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
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

1The 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 terrorist organization under 8 U.S.C. § 1189. 

7226 UNITED STATES v. AFSHARI
According to the indictment, the defendants solicited charitable 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 “Committee for Human Rights” to an MEK bank account in Turkey. 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 provide 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 participated 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 indictment, 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” organization, having been informed of the designation in a conference call with an MEK leader. 

The district court dismissed the indictment on the ground

3The 1997-2001 period of the conspiracy charged in the indictment was

during Saddam Hussein’s regime. 

4United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996). 

UNITED STATES v. AFSHARI 7227
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 findings 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. 

6United 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.

7228 UNITED STATES v. AFSHARI
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 published 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 “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.”

11 That court may also set aside a designation for several other reasons, including that the designation

is “contrary to constitutional right, power, privilege, or immunity.”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 Treasury may require American financial institutions to block all

financial transactions involving its assets.14

[1] The district court found that it was a facially unconstitutional restriction on judicial review of the designation for

Congress to assign such review exclusively to the D.C. Circuit. 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 premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents. 

8

8 U.S.C. § 1189(a)(2)(A)(i). 

9

Id. § 1189(a)(2)(A)(ii). 

10Id. § 1189(c)(1). 

11Id. § 1189(c)(3)(A). 

12Id. § 1189(c)(3)(B). 

13Id. § 1189(a)(5), (6). 

14Id. § 1189(a)(2)(C). 

UNITED STATES v. AFSHARI 7229
[2] Many administrative determinations are reviewable

only by petition to the correct circuit court, bypassing the district 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 accepted.16 The congressional restriction does not interfere with the

opportunity for judicial review, as the MEK’s extensive litigation history shows. And this scheme avoids the awkwardness

of criminalizing material support for a designated organization 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 organization to the Court of Appeals for the D.C. Circuit is not facially

unconstitutional does not settle the question whether a defendant may be criminally prosecuted for donating to a designated 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 designation was assigned exclusively to the D.C. Circuit, was in

error. 

II. Due Process claim. 

The statute assigns criminal penalties to one who “knowingly provides material support or resources to a foreign ter15See, 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). 

16See, 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). 

7230 UNITED STATES v. AFSHARI
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 terrorist organization” under 8 U.S.C. § 1189(a)(1).18 The defendants’ central argument is that § 2339B denies them their

constitutional rights because it prohibits them from collaterally attacking the designation of a foreign terrorist organization. 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. 

1818 U.S.C. § 2339(B)(g)(6). 

19United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en banc).

UNITED STATES v. AFSHARI 7231
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 defendants 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 designation 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 firearm, 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 during the criminal hearing because the felon-in-possession statute 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 collateral attack was proper because a convicted felon could challenge 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 proceeding may go forward, even if the predicate was in some way

unconstitutional, so long as a sufficient opportunity for judicial review of the predicate exists. Here there was such an

20Lewis v. United States, 445 U.S. 55 (1980). 

21Id. at 62. 

22Id. at 64. 

7232 UNITED STATES v. AFSHARI
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 proceeding 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 proceeding 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 MendozaLopez appears to require that this review be had by the defendant 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 criminal proceeding. 

23See 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). 

24United States v. Mendoza-Lopez, 481 U.S. 828 (1987). 

25Id. at 837-38. 

26Id. (emphasis in original). 

UNITED STATES v. AFSHARI 7233
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 Administration 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 provision.30 If a defendant were not allowed to challenge the Export

Act in that proceeding, there would be no arbiter of the constitutionality of the Export Act. In contrast, Congress has explicitly 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 defendant’s right to challenge an export listing in a subsequent

criminal proceeding, the defendants’ argument here “is analogous 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 ‘detrimental 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

27United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992). 

28Id. at 1045-46. 

29Id. at 1040-41. 

30Id. at 1039. 

31United 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)). 

7234 UNITED STATES v. AFSHARI
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 constitutional rights, since the validity of the designation is not an element of the crime.32 Rather, the element is the fact of an

organization’s designation as a “foreign terrorist organization.”33

III. First Amendment claim. 

The defendants argue that the MEK is not a terrorist organization, 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 opportunity to challenge the “foreign terrorist organization” designation; so therefore (3) it deprives them of their First

Amendment right to make contributions to non-terrorist organizations. 

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 organization.”34 The indictment charges them with sending money to

the MEK. 

The defendants argue that they seek to express their political views, not by supporting terrorism, but rather by supporting an organization that the State Department has mistakenly

designated as terrorist.35 The due process part of this argu32United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en

banc). 

33Id.

3418 U.S.C. § 2339B(a)(1). 

35This is an odd argument since the MEK itself has admitted that it has

attacked various Iranian government organizations, assassinated several

UNITED STATES v. AFSHARI 7235
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 newsstand proprietor were violated by his conviction under a statute that prohibited him from selling an obscene magazine.37

What is similar to this case is that the obscenity of the magazine in McKinney was adjudicated, not in the criminal defendant’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). 

36McKinney v. Alabama, 424 U.S. 669 (1976). 

37Id. at 673. 

38See id.

39Id. at 674. 

40See McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003); Buckley

v. Valeo, 424 U.S. 1 (1976). 

7236 UNITED STATES v. AFSHARI
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 equivalent of speech. In this context, the donation of money could

properly be viewed by the government as more like the donation 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 candidates. An organization cannot be designated unless it is foreign,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 indictment charges them with sending money to the designated terrorist organization, not with providing instruction or

advocacy. 

We have already held that the strict scrutiny standard applicable 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.

41See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir.

2000). 

428 U.S.C. § 1189(a)(1)(A). 

43Cf. Humanitarian Law Project, 205 F.3d at 1137. 

44Id. at 1135. 

UNITED STATES v. AFSHARI 7237
The government “may certainly regulate contributions to

organizations performing unlawful or harmful activities, even

though such contributions may also express the donor’s feelings 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 monetary 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 restrictions are consistent with the Constitution.48 A fortiori, contribution 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 television commercials that say why a candidate would be a good

or bad choice for political office, yet could not prohibit contribution of money to a foreign group that the government determines 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

45Id.

46Id. at 1133. 

47McConnell, 540 U.S. at 137. 

48See 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 committee entails only a marginal restriction upon the contributor’s ability to

engage in free communication.”). 

49See Humanitarian Law Project, 205 F.3d at 1133. 

7238 UNITED STATES v. AFSHARI
distinguished from the McKinney issue, furnishing obscene

magazines.50

In McConnell, the Court found that “the prevention of corruption 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 “preventing the United States from being used as a base for terrorist 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

50See 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). 

51McConnell, 540 U.S. at 143. 

52Humanitarian Law Project, 205 F.3d at 1135. 

53Id. at 1136. 

54See Nat’l Council of Resistance of Iran, 251 F.3d 192. 

UNITED STATES v. AFSHARI 7239
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 policy 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 reasonable 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 assistance to designated terrorist organizations during the period of

designation. 

REVERSED.

7240 UNITED STATES v. AFSHARI