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United States District Court Southern District of New York ------X United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X UNITED STATES OF AMERICA, 02 CR 395 (JGK) V. AHMED ABDEL SATTAR, NOTICE OF MOTION MOHAMMED YOUSRY and LYNNE STEWART, Defendants. ------------------------------------------------------------X LYNNE STEWART’S NOTICE OF OMNIBUS MOTION TO DISMISS THE INDICTMENT AND FOR OTHER RELIEF Michael E. Tigar Attorney for Lynne Stewart Of Counsel The Tigar Law Firm 1025 Connecticut Ave., N.W. Suite 1012 Washington, D.C. 20036 (202) 467-8583 Facsimile (410) 573-2500 Jane B. Tigar, Tigar Law Firm Steven P. Ragland, of counsel, Tigar Law Firm UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X UNITED STATES OF AMERICA, 02 CR 395 (JGK) V. AHMED ABDEL SATTAR, NOTICE OF MOTION MOHAMMED YOUSRY and LYNNE STEWART, Defendants. ------------------------------------------------------------X PLEASE TAKE NOTICE that upon the annexed affirmation of Michael E. Tigar, the annexed affirmation of Steven P. Ragland, the MEMORANDUM IN SUPPORT OF LYNNE STEWART’S OMNIBUS MOTION TO DISMISS THE INDICTMENT AND FOR OTHER RELIEF, filed herewith, and all pleadings and proceedings herein, the undersigned will move this Court at the United States Courthouse, 500 Pearl Street, New York, New York 10007, for an order: 1. Dismissing all counts of the Indictment on the ground that the underlying statutes and regulations are unconstitutional on their face and as applied, representing an attack on freedom of expression and the right to counsel; 2. Dismissing each count of the Indictment for failure to state an offense against the United States within the meaning of FED. R. CRIM. P 7(c)(1) and the Sixth Amendment; 3. Ordering an evidentiary hearing on the legality of designating IG as a foreign terrorist organization, and directing that if the Court rejects the administrative determination, Counts I and II will be dismissed, and if the Court sustains the administrative 1 determination, the issue will be tried to the petit jury should the case proceed to trial, such hearing being required by due process of law and the jury trial guaranty; 4. In order to make possible the relief in the preceding paragraph, ordering production of the entire administrative record concerning designation of IG as a terrorist organization; 5. Ordering an evidentiary hearing on the legality of the Special Administrative Measure (“SAMs”) at issue in this case, and directing that if the Court rejects the administrative determination, Counts IV and V will be dismissed and if the Court sustains the administrative determination, the issue will be tried to the petit jury should the case proceed to trial, such hearing being required by the due process clause and the jury trial guaranty; 6. In order to make possible the relief in the preceding paragraph, ordering production of the entire administrative record concerning all relevant SAMs; 7. In the alternative to dismissal of the indictment, and as a means of assessing the legality of any count not dismissed as prayed above, ordering a bill of particulars, as set forth in the annexed memorandum of law; 8. In the alternative, as to any counts not dismissed, ordering a severance and separate trial for Lynne Stewart, pursuant to FED. R. CRIM. P. 8(b) and 14, and Bruton v. United States, 391 U.S. 123 (1968), and in order to determine that motion, requiring the government to produce for inspection all statements of any defendant that it intends to use at trial; 2 9. Suppressing the fruits of all searches done under the purported authority of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et. seq., and setting an evidentiary hearing on that issue; 10. For such other relief as may be proper. We ask for a setting for oral argument on the legal issues, with a later setting for the requested evidentiary hearing as to any counts not dismissed on the law. Counsel are also filing this day a motion to dismiss based on the government’s failure to honor an agreement made with Lynne Stewart concerning her conduct as counsel for Sheikh Abdel Rahman. Counsel will at a later time file motions that require analysis of the massive discovery in this case, and that address the government’s failures to make pertinent discovery. Such motions will include discovery, suppression of evidence other than as noted above, and other matters that cannot now be addressed due to the state of proceedings. We are not filing a motion to strike surplusage at this time, for that motion must await rulings on the other motions and analysis of the discovery and other factual materials. The Indictment suffers from prolixity and rhetorical excess, and we will address those issues at the appropriate time. 3 Dated: Washington, D.C. January 10, 2003 Respectfully submitted: ________________________ Michael E. Tigar Attorney for Lynne Stewart Of Counsel, The Tigar Law Firm 1025 Connecticut Ave., N.W. Suite 1012 Washington, D.C. 20036 (202) 467-8583 Facsimile (410) 573-2500 Of Counsel: Jane B. Tigar, Tigar Law Firm Steven P. Ragland, of counsel, Tigar Law Firm We acknowledge with thanks the assistance of the following law students: Stela Maria Chincisan (Columbia); Jennifer Laurin (Columbia), Erin Gerstenzang (Emory), Brittany Benowitz (American), Daniel Habib (American), Joanna Hall (American), and Tina Karkera (American). 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X UNITED STATES OF AMERICA, 02 CR 395 (JGK) V. AHMED ABDEL SATTAR, AFFIRMATION MOHAMMED YOUSRY and LYNNE STEWART, Defendants. ------------------------------------------------------------X AFFIRMATION OF MICHAEL E. TIGAR Michael E. Tigar declares under penalty of perjury: 1. I am counsel to Lynne Stewart. I make this declaration in support of Lynne Stewart’s Omnibus Motion to Dismiss The Indictment And For Other Relief. 2. I hereby certify that all statements in the Motion to Dismiss and its accompanying Memorandum of Law that are not otherwise supported by cited authority are true and correct within my personal knowledge and belief. 3. The exhibit attached to our moving papers is a copy of material provided to us by the government. Dated: Washington, D.C. January 10, 2003 ________________________ Michael E. Tigar UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X UNITED STATES OF AMERICA, 02 CR 395 (JGK) V. AHMED ABDEL SATTAR, AFFIRMATION MOHAMMED YOUSRY and LYNNE STEWART, Defendants. ------------------------------------------------------------X LOCAL CRIMINAL RULE 16.1 AFFIRMATION OF CONFERENCE OF COUNSEL Steven P. Ragland declares under penalty of perjury: 1. I am counsel to Lynne Stewart. I make this declaration pursuant to Local Criminal Rule 16.1, and in support of Lynne Stewart’s request for a bill of particulars in her Omnibus Motion to Dismiss The Indictment And For Other Relief. 2. I hereby certify that on Tuesday, December 31, 2002, I contacted Assistant United States Attorney Christopher J. Morvillo via facsimile letter in an effort in good faith to resolve by agreement the bill of particulars issue raised in the Omnibus Motion without the intervention of the Court. 3. On Tuesday, January 7, 2003, Mr. Morvillo informed us by letter that the government will not voluntarily provide any of the particulars we seek. 4. We, therefore, have been unable to reach such an agreement. Dated: Washington, D.C. January 10, 2003 ________________________ Steven P. Ragland CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the attached Notice of Omnibus Motion to Dismiss the Indictment and for Other Relief, and the related Affirmations was delivered on January 10, 2003, BY HAND DELIVERY to: Christopher J. Morvillo Joseph F. Bianco Assistant United States Attorneys U.S. Department of Justice U.S. Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 Attorneys for the United States BY FIRST CLASS MAIL to: Barry Fallick Rochman Platzer Fallick & Sternheim, LLP 666 Third Avenue New York, New York 10017 Attorney for Ahmed Abdel Sattar Kenneth A. Paul 319 Broadway, Suite 500 New York, New York 10007 Attorney for Ahmed Abdel Sattar David Ruhnke Ruhnke & Barrett 47 Park Street Montclair, New Jersey 07042 Attorney for Mohammed Yousry David Stern Rothman, Schneider, Soloway & Stern 70 Lafayette Street New York, New York 10013 Attorney for Mohammed Yousry ______________________________ STEVEN P. RAGLAND UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X UNITED STATES OF AMERICA, 02 CR 395 (JGK) V. AHMED ABDEL SATTAR, MOHAMMED YOUSRY and LYNNE STEWART, Defendants. ------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF LYNNE STEWART’S OMNIBUS MOTION TO DISMISS THE INDICTMENT AND FOR OTHER RELIEF Michael E. Tigar Attorney for Lynne Stewart Of Counsel The Tigar Law Firm 1025 Connecticut Ave., N.W. Suite 1012 Washington, D.C. 20036 (202) 467-8583 Facsimile (410) 573-2500 Jane B. Tigar, Tigar Law Firm Steven P. Ragland, of counsel, Tigar Law Firm TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................ iv INTRODUCTION ................................................................................................................ 1 I. BACKGROUND ...............................................................................................
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