form. See, e.g. Table of Contents at pp. 2-3 (references to “the conspiracy”). Therefore, it is
speculative for the court to conclude whether a particular statement was in furtherance of a specific
conspiracy or joint venture. United States v. Coe, 718 F.2d 830, 835-36 (7 Cir. 1983). And
apparently the identity of co-conspirators [except for Batterjee] may only be discerned from the
hearsay statements themselves. Even then, the authors are not always identified. Dates often cannot
be discerned from documents, so itis problematic to determine whether a statement occurred during
and in furtherance of the 1992-2002 RICO conspiracy [Count One], the 1994-2002 material support
conspiracy [Count Two] or the 1996-2002 money laundering conspiracy [Count Four].

Given the insufficiency of the Santiago proffer, the court cannot find by a preponderance of
the evidence that the proffered statements are admissible under the co-conspirator exception to the

hearsay rule before trial. The court need not address defendant’s various objections at this time.

February 3, 2003 ENTER:

Suzi B. Conlon
United States District Judge



‘Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Name of Assigned Judge Suzanne B. Conlon Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 CR 892 DATE 2/3/2003
CASE UNITED STATES vs. ENAAM M. ARNAOUT
TITLE
fin the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY:
(1) ao Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) im Answer brief to motion due . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on__ set for at .
(7) oOo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OOFRCP41(a)(1) O FRCP41(a)(2).
ao) [Other docket entry] The court does not find by a preponderance of the evidence that the
government's Santiago proffer satisfies the requirements for admissibility under the co-conspirator
exception to the hearsay rule, Fed. R. Evid. 801(d)(2)(E). Defendants objections to the proffer are moot.
ENTER MEMORANDUM OPINION AND ORDER.
(i) of [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
amber of notices

a | Notices mailed by judge's staff.

FEB 4 - 2003

UV. | Notified counsel by telephone.

Docketing to mail notices.

Mail AO 430 form.

Copy to judge/magistrate judge.

courtroom
cB deputy’s
initials

Dateltine'received ih
central Clerk’s Office

mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
Plaintiff, } No. 02 CR 892
v. } Suzanne B. Conlon, Judge
ENAAM M. ARNAOUT, }
Defendant. } DOCKETED

FEB 4 2903

MEMORANDUM OPINION AND ORDER

The government has submitted a 101-page proffer and 248 exhibits’ to support its request
for a pretrial determination that the proffered materials are admissible under the co-conspirator
exception to the hearsay rule. See Fed. R. Evid. 801(d)(2)(E); United States v. Santiago, 582 F.2d
1128, 1134 (7th Cir. 1978). Defendant Enaam Arnaout objects to the proffer.
The Conspiracies

Three distinct conspiracies are presented in the second superseding indictment. There are
significant differences in the nature and goals of the three charged conspiracies. Count One alleges
a racketeering conspiracy under 18 U.S.C. § 1962(c). The alleged racketeering acts are mail fraud,
wire fraud, obstruction of justice and money laundering. This conspiracy allegedly began in 1992,

ended in May 2002, and took place in Palos Hills, Worth, other locations in the Northern District of

‘In its reply to objections to its proffer, the government has withdrawn a substantial
portion of its exhibits.

[V8


Illinois and “elsewhere.” The alleged co-conspirators are Adel Batterjee “and others” associated
with the BIF [Benevolence International Foundation] enterprise.

Count Two alleges a conspiracy under 18 U.S.C. § 371 to provide material resources to
groups that include al Qaeda, Hezb e Islami, the Sudanese Popular Defense Force “and others”
engaged in violent confrontations in Chechnya and Sudan, in violation of 18 U.S.C. §§ 956(a)(1) and
2339A. This conspiracy allegedly began in September 1994, ended in May 2002, and took place in
the Northern District of Illinois and “elsewhere.” None of the co-conspirators are identified.

Count Four alleges a conspiracy under § 1956(h) to conduct financial transactions involving
proceeds of unlawful activities, namely mail fraud and wire fraud, with the intent to promote those
crimes, as well as to provide material support to organizations involved in violent activities; and to
transfer funds from within the United States to outside the United States with intent to give material
support to organizations engaged in violent activities. The life of this conspiracy was allegedly from
April 1996 until May 2002, and took place in Palos Hills, Worth, other locations in the Northern
District of Illinois and “elsewhere.” The co-conspirators are unidentified.

Analysis

In order to satisfy the co-conspirator exception to the hearsay rule, the government must
establish by a preponderance of the evidence that a conspiracy existed; that the defendant and the
declarant were both members of the same conspiracy; and that the proffered statements were made
during the course of and in furtherance of that conspiracy. See Bourjaily v. United States, 483 U.S.
171, 175 (1987); United States v. Gajo, 290 F.3d 922, 928 (7" Cir. 2002). Although the Santiago
proffer acknowledges the correct standard, the proffer is devoid of analysis linking proffered hearsay

to a specific conspiracy. In fact, the proffer consistently refers to “conspiracy” in only the singular