November 4, 2009 | CTR Vantage
The Indictment of Abdow Munye Abdow and the Application of “False Statements” Charges
By Daveed Gartenstein-Ross. Madeleine Gruen
On Oct. 13, 2009, a Minnesota grand jury indicted 26-year-old Abdow Munye Abdow on two counts of making false statements to FBI agents during the course of an investigation of international and domestic terrorism.1 Abdow, who is of Somali descent and came to the U.S. in 1995, was a resident of the Minneapolis- St. Paul area; his indictment is the latest legal development in the government's pursuit of al-Shabaab recruiting activity in the area.
Factual Background
According to the criminal complaint against him, on Oct. 6 Abdow was stopped by the Nevada Highway Patrol while in a rental car about ten miles north of Las Vegas.2 The car had four other occupants. All five men in the car told the state trooper who initiated the stop that they were heading to San Diego for a wedding. However, their explanations struck Trooper Alan Davidson as suspicious. He later told the local press that “they couldn't name whose wedding they were attending and that none of the passengers had any clothes appropriate for a wedding.”3
When state troopers ran three of the men's names through a federal database, the name of the driver-32-year-old Cabdulaahi Faarax-registered as a “possible active member of a terrorist watch list.”4 Faarax's inclusion on the list would only mean that he was being monitored; the officers conducting the stop did not know why he had been placed on the list, nor did it give them an independent reason to detain him. The troopers also learned that Abdow had an active missing person's report filed on him, as his wife had told the Culver County, Minnesota sheriff's office “that she hadn't seen her husband since the day before.”5
The troopers contacted the FBI, who “made the decision to let the men go.”6 A couple of days later, on Oct. 8, two of the car's passengers were identified by a Customs and Border Protection officer as being dropped off by a taxi cab at the U.S.-Mexico border's San Ysidro crossing south of San Diego.7 The same day, two FBI agents interviewed Abdow at his work back in the Twin Cities area, and informed him that the FBI was undertaking a terrorism investigation into missing Somali males.
In response to the agents' questions, Abdow initially said the only other person traveling to Las Vegas with him was a friend named “Adam,” and that they neither stopped anywhere nor encountered anyone else during the drive. As the interview continued, Abdow's story shifted:
ABDOW was then asked a second time if he had any passengers in his rental car. ABDOW told the agents that he had no one else in his rental car besides Adam. The interviewing agents then explained to ABDOW that it is a crime to make false statements to federal law enforcement agents. He was then asked a third time if there were any people in the rental car with him. ABDOW told agents he did not want to mention any names. ABDOW then said there were three additional individuals in the rental car, besides him and Adam. ABDOW identified three individuals by nicknames and said that he did not know any of these individuals' real names. ABDOW then told the agents “I am talking too much,” and told the agents that he did not know anything. ABDOW then denied that there were five people in the car, and said that there could have been two or four individuals in the car.8
Abdow also told the agents that he did not know who paid for the rental car, even though he had in fact done so with his credit card. When told the names of other occupants of the car, including Faarax, he replied that he did not know if they had been in the vehicle. Based on this set responses to agents' questions, Abdow was charged with making false statements to federal agents.
Though neither the criminal complaint nor indictment specify why Abdow's actions relate to ongoing investigations of terrorism in the Minneapolis-St. Paul area, they imply that his trip to Las Vegas was related to Shabaab's recruitment efforts. It is possible that the two men who crossed the border into Mexico after Abdow helped to transport them to the Las Vegas area did so as a first step toward Somalia. Such an interpretation would be supported not only by Abdow's proclamation that he was “talking too much,” but also his protestation that “whatever those guys are into I'm not.”9
Legal Background
The criminal statute 18 U.S.C. § 1001 prohibits making “materially false, fictitious, or fraudulent” statements or representations in a matter that is “within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” An individual who lies to FBI agents in the course of an investigation can be charged with violating this provision.
The fact that Abdow allegedly made false representations during the course of a terrorism investigation is significant: while false statements are usually punishable by up to five years imprisonment, the possible sentence is increased to eight years “if the offense involves international or domestic terrorism.”
The most significant defense to this provision is the “literal truth” defense, which was used successfully in the case of United States v. Subeh.10 In that case, defendant Muhamed Subeh was asked by an FBI agent if his brother Ismail Dorgham had any interest in becoming a suicide bomber; Subeh said that he could not answer the question. He was charged with making false statements, since he had in fact seen a martyrdom letter written by Dorgham.
Nonetheless, the district court found that Subeh was not guilty of lying to federal agents because his answer was the literal truth. The agents' question, the court noted, was “directed to Dorgham's state of mind, not Subeh's. Accordingly, Subeh's opinions or beliefs about Dorgham's intentions are immaterial, as such opinions and beliefs would reveal Subeh's state of mind, not Dorgham's.” The court noted that “because Subeh was not asked by investigators about his own opinion, but instead was asked about Dorgham's intentions, his statement that he could not answer a question about his brother's state of mind was not false, and indeed, was true.”
Use of False Statements Charges in Terrorism Cases
False statements charges can be used for various purposes in terrorism investigations. In Abdow's case, it appears authorities used the charge to detain him as the investigation proceeds: it gives them a legal hook to do so. Such charges were also used for similar purposes in the ongoing investigation of Najibullah Zazi and his associates.
There are two aspects to determining if a defendant can be detained pretrial. First, there has to be probable cause that a crime has occurred (i.e. false statements to federal authorities; although defendants will almost never be detained pretrial for this offense when there is not another, larger issue lurking in the background). Second, there is the separate question of whether detention is warranted, for which a court considers two factors: whether the defendant poses a danger to the community, and whether he should be considered a flight risk. The crime for which the defendant has been arrested is relevant to these questions, but the prosecution can present other evidence beyond the charge that has been brought: in the Abdow case, for example, it could present evidence linking him to broader concerns about a Shabaab recruiting network in the Twin Cities area. Abdow was released to a halfway house with conditions placed on him; the halfway house can help the government ensure that he does not flee.
Sometimes false statements charges are brought not because of concerns about pretrial detention, but simply because the prosecution wants to charge the defendant with the full range of offenses that he committed. Prosecutors have also used false statements charges in a manner that has been described as “pretextual prosecution”: that is, the underlying concern in the prosecution is the defendant's possible connection to terrorist activity, but he is charged with a different offense.11
Use in Other Minneapolis-St. Paul Area Cases
False statements charges were brought against three other individuals of Somali background in the Twin Cities area this year: Abdifatah Yusuf Isse, Salah Osman Ahmed, and Kamal Said Hassan. All three have pled guilty to providing material support to designated terrorist group al-Shabaab, based on their travel to Somalia to either train with or fight for the group.
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1Indictment, United States v. Abdow, CR09-292 (D. Minn., Oct. 13, 2009). return
2The factual background of Abdow's case can be found in Michael N. Cannizzaro Jr., Criminal Complaint, United States v. Abdow, CR09-292 (D. Minn., Oct. 9, 2009). return
3Antonio Planas, “Patrol Questions Watch List Suspect,” Las Vegas Review Journal, Oct. 16, 2009. return
5David Hanners, “Mystery Surrounds Twin Cities Somali Men's Traffic Stop in Nevada,” Pioneer Press (Minneapolis-St. Paul, Minn.), Oct. 16, 2009. return
6Planas, “Patrol Questions Watch List Suspect.” return
7Cannizzaro, Criminal Complaint, 4. return
102006 U.S. Dist. LEXIS 45514 (W.D.N.Y., July 5, 2006). return
11For a critique of pretextual prosecutions, see Daniel C. Richman & William J. Stuntz, “Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution,” Columbia Law Review, 2005. On this point, see also Daveed Gartenstein-Ross & Kyle Dabruzzi, The Convergence of Crime and Terror: Law Enforcement Opportunities and Perils (Manhattan Institute Policing Terrorism Report No. 1, June 2007). return