United States v. Rahmani , 412 F.3d 1071 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
AMERICAN CIVIL LIBERTIES
UNION OF NORTHERN CALIFORNIA
INC; THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AND
CALIFORNIA ATTORNEYS FOR
CRIMINAL JUSTICE, No. 02-50355

Intervenors, D.C. No.
v. CR-01-00209-RMT
HOSSEIN AFSHARI, aka Hosseini OPINION
Deklami; MOHAMMAD OMIDVAR;
HASSAN REZAIE; ROYA RAHMANI,
aka Sister Tahmineh; NAVID TAJ,
aka Najaf Eshkoftegi; MUSTAFA
AHMADY; ALIREZA MOHAMAD
MORADI,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Robert M. Takasugi, District Judge, Presiding
Argued and Submitted
September 9, 2003—Pasadena, California
Filed June 17, 2005
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Kleinfeld
7223
7226 UNITED STATES v. AFSHARI
COUNSEL
Douglas N. Letter, U. S. Department of Justice, Washington,
D.C., for the appellant.
Stephen P. Berzon, Altshuler, Berzon, Nussbaum, Rubin &
Demain, San Francisco, California, for the appellees.
OPINION
KLEINFELD, Circuit Judge:
We review the constitutionality of a statute prohibiting
financial support to organizations designated as “terrorist.”
Facts
The issue here is the constitutionality of the crime charged
in the indictment, that from 1997 to 2001, Rahmani and others
knowingly and willfully conspired to provide material support
to the Mujahedin-e Khalq (“MEK”),1 a designated terrorist
organization, in violation of 18 U.S.C. § 2339B(a)(1).2
1
The MEK is also known as the People’s Mojahedin Organization for
Iran, or PMOI, and has a variety of other aliases.
2
In 1997, the Secretary of State designated the MEK as a foreign terror-
ist organization under 8 U.S.C. § 1189.
UNITED STATES v. AFSHARI 7227
According to the indictment, the defendants solicited chari-
table contributions at the Los Angeles International Airport
for the “Committee for Human Rights,” gave money and
credit cards to the MEK, and wired money from the “Com-
mittee for Human Rights” to an MEK bank account in Tur-
key. They did all this after participating in a conference call
with an MEK leader, in which they learned that the State
Department had designated the MEK as a foreign terrorist
organization. The MEK leader told them to continue to pro-
vide material support despite the designation. According to
the indictment in this case, the money they sent to the MEK
amounted to at least several hundred thousand dollars.
The MEK was founded in the 1960’s as an Iranian Marxist
group seeking to overthrow the regime then ruling Iran. It par-
ticipated in various terrorist activities against the Iranian
regime and against the United States, including the taking of
American embassy personnel as hostages in 1979. After the
Iranian regime fell and was replaced by a clerical, rather than
a Marxist, regime, MEK members fled to France. They later
settled in Iraq, along the Iranian border. There they carried out
terrorist activities with the support of Saddam Hussein’s
regime,3 as well as, if the indictment is correct, the money that
the defendants sent them.
For purposes of reviewing a motion to dismiss an indict-
ment, we assume the truth of what the indictment alleges.4
Thus, we take it as true that the defendants knew that they
were furnishing assistance to a designated “terrorist” organi-
zation, having been informed of the designation in a confer-
ence call with an MEK leader.
The district court dismissed the indictment on the ground
3
The 1997-2001 period of the conspiracy charged in the indictment was
during Saddam Hussein’s regime.
4
United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996).
7228 UNITED STATES v. AFSHARI
that the terrorist designation statute5 was unconstitutional. We
review de novo,6 and reverse.
Analysis
I. Challenging the designation.
8 U.S.C. § 1189(a)(1) sets out a carefully articulated
scheme for designating foreign terrorist organizations. To
make the designation, the Secretary has to make specific find-
ings that “the organization is a foreign organization”; that “the
organization engages in terrorist activity (as defined in 8
U.S.C. § 1182(a)(3)(B))”; and that “the terrorist activity of the
organization threatens the security of United States nationals
or the national security of the United States.”7
5
8 U.S.C. § 1189.
6
United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991).
7
8 U.S.C. § 1182(a)(3)(B)(iii). Terrorist activity defined. As used
in this Act, the term “terrorist activity” means any activity which
is unlawful under the laws of the place where it is committed . . .
and which involves any of the following:
(I) The highjacking or sabotage of any conveyance . . .
(II) The seizing or detaining, and threatening to kill, injure, or
continue to detain, another individual in order to compel a third
person . . . to do or abstain from doing any act as an explicit or
implicit condition for the release of the individual seized or
detained.
(III) A violent attack upon an internationally protected person
. . . or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any —
(a) biological agent, chemical agent, or nuclear weapon or
device, or
(b) explosive or firearm . . . ,
with intent to endanger, directly or indirectly, the safety of one
or more individuals or to cause substantial damage to property.
UNITED STATES v. AFSHARI 7229
The Secretary of State’s designation is only the beginning.
The Secretary also must furnish the congressional leadership
advance notification of the designation and the factual basis
for it, which Congress can reject.8 The designation is pub-
lished in the Federal Register.9 The designated organization is
entitled to judicial review of the Secretary’s action in the
United States Court of Appeals for the District of Columbia.10
That court may set aside the designation for the ordinary
administrative law reasons, such as that the designation is “ar-
bitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.”11 That court may also set aside a desig-
nation for several other reasons, including that the designation
is “contrary to constitutional right, power, privilege, or immuni-
ty.”12 Congress or the Secretary can revoke a designation.13
Among the concrete incentives that a designated organization
has to contest the designation is that the Secretary of the Trea-
sury may require American financial institutions to block all
financial transactions involving its assets.14
[1] The district court found that it was a facially unconstitu-
tional restriction on judicial review of the designation for
Congress to assign such review exclusively to the D.C. Cir-
cuit. We reject that position.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
22 U.S.C. § 2656f(d)(2). [T]he term “terrorism” means premedi-
tated, politically motivated violence perpetrated against noncom-
batant targets by subnational groups or clandestine agents.
8
8 U.S.C. § 1189(a)(2)(A)(i).
9
Id. § 1189(a)(2)(A)(ii).
10
Id. § 1189(c)(1).
11
Id. § 1189(c)(3)(A).
12
Id. § 1189(c)(3)(B).
13
Id. § 1189(a)(5), (6).
14
Id. § 1189(a)(2)(C).
7230 UNITED STATES v. AFSHARI
[2] Many administrative determinations are reviewable
only by petition to the correct circuit court, bypassing the dis-
trict court, and that procedure has generally been accepted.15
Many are reviewable only in the D.C. Circuit, or the Federal
Circuit, and those restrictions have also been generally accept-
ed.16 The congressional restriction does not interfere with the
opportunity for judicial review, as the MEK’s extensive litiga-
tion history shows. And this scheme avoids the awkwardness
of criminalizing material support for a designated organiza-
tion in some circuits but not others, as varying decisions in the
different regional circuits might.
[3] However, a holding that a restriction of judicial review
of the Secretary of State’s designation of a terrorist organiza-
tion to the Court of Appeals for the D.C. Circuit is not facially
unconstitutional does not settle the question whether a defen-
dant may be criminally prosecuted for donating to a desig-
nated organization. A defendant prosecuted in district court
for donating to such an organization may bring a due process
challenge to his or her prosecution in the district court. The
district court properly ruled that it had jurisdiction to review
this challenge. But its conclusion that § 1189 is facially
unconstitutional, because judicial review of the terrorist desig-
nation was assigned exclusively to the D.C. Circuit, was in
error.
II. Due Process claim.
The statute assigns criminal penalties to one who “know-
ingly provides material support or resources to a foreign ter-
15
See, e.g., City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336
(1958); Lockerty v. Phillips, 319 U.S. 182 (1943) (holding that a district
court lacked jurisdiction to hear a challenge to price controls under the
Emergency Price Controls Act where Congress had vested judicial review
for such challenges in an Emergency Court of Appeals).
16
See, e.g., 47 U.S.C. § 402(b) (vesting exclusive jurisdiction in the
D.C. Circuit over appeals from certain decisions and orders of the Federal
Communication Commission).
UNITED STATES v. AFSHARI 7231
rorist organization, or attempts or conspires to do so.”17 The
statutory phrase “terrorist organization” is a term of art,
defined by Congress as “an organization designated as a ter-
rorist organization” under 8 U.S.C. § 1189(a)(1).18 The defen-
dants’ central argument is that § 2339B denies them their
constitutional rights because it prohibits them from collater-
ally attacking the designation of a foreign terrorist organiza-
tion. This contention was recently rejected by the Fourth
Circuit en banc.19 We, too, reject it.
[4] The specific section that is at issue here is 8 U.S.C.
§ 1189(a)(8), which states in relevant part:
If a designation . . . has become effective . . . a
defendant in a criminal action or an alien in a
removal proceeding shall not be permitted to raise
any question concerning the validity of the issuance
of such designation or redesignation as a defense or
an objection at any trial or hearing.
The defendants are right that § 1189(a)(8) prevents them
from contending, in defense of the charges against them under
18 U.S.C. § 2339B, that the designated terrorist organization
is not really terrorist at all. No doubt Congress was well aware
that some might claim that “one man’s terrorist is another
man’s freedom fighter.” Congress clearly chose to delegate
17
18 U.S.C. § 2339B. Providing material support or resources to
designated foreign terrorist organizations
(a) Prohibited activities—
(1) Unlawful conduct—Whoever knowingly provides material
support or resources to a foreign terrorist organization, or
attempts or conspires to do so, shall be fined under this title or
imprisoned not more than 15 years, or both, and, if the death of
any person results, shall be imprisoned for any term of years or
for life.
18
18 U.S.C. § 2339(B)(g)(6).
19
United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en banc).
7232 UNITED STATES v. AFSHARI
policymaking authority to the President and Department of
State with respect to designation of terrorist organizations,
and to keep such policymaking authority out of the hands of
United States Attorneys and juries. Under § 2339B, if defen-
dants provide material support for an organization that has
been designated a terrorist organization under § 1189, they
commit the crime, and it does not matter whether the designa-
tion is correct or not.
[5] The question then, is whether due process prohibits a
prosecution under § 2339B when the predicate designation
was obtained in an unconstitutional manner or is otherwise
erroneous. In Lewis v. United States, the Supreme Court held
that a prior conviction could properly be used as a predicate
for a subsequent conviction for a felon in possession of a fire-
arm, even though it had been obtained in violation of the
Sixth Amendment right to counsel.20 The Court held that it
was proper to prohibit a collateral attack on the predicate dur-
ing the criminal hearing because the felon-in-possession stat-
ute made no exception “for a person whose outstanding
felony conviction ultimately might turn out to be invalid for
any reason.”21 The Court noted that the prohibition on collat-
eral attack was proper because a convicted felon could chal-
lenge the validity of the conviction before he purchased his
firearm.22
The defendants attempt to distinguish Lewis from this
§ 2339B prosecution because the defendant in Lewis had the
ability to challenge his predicate, whereas here the defendants
themselves are prohibited from challenging the designation.
But this does not change the principle that a criminal proceed-
ing may go forward, even if the predicate was in some way
unconstitutional, so long as a sufficient opportunity for judi-
cial review of the predicate exists. Here there was such an
20
Lewis v. United States, 445 U.S. 55 (1980).
21
Id. at 62.
22
Id. at 64.
 UNITED STATES v. AFSHARI 7233
opportunity, which the MEK took advantage of each time it
was designated a foreign terrorist organization.23
The defendants also attempt to distinguish Lewis by relying
on United States v. Mendoza-Lopez.24 In that case, the
Supreme Court held that a prosecution under 8 U.S.C. § 1326
for illegal reentry does not comport with due process if there
is no judicial review of whether the predicate deportation pro-
ceeding violated the alien’s rights.25 It is not at all clear from
Mendoza-Lopez that the Supreme Court meant that the due
process problem is in the later proceeding. The Court held
that “where a determination made in an administrative pro-
ceeding is to play a critical role in the subsequent imposition
of a criminal sanction, there must be some meaningful review
of the administrative proceeding.”26 Nothing in Mendoza-
Lopez appears to require that this review be had by the defen-
dant in the subsequent criminal proceeding.
[6] Furthermore, it is obvious in Lewis and Mendoza-Lopez
that the opportunity to seek review would be in the hands of
the defendants themselves because it was their rights at issue
in the hearing that created the predicate in the later criminal
proceeding. But here, the defendants’ rights were not directly
violated in the earlier designation proceeding. The predicate
designation was against the MEK, not the defendants. Section
1189 provides for the organizations to seek review of the
predicate designation, and that review was had in this case.
Therefore, due process does not require another review of the
predicate by the court adjudicating the instant § 2339B crimi-
nal proceeding.
23
See People’s Mojahedin Org. of Iran v. Dep’t of State, 182 F.3d 17
(D.C. Cir. 1999); Nat’l Council of Resistance of Iran v. Dep’t of State, 251
F.3d 192 (D.C. Cir. 2001); People’s Mojahedin Org. of Iran v. Dep’t of
State, 327 F.3d 1238 (D.C. Cir. 2003).
24
United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
25
Id. at 837-38.
26
Id. (emphasis in original).
7234 UNITED STATES v. AFSHARI
Our holding is further supported by our decision in United
States v. Bozarov.27 In Bozarov, we held that a defendant
charged with exporting items listed under the Export Admin-
istration Act without a license did not have a due process right
to collaterally attack the listing in his criminal proceeding.28
We held, however, that Bozarov had standing to challenge the
constitutionality of the Export Act in his criminal proceeding.29
This was because the Export Act explicitly provided that all
actions taken by the Secretary of Commerce under it were
“not subject to judicial review,” including a denial of the
license that was a predicate for a violation of the criminal provi-
sion.30 If a defendant were not allowed to challenge the Export
Act in that proceeding, there would be no arbiter of the consti-
tutionality of the Export Act. In contrast, Congress has explic-
itly provided that the D.C. Circuit is the arbiter of the
constitutionality of any designation under § 1189. Thus, there
is no constitutional need for the defendants to challenge the
predicate designation in this proceeding.
[7] As we noted in another case where we rejected a defen-
dant’s right to challenge an export listing in a subsequent
criminal proceeding, the defendants’ argument here “is analo-
gous to one by a defendant in a drug possession case that his
conviction cannot stand because no specific showing has been
made that the drug is a threat to society. . . . [A] showing that
the drug possessed by the individual defendant has a ‘detri-
mental effect on the general welfare’ [is not] an element of
the offense.”31 Likewise, the element of the crime that the
prosecutor must prove in a § 2339B case is the predicate fact
that a particular organization was designated at the time the
27
United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992).
28
Id. at 1045-46.
29
Id. at 1040-41.
30
Id. at 1039.
31
United States v. Mandel, 914 F.2d 1215 n.11 (9th Cir. 1990) (quoting
Spawr Optical Research, Inc. v. Baldridge, 649 F. Supp. 1366, 1372 n.10
(D.D.C. 1986)).
UNITED STATES v. AFSHARI 7235
material support was given, not whether the government made
a correct designation. Our position is consistent with that of
the Fourth Circuit, which held that a defendant’s inability to
challenge the designation was not a violation of his constitu-
tional rights, since the validity of the designation is not an ele-
ment of the crime.32 Rather, the element is the fact of an
organization’s designation as a “foreign terrorist organiza-
tion.”33
III. First Amendment claim.
The defendants argue that the MEK is not a terrorist organi-
zation, and that they have a right under the First Amendment
to contribute money to it. The argument is: (1) they have a
First Amendment right to contribute to organizations that are
not terrorist; (2) the statutory scheme denies them the oppor-
tunity to challenge the “foreign terrorist organization” desig-
nation; so therefore (3) it deprives them of their First
Amendment right to make contributions to non-terrorist orga-
nizations.
This argument is mistaken because what the defendants
propose to do is not to engage in speech, but rather to provide
material assistance. The statute says “knowingly provides
material support or resources to a foreign terrorist organiza-
tion.”34 The indictment charges them with sending money to
the MEK.
The defendants argue that they seek to express their politi-
cal views, not by supporting terrorism, but rather by support-
ing an organization that the State Department has mistakenly
designated as terrorist.35 The due process part of this argu-
32
United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en
banc).
33
Id.
34
18 U.S.C. § 2339B(a)(1).
35
This is an odd argument since the MEK itself has admitted that it has
attacked various Iranian government organizations, assassinated several
7236 UNITED STATES v. AFSHARI
ment, that they are entitled to an opportunity in their criminal
proceeding to relitigate whether the MEK is terrorist, is
addressed above. Defendants also make a distinct free speech
argument, however, based on McKinney v. Alabama.36
McKinney holds that the First Amendment rights of a news-
stand proprietor were violated by his conviction under a stat-
ute that prohibited him from selling an obscene magazine.37
What is similar to this case is that the obscenity of the maga-
zine in McKinney was adjudicated, not in the criminal defen-
dant’s proceeding, but in a previous in rem proceeding against
the magazine to which the newsstand proprietor was not a
party.38 The Court held that a decision in another proceeding
could not conclusively determine First Amendment rights to
sell a magazine of persons who had no notice and opportunity
to be heard in that proceeding.39 By analogy, the defendants
in this case argue that they should be entitled to litigate the
terrorism designation of the MEK in their criminal case.
The argument fails, however, because the cases are not
analogous. The magazine in McKinney was speech, the
money sent to the MEK is not. Though contributions of
money given to fund speech receive some First Amendment
protection,40 it does not follow that all contributions of money
are entitled to protection as though they were speech.
[8] What is at issue here is not anything close to pure
Iranian officials, and targeted Iranian Supreme Leader Khamenei for
assassination. See People’s Mojahedin Org. of Iran v. Dep’t of State, 327
F.3d 1238, 1243 (D.C. Cir. 2003).
36
McKinney v. Alabama, 424 U.S. 669 (1976).
37
Id. at 673.
38
See id.
39
Id. at 674.
40
See McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003); Buckley
v. Valeo, 424 U.S. 1 (1976).
UNITED STATES v. AFSHARI 7237
speech. It is, rather, material support to foreign organizations
that the United States has deemed, through a lawful process,
a threat to our national security. The fact that the support
takes the form of money does not make the support the equiv-
alent of speech. In this context, the donation of money could
properly be viewed by the government as more like the dona-
tion of bombs and ammunition than speech.41 The “foreign
terrorist organization” designation means that the Executive
Branch has determined — and the D.C. Circuit has concluded
that the determination was properly made — that materially
supporting the organization is materially supporting actual
violence.
Donations to designated foreign terrorist organizations are
not akin to donations to domestic political parties or candi-
dates. An organization cannot be designated unless it is for-
eign,42 so domestic associations are immune from the scheme.
And in this case, there is no room for a vagueness challenge
on the ground that the defendants were merely contributing
what might arguably be in the nature of speech.43 The indict-
ment charges them with sending money to the designated ter-
rorist organization, not with providing instruction or
advocacy.
We have already held that the strict scrutiny standard appli-
cable to speech regulations does not apply to a prohibition
against sending money to foreign terrorist organizations.44
That a group engages in politics and has political goals does
not imply that all support for it is speech, or that it promotes
its political goals by means of speech. Guns and bombs are
not speech. Sometimes money serves as a proxy for speech,
and sometimes it buys goods and services that are not speech.
41
See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir.
2000).
42
8 U.S.C. § 1189(a)(1)(A).
43
Cf. Humanitarian Law Project, 205 F.3d at 1137.
44
Id. at 1135.
7238 UNITED STATES v. AFSHARI
The government “may certainly regulate contributions to
organizations performing unlawful or harmful activities, even
though such contributions may also express the donor’s feel-
ings about the recipient.”45 There is no First Amendment right
“to facilitate terrorism by giving terrorists the weapons and
explosives with which to carry out their grisly missions.”46
[9] A less rigorous standard of review is applied to mone-
tary contributions than to pure speech.47 Even giving money
to perfectly legitimate political expression within the United
States can be, and is, restricted by Congress, and such restric-
tions are consistent with the Constitution.48 A fortiori, contri-
bution of money to foreign organizations that the United
States has determined engage in terrorist activities can be
restricted by Congress.49 It would be anomalous indeed if
Congress could prohibit the contribution of money for televi-
sion commercials that say why a candidate would be a good
or bad choice for political office, yet could not prohibit contri-
bution of money to a foreign group that the government deter-
mines engages in terrorist activities. Defendants are entitled
under the First Amendment to publish articles arguing that the
MEK is not really a terrorist organization, but they are not
entitled to furnish bombs to the MEK, nor to furnish money
to buy bombs and ammunition.
The deference due the Executive Branch in the area of
national security reinforces our conclusion that furnishing
material assistance to foreign terrorist organizations must be
45
Id.
46
Id. at 1133.
47
McConnell, 540 U.S. at 137.
48
See id.; Buckley, 424 U.S. at 20 (“[A] limitation upon the amount that
any one person or group may contribute to a candidate or political com-
mittee entails only a marginal restriction upon the contributor’s ability to
engage in free communication.”).
49
See Humanitarian Law Project, 205 F.3d at 1133.
UNITED STATES v. AFSHARI 7239
distinguished from the McKinney issue, furnishing obscene
magazines.50
In McConnell, the Court found that “the prevention of cor-
ruption or its appearance constitutes a sufficiently important
interest to justify political contribution limits.”51 The interest
in protecting our country from foreign terrorist organizations
is a fortiori “a sufficiently important interest.” “[T]he federal
government clearly has the power to enact laws restricting the
dealings of United States citizens with foreign entities.”52
“[W]e must allow the political branches wide latitude in
selecting the means to bring about the desired goal” of “pre-
venting the United States from being used as a base for terror-
ist fundraising.”53
[10] Conceivably the MEK developed its practices at a time
when the United States supported the previous regime in Iran,
and maintained its position while harbored by the Saddam
Hussein Ba’ath regime in Iraq. Maybe the MEK’s position
will change, or has changed, so that its interest in overturning
the current regime in Iran coincides with the interests of the
United States. Defendants could be right about the MEK. But
that is not for us, or for a jury in defendants’ case, to say. The
sometimes subtle analysis of a foreign organization’s political
program to determine whether it is indeed a terrorist threat to
the United States is particularly within the expertise of the
State Department and the Executive Branch.54 Juries could not
50
See Regan v. Wald, 468 U.S. 222, 242 (1984) (“Matters relating ‘to
the conduct of foreign relations . . . are so exclusively entrusted to the
political branches of government as to be largely immune from judicial
inquiry or interference.”) (quoting Harisiades v. Shaughnessy, 342 U.S.
580, 589 (1952)); Zemel v. Rusk, 381 U.S. 1 (1965) (rejecting due process
challenge to the Secretary of State’s refusal to validate passports of United
States citizens to travel to Cuba).
51
McConnell, 540 U.S. at 143.
52
Humanitarian Law Project, 205 F.3d at 1135.
53
Id. at 1136.
54
See Nat’l Council of Resistance of Iran, 251 F.3d 192.
7240 UNITED STATES v. AFSHARI
make reliable determinations without extensive foreign policy
education and the disclosure of classified materials. Nor is it
appropriate for a jury in a criminal case to make foreign pol-
icy decisions for the United States. Leaving the determination
of whether a group is a “foreign terrorist organization” to the
Executive Branch, coupled with the procedural protections
and judicial review afforded by the statute, is both a reason-
able and a constitutional way to make such determinations.
The Constitution does not forbid Congress from requiring
individuals, whether they agree with the Executive Branch
determination or not, to refrain from furnishing material assis-
tance to designated terrorist organizations during the period of
designation.
REVERSED.