CREDIT INTELWIRE.COM FOR THIS DOCUMENT Case: 1:09-cr-00830 Document #: 297 Filed: 07/20/11 Page 1 of 13 PageID #:1815 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA ) ) No. 09 CR 830 ) v. ) Judge Harry D. Leinenweber ) ) UNDER SEAL TAHAWWUR HUSSAIN RANA ) GOVERNMENT’S MEMORANDUM IN OPPOSITION TO DEFENDANT RANA’S UNDER SEAL MOTION TO SUPPRESS EVIDENCE The United States of America, by and through its attorney, Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, respectfully submits this Memorandum in Opposition to Defendant Rana’s Under Seal Motion to Suppress Evidence. I. Background The defendant moves to suppress the results of three search warrants, arguing that the affiant omitted material information from the affidavit submitted in support of the application for such warrants. More specifically, the defendant points to the fact David Headley, when arrested, first stated that Rana was not witting of his criminal activities and then later refused to answer any questions about Rana (as well as Headley’s wife), noting that Rana was his “only friend.” Considering the substantial volume of information in the affidavit that established probable cause to believe that evidence would be recovered at the three physical addresses, the omission of this information was not material. Even had the statements, and refusals to make statements, about Rana had been included in the affidavit, probable cause to believe that evidence existed at these locations still existed. For this reason, the Court should deny defendant’s motion without a hearing. 1 CREDIT INTELWIRE.COM FOR THIS DOCUMENT Case: 1:09-cr-00830 Document #: 297 Filed: 07/20/11 Page 2 of 13 PageID #:1816 A. The Government Obtained Two Sets of Search Warrants On October 2, 2009, the government sought five search warrants based on a single affidavit for the following locations: • 09 M 479: Rana’s business (the business identified as the Immigrant Law Center, located at 2809 W. Devon, Chicago, Illinois) • 09 M 480: Headley’s luggage • 09 M 481: Rana’s residence Illinois) • 09 M 482: Rana’s farm property (the farm property located at 6260 S. Kinsman Road, Kinsman, Illinois) • 09 M 483: Headley’s residence (the apartment located at llinois) The 65-page affidavit submitted in support of the applications for these search warrants outlined a substantial amount of evidence, including intercepted emails, recorded telephone conversations, recorded in-person conversations, public records, information from a Customs and Border Patrol inspector, phone records, physical surveillance, records reflecting the location of internet protocol addresses, subscriber records and information from other sources. Based on this information, Magistrate Judge Keys determined that there was probable cause to believe that evidence of federal crimes would be found at the addresses and issued the search warrants. Attached hereto as Exhibit A is a copy of the affidavit submitted on October 2, 2009. The following day, on October 3, 2009, federal agents arrested David Headley at O’Hare airport, where he was to board a flight to Philadelphia with the ultimate destination being Pakistan. 2 CREDIT INTELWIRE.COM FOR THIS DOCUMENT Case: 1:09-cr-00830 Document #: 297 Filed: 07/20/11 Page 3 of 13 PageID #:1817 After his arrest, Headley agreed to be interviewed by FBI agents.1 Because Headley had agreed to be interviewed and because this interview lasted a number of days, the government did not execute the search warrants for the physical addresses. Instead, the government executed only the search warrant on Headley’s luggage. Found in Headley’s luggage, among other pieces of evidence, was a memory stick containing surveillance videos taken in Copenhagen, Denmark. Anticipating the expiration of the unexecuted search warrants, on October 9, 2009, the government again sought search warrants for four of the five above-identified premises (all but Headley’s luggage). The information provided in the applications on October 9, 2009, was substantially similar to that information submitted in support of the October 2, 2009 applications, except that information relating to what was found in Headley’s luggage and approximately six paragraphs summarizing information by Headley were added. Attached hereto as Exhibit B is a copy of the single affidavit submitted in support of the October 9, 2009 applications. On October 18, 2009, federal agents arrested the defendant and executed the search warrants at the four physical addresses. The defendant now moves to suppress evidence obtained during the execution of three of these search warrants, those for his residence, his business and his farm. B. Evidence in the Affidavit As mentioned, the 75-page affidavit submitted in support of the request for search warrants contained information from a variety of sources, but mainly described intercepted emails and recorded conversations that established probable cause to believe that Headley and others participated in a conspiracy to commit terrorist attacks involving murder, kidnaping and maiming 1 Having obtained the search warrants prior to Headley’s arrest, the affidavit submitted in support of the October 2, 2009 applications for search warrants, of course, included no information provided by Headley. 3 CREDIT INTELWIRE.COM FOR THIS DOCUMENT Case: 1:09-cr-00830 Document #: 297 Filed: 07/20/11 Page 4 of 13 PageID #:1818 outside the United States, including Mumbai, India and Copenhagen, Denmark, and that defendant Rana conspired to provide material support to that conspiracy. In summary,2 emails exchanged between Headley and co-defendant Abdur Rehman Hashim Syed (“Pasha”) in late 2008 and early 2009 revealed that Headley intended to travel to Copenhagen in January 2009 in order to conduct surveillance and “get a feel for the property.” (Ex. B, ¶59) An intercepted email also demonstrated that Headley had typed a list of items to prepare for this trip, which was titled “Mickey Mouse” and contained multiple entries that were consistent with his task to perform surveillance. (Id. ¶51) During the email exchanges, Headley and Pasha discussed Rana and, in particular, Headley expressed his readiness for “MMP” (the Mickey Mouse Project), but indicated that he needed to consult with Rana before he traveled. (Id. ¶59) Subsequent email correspondence revealed that Rana arranged for Headley’s travel to Denmark. (Id. ¶61) Headley Requests Rana’s Assistance During his First Reconnaissance Trip to Copenhagen Additional email correspondence demonstrated that Headley, in fact, traveled to Copenhagen in January 2009 and visited two locations of the Jyllands Posten newspaper, which had published cartoons depicting the Prophet Mohammed in 2005 and toward whom Headley had expressed a disposition for violence in a forum for alumni of a Pakistani school where both Headley and Rana had attended. (Id. ¶¶48-50, 60-67) Email correspondence established that Headley had gained entry to the newspaper facilities by falsely representing himself to be a representative of Rana’s business. Headley, in fact, informed Rana by email that he had provided a card identifying himself as a representative of Rana’s business and, based on a concern that the newspaper would contact other 2 The government adopts as though stated herein the allegations of the affidavit submitted in support of the application for search warrants. Due to the volume of information therein, this Response provides only a summary. 4 CREDIT INTELWIRE.COM FOR THIS DOCUMENT Case: 1:09-cr-00830 Document #: 297 Filed: 07/20/11 Page 5 of 13 PageID #:1819 offices listed on such card, Headley asked Rana to ask the other offices to “remember” him such that his cover was not blown. (Id. ¶¶62-64) When the newspaper emailed Headley following his visit, Rana falsely posed as David Headley and sent a reply email. (Id. ¶67) The affidavit cited a number of facts (established through several sources) that demonstrated it was implausible that Headley was visiting the newspapers for business reasons. (Id. ¶69) Rana’s Creation of Coded Account The affidavit further outlined, based on email correspondence and subscriber records, that Rana passed a coded message to Headley in March 2009, stating: One of my brothers in Brigadier Movadat Hussain Rana and the other is Sibte Hassan Rana monie. They are in Rawalpindi. I really admire emails making it instant half mulaquat especially yahoo as it seems superior to hotmail. Talk to you later. (Id. ¶73)(emphasis supplied). Subscriber records revealed that the mov.monie@yahoo account was created on or about March 6, 2009, at a particular internet protocol address, the user of which was located at the business address of Rana’s business, First World Immigration. The subscriber name provided when this account was opened was “Mr Mov Monie” with a date of birth of February 13, 1962. RANA’s actual birthdate is exactly one digit off from the month, date and year provided to open the mov.monie@yahoo account. In a subsequent email, Headley asked Rana to contact Pasha, with whom Headley had been communicating extensively about the “Mickey Mouse Project.” (Id. ¶¶54-59, 75) When Headley later returned to Chicago, Rana once again arranged for his travel. (Id. ¶78) Concern Over Pasha’s Arrest Email correspondence later established that Pasha was arrested by Pakistani authorities in or around mid-July 2009. (Id. ¶79). In later email correspondence with Headley, an individual 5 CREDIT INTELWIRE.COM FOR THIS DOCUMENT Case: 1:09-cr-00830 Document #: 297 Filed: 07/20/11 Page 6 of 13 PageID #:1820 identified in the affidavit as Lashkar Member A (Sajid Mir) expressed concern over the arrest of Pasha and, more specifically, whether he was “singing or what.” (Id. ¶¶99-100). After Pasha’s release from custody, Headley and Pasha engaged in numerous recorded telephone conversations, as summarized below. Additionally, Rana spoke to Pasha in a recorded telephone call.