holding that “[c]onduct giving rise to liability under[18 U.S.C. § 2339B], of course, does not implicateassociational or speech rights. Under section 2339B … HLF and QLI may,with impunity, become members of Hamas, praise Hamas for its use of terrorism,and vigorously advocate the goals and philosophies of Hamas. Section 2339B prohibitsonly the provision of material support … to a terrorist organization.There is no constitutional right to provide weapons and explosives toterrorists, nor is there any right to provide the resources with which theterrorists can purchase weapons and explosives.” (citation omitted));see alsoUnited States v. Glecier, 923 F.2d 496, 500 (7th Cir.1991)(“Section 1962(c), the familiar ‘substantive’ RICOprovision, criminalizes the participation in the affairs of an enterpriseaffecting interstate commerce through a pattern of racketeering activity.Section 1962(d), like all conspiracy provisions, has as its target the act ofagreement—here, the agreement to engage in activity that implicatessection 1962(c)”). Rather, the Indictment charges Ashqar with conductthat goes beyond mere association or advocacy. See, e.g.,id. at 1027 (holdingthat a civil suit brought under 18 U.S.C. § 2333 did notviolate the First Amendment because that statute does “not punish membershipin a designated terrorist organization, or penalize the expression of viewsheld by these organizations. Rather, such a suit is aimed at prohibiting thefunding of violent acts that these organizations wish to carry out.”);see alsoClaiborne Hardware, 458 U.S. at 916, 102 S.Ct. 3409, 73 L.Ed.2d1215) (“Certainly violence has no sanctuary in the First Amendment,and the use of weapons, gunpowder, and gasoline may not constitutionallymasquerade under the guise of Ɵadvocacy.’ ”(quotingSamuels v. Mackell,401 U.S. 66, 75, 91 S.Ct.764, 769, 27 L.Ed.2d 688 (1971) (Douglas, J., concurring)). For instance, theIndictment alleges that, in furtherance of the conspiracy, Ashqar, among otherthings: (1) acted as an archivist that collected and distributed informationand documents in furtherance of Hamas’s unlawful goals (R. 59-1;Second Superseding Indictment at ¶ 24EE); (2) participated inphone conversations related to Hamas’s terrorist operations (id. at¶ 24FF(x)); and (3) participated in phone conversationsrelated to killing a Hamas member who was not obeying orders, and killing Hamasmembers collaborating with Israelis (id. at ¶ 24FF(v)).Similar allegations abound. Thus, contrary to Defendant’s contention,the Court, at this juncture, cannot dismiss the Indictment on First Amendmentgrounds. See Fed.R.Crim.P. 12(b)(2);United States v. Segal, 299 F.Supp.2d at844. At trial, however, Ashqar is entitled to put forward evidence that theconduct alleged in the Indictment amounts only to mere membership in Hamas orpolitical advocacy in support of Hamas.

[*6]  Ashqar argues in the alternative that the doctrine ofstrictissimi juris applies in this case. “This doctrine literallytranslated means ‘of the strictestright.’ ”United States v. Cerilli, 603 F.2d 415, 421(3d Cir.1979). “The requirement of judging intent strictissimi jurisgrew out of penalties based on membership as such …”UnitedStates v. Dellinger, 472 F.2d 340, 392 (7th Cir.1972) (citingScales, 367 U.S. at 230, 81S.Ct. at 1487, 6 L.Ed.2d at 802);Noto v. United States,367 U.S. 290, 299-300, 81S.Ct. 1517, 1522, 6 L.Ed.2d 836 (1961) (violation of the membership clause ofthe Smith Act “must be judged strictissimi juris, for otherwise thereis a danger that one in sympathy with the legitimate aims of such an organization,but not specifically intending to accomplish them by resort to violence, mightbe punished for his adherence to lawful and constitutionally protectedpurposes, because of other and unprotected purposes which he does notnecessarily share”);Scales, 367 U.S. at 232, 81 S.Ct. at 1487-88(“Smith Act offenses involving as they do subtler elements than arepresent in most other crimes, call for strict standards in assessing theadequacy of the proof needed to make out a case of illegal advocacy”(emphasis added)). See alsoCerilli, 603 F.2d at 421 n. 8 (noting that the SmithAct made illegal “[w]hoever organizes or helps or attempts to organizeany society, group, or assembly of persons who teach, advocate, or encouragethe overthrow or destruction of any such government by force or violence; orbecomes or is a member of, or affiliates with, any such society, group, orassembly of persons, knowing the purposes thereof [could be fined orimprisoned]”); cf. 18 U.S.C. § 1962(d) (proscribingconspiracy to engage in a pattern of racketeering activity, not mere membershipor advocacy);Glecier, 923 F.2d at 500. “Courts use strictissimi jurisonly under very special circumstances …”United States v.Montour,944 F.2d 1019, 1024 (2d Cir.1991)

Indeed, as the Seventh Circuit explains,strictissimi juris applies“[w]hen the group activity out of which the alleged offense developscan be described as a bifarious undertaking, involving both legal and illegal purposesand conduct, and is within the shadow of the first amendment:”

This is necessary to avoid punishing one whoparticipates in such an undertaking and is in sympathy with its legitimateaims, but does not intend to accomplish them by unlawful means. Speciallymeticulous inquiry into the sufficiency of proof is justified and requiredbecause of the real possibility in considering group activity, characteristicof political or social movements, of an unfair imputation of the intent or actsof some participants to all others.

Dellinger, 472 F.2d at 392; [FN1] see alsoMontour, 944 F.2d at 1024(strictissimi juris applies “[w]hen the ultimate objective of a group,of which the defendant is a member, is legal, but the means chosen toaccomplish that end involve both legal and illegal activities, a court willapply strictissimi juris to ensure that the defendant was personally involvedwith the illegal aspects of the group activity.”);United States v.Markiewicz, 978 F.2d 786, 813 (2d Cir.1992) (same). In such situations,strictissimi juris requires a court to determine if “there issufficient direct or circumstantial evidence of the defendant’s ownadvocacy of and participation in the illegal goals of the conspiracy and [thecourt] may not impute the illegal intent of alleged co-conspirators to theactions of the defendant.” Montour, 944 F.2d at 1024 (citationsomitted).

FN1. As the Seventh Circuit described inDellinger, “the countsagainst the five defendants here charged with inciting, organizing, promotingand encouraging a riot under this statute, were based wholly on the making ofspeeches.” 472 F.2d at 359.

[*7]  Here, the facts alleged in the Indictment do not fall“within the shadow of the first amendment.”Dellinger, 472 F.2d at 392.Foremost, RICO does not criminalize mere membership or association with Hamasor mere advocacy on Hamas’s behalf. SeeGlecier, 923 F.2d at 500. Inaddition, the RICO count in the Indictment charges that Ashqar affirmativelyengaged in a racketeering conspiracy aimed at violating a number of federal andstate criminal statutes—conduct that is not protected under the FirstAmendment. (R. 59-1, Second Superseding Indictment at¶¶ 1-24CCC.) Thus, at this juncture, the Courtcannot conclude that the doctrine of strictissimi juris applies to this case.SeeUnited States v. Rodriguez, 803 F.2d 318, 322 (7th Cir.1986) (finding noerror where jury instructions did not state that strictissimi juris standardgoverned defendant’s conduct because “[i]n urging theapplication of a special standard of proof, Rodriguez ignores the charges andevidence against him. The evidence shows that Rodriguez knowingly andintentionally became a member of the conspiracy. The defendants were chargedwith agreeing to use force, not ‘advocating’ force whichrenders the Smith Act case relied upon by the defendant irrelevant.”);see alsoMontour, 944 F.2d at 1024 (“it is clear that strictissimi jurisdoes not apply to the instant matter. Here, both the alleged ends of the group(forcibly impeding the service of federal search warrants), and the allegedmeans chosen to achieve that end (setting up roadblocks on the reservation)were illegal” (parentheses original));Cerilli, 603 F.2d at 422(finding that “[t]he coercive solicitation of appellants here is notthe type of ‘bifarious undertaking … within the shadow of thefirst amendment’ that warrants the application of the Strictissimijuris doctrine…. We need not seriously fear that convictions in casessuch as this will chill the legitimate exercise of first amendment rights.Appellants have not been indicted for membership in a political party nor havethey been indicted for their personal political preferences. They have beenindicted for extortion. We are satisfied that the traditional standards ofproof and of judicial review are fully adequate to protect appellants’rights without application of the doctrine of Strictissimi juris.0).

II. Vagueness andPersonal Guilt

Ashqar also contends that Count I of the Indictment isunconstitutionally vague in violation of Ashqar’s right to Due Processunder the Fifth Amendment. Without saying as much, Ashqar also presents thedistinct argument that Count I is unconstitutional under the FifthAmendment’s requirement of personal guilt. Neither argument has merit.

In its previous Memorandum and Order addressing co-DefendantSalah’s motion to dismiss Count II of the Second SupersedingIndictment (the “Salah Opinion”), the Court provided anextensive analysis of the constitutional doctrine of vagueness. Brieflyrestated here, “[t]he void for vagueness doctrine rests on the basicprinciple of due process that a law is unconstitutional ‘if itsprohibitions are not clearly defined.’ ”Karlinv. Foust, 188 F.3d 446, 458 (7th Cir.1999) (quotingGrayned v. City ofRockford,408 U.S. 104,108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). The Supreme Court has noted thatvague laws “offend several important values.”Grayned, 408 U.S. at 108-09,92 S.Ct. at 2298-99, 33 L.Ed.2d at 227-28. First, vague laws fail to give“the person of ordinary intelligence a reasonable opportunity to knowwhat is prohibited, so that he may act accordingly [and] … may trapthe innocent by not providing fair warning.”Id. Second, vague lawsfail to provide explicit standards and thus “impermissibly delegate[ ]basic policy matters to policemen, judges, and juries for resolution on an adhoc and subjective basis, with the attendant dangers of arbitrary anddiscriminatory application.”Id. Third, “where a vague statuteabuts upon sensitive areas of basic First Amendment freedoms, it operates toinhibit the exercise of those freedoms.”Id. “Althoughthe [vagueness] doctrine focuses both on actual notice to citizens andarbitrary enforcement, [the Supreme Court has] recognized recently that themore important aspect … ‘is not actual notice, but …the requirement that a legislature establish minimal guidelines to govern lawenforcement.’ ”Kolender v. Lawson,461 U.S. 352, 357-58, 103S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983) (quotingSmith v. Goguen,415 U.S. 566, 94 S.Ct.1242, 39 L.Ed.2d 605 (1974)).

[*8]  A party may raise a vagueness challenge by arguing eitherthat a statute is vague as applied to the facts at hand, or that a statute isvoid on its face. As to the first type of challenge, where a party“receive[s] fair warning of the criminality of his own conduct fromthe statute in question” he may not attack the statute on grounds that“the language would not give similar fair warning with respect toother conduct which might be within its broad and literal ambit.”Parkerv. Levy,417 U.S. 733, 756, 94S.Ct. 2547, 2561-62, 41 L.Ed.2d 439, 457-58 (1974). “One to whoseconduct a statute clearly applies may not successfully challenge it forvagueness.”Id.

As to facial vagueness challenges, a court, generally speaking,“must uphold a facial challenge ‘only if the enactment isimpermissibly vague in all of its applications.’ ”Fullerv. Decatur Public School Bd. of Educ. School Dist. 61, 251 F.3d 662, 667 (7thCir.2001) (quotingFlipside, 455 U.S. at 494-95, 102 S.Ct. at 1191, 71L.Ed.2d at 369). But “[w]hen a law threatens to inhibit the exerciseof constitutionally protected rights [such as those protected under the FirstAmendment] … the Constitution demands that courts apply a morestringent vagueness test.”Karlin, 188 F.3d at 458 (“The mostimportant factor affecting the degree of clarity necessary to satisfy theConstitution is whether constitutional rights are at stake.”). In sucha scenario, a statute is void for vagueness if it reaches a“ ‘substantial amount of constitutionally protectedconduct.’ ”Fuller, 251 F.3d at 667(quotingFlipside, 455 U.S. at 497, 102 S.Ct. at 1191, 71 L.Ed.2d at 369).

Here, although so styled, Ashqar does not actually raise a“vagueness” challenge—which challenges the validityof a statute and focuses on whether the criminal statute at issue providessufficient notice of what conduct it criminalizes. Indeed, Ashqar makes noshowing whatever that RICO is “unconstitutionally vague in at least asubstantial number of the cases to which it could apply.” Rodgers, 755F.2d at 544. Likewise, Ashqar fails to make any argument that RICO is vague asapplied to the facts here (which, given the nature of the allegations in theIndictment, would fail in any event). Ashqar, thus, has not demonstrated thatthe Court should dismiss Count I for vagueness. [FN2]

FN2. In addition, the Seventh Circuitrepeatedly has held that RICO is not unconstitutionally vague. SeeUnitedStates v. Masters, 924 F.2d 1362, 1367 (7th Cir.1991) (finding RICO notunconstitutionally vague as applied defendants “[p]rovided thestatutes criminalizing the predicate acts are not unconstitutionallyvague—and no one argues they are—the defendants are onadequate notice that they are committing crimes, and the fact that they may notbe aware of the extent of their criminality and consequent exposure topunishment is a detail (the original conception of RICO as asentence-enhancement provision is pertinent here)” (parenthesesoriginal));United States v. Korando, 29 F.3d 1114, 1119 (7th Cir.1994) (rejectingargument that “RICO is unconstitutional in that it does not define thecriminal offense with sufficient clarity such that ordinary people understandwhat is allowed and what is forbidden”);United States v. Sanders, 962 F.2d 660, 678(7th Cir.1992) (same);Glecier, 923 F.2d at 497-98 n. 1.

Instead, Ashqar argues that dismissal is appropriate because theIndictment fails to satisfy the Fifth Amendment requirement of personal guilt.SeeScales, 367 U.S. at 224-225, 81 S.Ct. at 1484 (“In ourjurisprudence guilt is personal, and when the imposition of punishment on astatus or on conduct can only be justified by reference to the relationship ofthat status or conduct to other concededly criminal activity (here advocacy ofviolent overthrow), that relationship must be sufficiently substantial tosatisfy the concept of personal guilt in order to withstand attack under theDue Process Clause of the Fifth Amendment. Membership, without more, in anorganization engaged in illegal advocacy, it is now said, has not heretoforebeen recognized by this Court to be such a relationship.” (parenthesesoriginal)). On this front, Ashqar again relies heavily on the Scales case. Asdiscussed above, however, the Seventh Circuit already has noted that the Scalesrationale applies only when the criminal statute at issue criminalizes meremembership in an association with illegal aims. See Boim, 291 F.3d at 1026.Here, the Indictment does not allege and RICO, more generally, does notcriminalize mere membership in Hamas. See Glecier, 923 F.2d at 500. Rather theRICO charge reaches conduct that goes beyond membership—conduct thatis aimed at furthering the illegal aims of Hamas. (R. 59-1, Second SupersedingIndictment at ¶¶ 1-24CCC.) As a result, dismissal onthis basis is not warranted. [FN3]

FN3. Ashqar also relies onUnited States v.Al-Arian,308F.Supp.2d 1322, 1333 (M.D.Fla.2004). As the Court explained in the SalahOpinion, the Al-Arian court considered the question of scienter under thematerial support statute, 18 U.S.C. § 2339B (the same statuteunder which Ashqar’s co-Defendant Salah has been charged). The Courtdisagreed with Al-Arian to the extent it required a level a scienter that foundno basis in the statutory language. Instead, the Court held that to comportwith Supreme Court jurisprudence on the issue of scienter, the material supportstatute requires proof that a defendant provided material support knowingeither that the recipient was a designated FTO or had engaged in terroristactivity. SeeUnited States v. Marzook,383 F.Supp.2d 1056,1070 (N.D.Ill.2005). Regarding Count I, however, Ashqar does not contend thatRICO presents a similar issue of statutory construction, or thatRICO’s statutory language raises personal guilt or scienter issues.Thus, Ashqar’s reliance onAl-Arian is unavailing.

[*9]  Ashqar also appears to contend that dismissal is properbecause it could be that Ashqar did not in fact engage in the criminal actsalleged in the Indictment, but only in conduct protected by the Constitution.(See, e.g., R. 264-1; Def.’s Mem. in Supp. of Mot. to Dismiss at 17(arguing that the “ ‘forms of aid’ [thatAshqar provided] could amount to nothing more than Ashqar collecting contactsof members or supporters of Hamas humanitarian and political arms, of the stateof Hamas social welfare activities in the West Bank and Gaza Strip”).)That is a proper defense, but it is a fact-sensitive defense that Defendant canpresent at trial. It not grounds for dismissal. See Fed.R.Crim.P. 12(b)(2); seealsoCaputo, 288 F.Supp.2d at 916 (motions to dismiss cannot resolve factualquestions raised in an indictment); Flores, 404 F.3d at 324 (same).Accordingly, Defendant’s motion to dismiss is denied.

CONCLUSION

For the above reasons, the Court denies DefendantAshqar’s motion to dismiss Count I of the Second SupersedingIndictment.