IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, ) 

 ) 

Plaintiff, )

 ) 

v. ) No. 03 CR 0978

 )

MOUSA MOHAMMED ABU MARZOOK, )

MUHAMMAD HAMID KHALIL )

SALAH, and ABDELHALEEM )

HASAN ABDELRAZIQ ASHQAR, )

)

Defendants. ) 

 

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

On August 19, 2004, a Grand Jury returned a multiple-count, Second Superseding

Indictment (the “Indictment”) against Defendant Muhammad Hamid Khalil Salah (“Salah” or

“Defendant”) and his Co-Defendants, Abdelhaleem Hasan Abdelraziq Ashqar (“Ashqar”) and

Mousa Mohammed Abu Marzook (“Marzook”). Defendant Salah moves to dismiss Count I of

the Indictment. For the reasons stated below, the Court denies Salah’s motion.

BACKGROUND

I. Overview of Count I

Count I of the Indictment charges Defendant Salah with conspiring to violate the

Racketeer Influenced and Corrupt Organizations Act (“RICO”), in violation of 18 U.S.C.

1962(d). Count I is premised upon and related to Salah’s alleged support of the Hamas terrorist

organization, both prior to and after the United States designated Hamas as a Specially

Designated Terrorist Organization and a Foreign Terrorist Organization (“FTO”). The
2

Indictment identifies Hamas, a group of individuals associated in fact, as a RICO enterprise. (R.

59-1; Second Superseding Indictment at ¶ 2.) It alleges that Hamas, among other things, has

called for violent terrorist attacks and engaged in numerous terrorist attacks aimed at Israeli

military personnel, police officers, and civilians. (Id. at ¶ 1B.) 

II. Alleged Overt Acts

A. Alleged Pre-designation Activities

The Indictment alleges that Salah committed the following overt acts in furtherance of

the purported RICO conspiracy before the United States designated Hamas as a Specially

Designated Terrorist Organization or a FTO. Beginning no later than 1990, Salah allegedly

participated in a Hamas security committee based in the United States. (Id. at ¶ 24C.) As a

member of the security committee, Salah purportedly “compiled information on . . . Palestinian

men . . . and their capacity to participate in terrorist activities against Israel.” (Id.) In

approximately September 1992, Salah allegedly purchased airline tickets in Chicago to facilitate

the training of two co-conspirators. (Id. at ¶ 24E.) Those co-conspirators then purportedly used

the tickets Salah had purchased to travel to the Middle East and receive advanced training in

bomb-making. (Id.) 

The Indictment alleges that in August 1992, Salah met and conferred with Co-Defendant

Marzook and a co-conspirator “regarding the need to revitalize Hamas terrorist operations in the

West Bank.” (Id. at ¶ 24F.) To further this objective, Salah allegedly traveled from Chicago to

the West Bank for meetings at which he purportedly discussed terrorist and political activities in

the West Bank and the Gaza Strip. (Id. at ¶ 24G.) While in the West Bank, Salah allegedly

learned that Hamas needed money to purchase weapons and other military supplies to carry out
3

terrorist activities, and purportedly provided a co-conspirator with $50,000 from his bank in

Chicago to make such purchases. (Id. at ¶ 24H.) The Indictment alleges that when Salah later

returned to Chicago, he received a $50,000 check from Marzook as repayment. (Id. at ¶ 24K.) 

In approximately September 1992, Salah allegedly met with a Hamas leader and learned

that Hamas had recruits who were prepared to carry out terrorist attacks, provided that additional

funding was available. (Id. at ¶ 24J.) He further learned that certain individuals were

purportedly providing information about Hamas activities to Israeli authorities. (Id.) Salah

allegedly provided this information to Marzook and others. (Id.) In approximately December

1992, Salah purportedly attempted to have a fake passport made for a co-conspirator in Chicago. 

(Id. at ¶ 24N.) Also in December 1992, Marzook allegedly contacted Salah to discuss Israel’s

deportation of 400 Hamas members. (Id. at ¶ 24O.) Between approximately December 29, 1992

and January 25, 1993, Salah allegedly “received into his Chicago based bank accounts a series of

wire transfers, totaling approximately $985,000, from accounts with [Marzook], to be distributed

to Hamas members in the West Bank and Gaza Strip.” (Id. at ¶ 24R.) Salah allegedly traveled

from Chicago to the West Bank and the Gaza Strip in approximately late December 1992 to

assess the ability of Hamas to continue to function and carry out terrorist attacks following the

deportations, and to deliver money to Hamas members. (Id. at ¶ 24Q.) 

Salah purportedly made another trip from the United States to the West Bank on or about

January 13, 1993. (Id. at ¶ 24S.) While en route to the Middle East, Salah allegedly stopped in

London, England to meet with a co-conspirator. (Id. at ¶ 24T.) The Indictment alleges that after

Salah arrived in Israel, he arranged to have approximately $230,000 from his bank accounts in

Chicago transferred to him for distribution to Hamas members in the West Bank and the Gaza
4

Strip. (Id. at ¶ 24U.) The Indictment further alleges that while Salah was in Israel, he met with a

co-conspirator and various members of Hamas to discuss terrorist activities and provide them

with money. (Id. at ¶¶ 24V, W, X.) On or about January 25, 1993, while in Israel, Israeli

authorities arrested Salah. (Id. at ¶ 24Y.) He remained incarcerated in Israel until approximately

1997. (Id. at ¶ 1J.) Salah allegedly retained his membership in Hamas during this term of

imprisonment. (Id.) 

B. Alleged Post-designation Activities 

The Indictment further alleges that in 1997, following his term of imprisonment in Israel,

Salah returned to the United States and continued working for Hamas by recruiting Individual A

to join Hamas and travel to the Middle East. (Id. at ¶ 24OO.) Salah allegedly assisted Individual

A with travel arrangements to Israel to conduct Hamas-related business. (Id. at ¶ 24PP.) 

Individual A, at the direction of Salah, then purportedly traveled to Israel and the West Bank,

provided money to the family of an imprisoned co-conspirator, attempted to meet with the

imprisoned co-conspirator, scouted locations in and around Jerusalem for suitable targets for

future terrorist attacks, attempted to enter the Gaza Strip to visit with a Hamas leader, and met

with various Hamas members. (Id. at ¶¶ 24QQ, RR, SS, TT, UU, VV.) During Individual A’s

trip to Israel, he allegedly discussed the progress that he was making with Salah, and Salah

allegedly discussed Individual A’s trip with Hamas members located in the West Bank. (Id. at

¶¶ 24WW, XX.) According to the Indictment, when Individual A returned to the United States,

Salah debriefed him regarding his trip, told him that he was pleased with the success of the trip

and informed him that future trips would be requested. (Id. at ¶¶ 24YY, ZZ.) Individual A also
5

purportedly provided Salah with a photograph he had received of Salah with two coconspirators. (Id. at ¶ 24AAA.)

 Additionally, in or about April 2001, Salah allegedly provided sworn answers in a civil lawsuit

filed in the Northern District of Illinois, Boim v. Quranic Literacy Inst. and Holy Land Found.

for Relief and Dev., No. 00 C 2905, that he knew to be false. (Id. at ¶ 24BBB.) 

ARGUMENT

I. Standard

Federal Rule of Criminal Procedure 12(b)(2) provides that “[a] party may raise by

pretrial motion any defense, objection, or request that the court can determine without a trial of

the general issue.” Fed. R. Crim. P. 12(b)(2). “When considering a motion to dismiss an

indictment, a court assumes all facts in the indictment are true and must ‘view all facts in the

light most favorable to the government.’” United States v. Segal, 299 F. Supp. 2d 840, 844

(N.D. Ill. 2004) (quoting United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999)). “An

indictment is constitutionally sufficient if it states all of the elements of the offense charged,

informs the defendant of the nature of the charges so that he can prepare a defense, and enables

the defendant to assess any double jeopardy problems the charge may raise.” United States v.

Stout, 965 F.2d 340, 344 (7th Cir. 1992). A court must “consider the indictment as a whole to

determine if it meets [these] requirements.” Id. In addition, “arguments raised in a motion to

dismiss that rely on disputed facts should be denied.” United States v. Caputo, 288 F. Supp. 2d

912, 916 (N.D. Ill. 2003) (citing United States v. Shriver, 989 F.2d 898, 906 (7th Cir. 1992)). 

“An indictment, or a portion thereof, may be dismissed if it is otherwise defective or subject to a

defense that may be decided solely on issues of law.” United States v. Labs of Virginia, Inc.,
6

272 F. Supp. 2d 764, 768 (N.D. Ill. 2003); see also United 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 whether the infirmity in the

prosecution is essentially one of law or involves determinations of fact. If a question of law is

involved, then consideration of the motion is generally proper.” (quotations and citations

omitted)).

II. Political Question

Defendant Salah contends that Count I, in designating Hamas as a RICO enterprise,

presents non-justiciable political questions. The political question doctrine “rests primarily on

the principle of separation of powers and the policy of judicial self-restraint.” Flynn v. Shultz,

748 F.2d 1186, 1190 (7th Cir. 1984) (citations omitted). In Baker v. Carr, 369 U.S. 186, 82 S. Ct.

691, 7 L. Ed. 2d 663 (1962), the Supreme Court set forth a comprehensive list of factors

indicating when a case involves a political question: 

[p]rominent on the surface of any case held to involve a political question is found a

textually demonstrable constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and manageable standards for resolving

it; or the impossibility of deciding without an initial policy determination of a kind

clearly for nonjudicial discretion; or the impossibility of a court’s undertaking

independent resolution without expressing lack of the respect due coordinate branches of

government; or an unusual need for unquestioning adherence to a political decision

already made; or the potentiality of embarrassment from multifarious pronouncements by

various departments on one question. 

Id. at 217, 82 S. Ct. at 710. “Unless one of these formulations is inextricable from the case at

bar, there should be no dismissal for non-justiciability on the ground of a political question’s

presence.” Id. 
1

 The Court dealt with this matter at numerous hearings including those that took place on

August 4, 2004, September 14, 2005, December 22, 2005, and January 17, 2006, and it

addressed this issue in its January 31, 2006 opinion. Furthermore, the Israeli authorities agreed

to waive the classification designation as to Defendant Salah and his counsel regarding many

documents and significant testimony at Salah’s suppression hearing. See United States v.

Marzook, 412 F. Supp. 2d 913, 917 (N.D. Ill. 2006). 

7

Salah argues that Count I implicates a political question because “[t]he determination of

whether or not Hamas is a racketeering enterprise or whether Mr. Salah was part of a RICO

conspiracy lacks judicially discoverable and manageable standards for resolution, presents policy

determinations only appropriate for non-judicial discretion, and poses serious potential judicial

interference with coordinate branches of government.” (R. 260-1; Salah’s Mot. to Dismiss

Count I at 4.) In support of this assertion, Salah claims that his “ongoing efforts . . . to obtain

‘classified documents’ [and] [t]he potential political (as well as jurisdictional) problems with the

Court ordering a foreign sovereign . . . to produce such documents and testimony, underscores

the lack of manageable judicial standards to resolve such critical due process issues.” (Id.) This

discovery matter, which the Court has addressed on multiple occasions,1

 does not bear on

whether manageable standards exist and does not provide a basis to dismiss Count I of the

Indictment. 

Congress has specifically defined a RICO “enterprise” as “any individual, partnership,

corporation, association, or other legal entity, and any union or group of individuals associated in

fact although not a legal entity.” 18 U.S.C. § 1961(4). This definition provides the basis to

determine the sufficiency of the allegations that Hamas, a group of individuals associated in fact,

constitutes a RICO enterprise. See, e.g., United States v. Turkette, 452 U.S. 576, 101 S. Ct.

2524, 69 L. Ed. 2d 246 (1981) (interpreting § 1961(4)); Richmond v. Nationwide Cassel L.P., 52
8

F.3d 640 (7th Cir. 1995) (finding that plaintiff failed to adequately allege a RICO enterprise). 

The Seventh Circuit also has developed detailed jury instructions on the definition of

“enterprise.” See Seventh Circuit Criminal Pattern Jury Instructions, 18 U.S.C. § 1961(4), at 271

(1998). These factors provide manageable standards to allow the jury and court to determine

whether Hamas is a group of individuals associated in fact within the definition of § 1961(4). 

Cf. Flynn, 748 F.2d at 1193 (holding that the Hostage Act contained no “standards upon which

judicial review could be undertaken” where the terms of the statute and the legislative history

provide no indication as to the meaning of the phrase “unjustly deprived”). 

Furthermore, Defendant Salah has not indicated how the determination of whether

Hamas constitutes a RICO enterprise implicates policy determinations only appropriate for nonjudicial discretion or poses serious potential judicial interference with coordinate branches of

government. Indeed, none of the cases he cites for this proposition address whether designating

a group of individuals as a RICO enterprise implicates the political question doctrine. Salah

seems to rest his argument on the theory that because Hamas is a “political force” it cannot be a

“racketeering enterprise.” (R. 260-1; Salah’s Mot. to Dismiss Count I at 2.) The Supreme Court

has stated, however, that the political question doctrine “is one of ‘political questions,’ not one

of ‘political cases.’” Baker, 369 U.S. at 217, 82 S. Ct. at 710. Additionally, the Seventh Circuit

“has directly held that governmental or public entities fit within the definition of ‘enterprise’ for

purposes of RICO.” United States v. Kovic, 684 F.2d 512, 516 (7th Cir. 1982) (citations omitted)

(affirming RICO conviction where the Chicago Police Department constituted a RICO

enterprise); United States v. Murphy, 768 F.2d 1518, 1531 (7th Cir. 1985) (identifying the Circuit

Court of Cook County as a RICO enterprise); United States v. Lee Stoller Enters., Inc., 652 F.2d
2

 Because a foreign organization may be a RICO enterprise, Salah’s argument that RICO

was not intended to include a foreign resistence organization such as Hamas fails. Additionally,

Salah’s argument that RICO does not apply because Hamas has carried out no acts against the

United States fails because Count I specifically alleges that Hamas’ activities have impacted the

United States. For example, Hamas members have purportedly claimed credit for terrorist

operations that resulted in the death of American citizens. (R. 59-1; Second Superseding

Indictment at ¶ 24II.) 

9

1313, 1319 (7th Cir. 1981) (finding that the office of Madison County Sheriff was a RICO

enterprise); United States v. Grzywacz, 603 F.2d 682, 687 (7th Cir. 1979) (finding that the city

police department was a RICO enterprise). RICO cases do not pose political questions simply

because they charge political entities as RICO enterprises. 

Moreover, “it is error to suppose that every case or controversy which touches foreign

relations lies beyond judicial cognizance.” Baker, 369 U.S. at 211, 82 S. Ct. at 707. Indeed, the

fact that Hamas is a “foreign entit[y] does not immunize [it] from the reach of RICO.”2 Alfadda

v. Fenn, 935 F.2d 475, 479 (2d Cir. 1991); see also United States v. Al-Arian, 308 F. Supp. 2d

1322, 1349-50 (M.D. Fla. 2004) (upholding a RICO conspiracy claim that charged the

Palestinian Islamic Jihad-Shiqaqi Faction, a designated FTO, as a RICO enterprise); United

States v. Parness, 503 F.2d 430, 439 (2d Cir. 1974) (“we find no indication that Congress

intended to limit Title IX to infiltration of domestic enterprises”). The Second Circuit has

explained that RICO “in no way involves regulation of the internal affairs of enterprises subject

[to] the sovereign power of foreign states.” Parness, 503 F.2d at 440. Accordingly, Count I

does not pose a non-justiciable political question because none of the Baker factors are present in

this case. 

III. Alleged Overt Acts
10

Additionally, Defendant Salah argues that the alleged overt acts in Count I fail to support

a RICO conspiracy claim against him. 

A. Extra-territorial Predicate Acts

Salah moves to dismiss Count I on the basis that it “alleges only extra-territorial

predicate acts non-cognizable under RICO.” (R. 260-1; Salah’s Mot. to Dismiss Count I at 11.) 

The Indictment, however, contains numerous allegations of overt acts that Salah committed in

the United States. Count I, for example, alleges that Salah: (1) was a member of a United

States-based Hamas security committee, (R. 59-1; Second Superseding Indictment at ¶ 24C); (2)

purchased airline tickets in Chicago, Illinois to facilitate the training of certain purported coconspirators, (id. at ¶ 24E); (3) moved money in and out of a bank based in Chicago in

connection with Hamas-related activities, (id. at ¶¶ 24H, R); and (4) attempted to obtain a false

passport in Chicago for a purported co-conspirator. (Id. at ¶ 24N.) These allegations make clear

that Count I is not premised solely on extra-territorial jurisdiction. 

B. Alleged Pre-designation Racketeering Activities

Additionally, Salah contends that the predicate acts that he allegedly committed before

the designation of Hamas as a Specially Designated Terrorist Organization in 1995 or the

designation of Hamas as a FTO in 1997 are protected First Amendment conduct. Salah

specifically challenges the purported predicate acts of providing material support to Hamas. The

material support statute “subjects to criminal liability anyone who, within the United States or

subject to the jurisdiction of the United States, knowingly provides material support or resources

to a foreign terrorist organization, or attempts or conspires to do so.” Boim v. Quranic Literacy

Inst. and Holy Land Found. for Relief and Dev., 291 F.3d 1000, 1025 (7th Cir. 2002) (citing 18
3

 In his motion to dismiss, Salah refrains from identifying Individual A by his name or

alias even though that information was available to Salah. The Court also refers to this

informant as Individual A.

4

 Salah asks the Court to delay its determination of Individual A’s reliability pending full

development of the facts and a hearing. The Court declines to do so. 

11

U.S.C. § 2339B(a)(1)). The government concedes that “a violation of the material support

statute, 18 U.S.C. § 2339B, cannot be sustained until Hamas was designated a FTO . . . [and] to

the extent the RICO charge relies on a violation of Section 2339B as a predicate act, certain

evidence for that predicate act must post-date Hamas’ designation as a FTO.” (R. 442-1; Gov’t’s

Resp. to Salah’s Mot. to Dismiss at 6.) The government, therefore, cannot rely on a violation of

§ 2339B as a predicate act if the only conduct underlying the purported violation predates the

designation of Hamas as a Specially Designated Terrorist Organization or a FTO. The Court,

however, denies Salah’s request that it strike from the Indictment all references to predesignation conduct and to prohibit the government from relying on any such conduct where it is

not tied to Hamas’ designation as a Specially Designated Terrorist Organization or a FTO

because Salah has provided no legal justification for those broad requests. Indeed, even before

the United States designated Hamas as a FTO, it was illegal to agree to conduct the affairs of an

enterprise through a pattern of racketeering activity. 

C. Alleged Post-designation Racketeering Activities

Salah also argues that the Court should dismiss Count I because Individual A,3

purportedly the government’s sole source of information regarding Salah’s post-designation

conduct, is unreliable.4 Rule 12(b)(2) provides that “[a] party may raise by pretrial motion any

defense, objection, or request that the court can determine without a trial of the general issue.” 
12

Fed. R. Crim. P. 12(b)(2). “The sufficiency of a criminal indictment is determined from its

face.” United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). “[A]rguments raised in a

motion to dismiss that rely on disputed facts should be denied.” Caputo, 288 F. Supp. 2d at 916

(citing Shriver, 989 F.2d at 906). Salah’s credibility attack on Individual A is not a matter

appropriately resolved on a motion to dismiss. The credibility of a witness is left for the trier of

fact. See, e.g., United States v. Van Wyhe, 965 F.2d 528, 531 (7th Cir. 1992). Accordingly,

Count I of the Indictment stands.

CONCLUSION

For the reasons stated above, the Court denies Salah’s motion to dismiss Count I of the

Indictment.

Dated: April 4, 2006 ENTERED:

_________________________________

AMY J. ST. EVE

United States District Court Judge