An important criminal charge is conspicuously absent in the Indictment of Abdirahman Sheik Mohamud, who is reportedly “the first American accused of returning from Syria with directions to attack inside the United States.” Earlier this month, a federal grand jury in the Southern District of Ohio accepted all three charges submitted by the government:
- one count of attempting to provide and providing material support to terrorists (18 U.S.C. § 2339A);
- one count of attempting to provide and providing material support to a designated foreign terrorist organization (Jabhat al-Nusrah) 18 U.S.C. § 2339B); and
- one count of making false statements to the FBI (18 U.S.C. § 1001(a)(2))
The answer: Using or Carrying Firearms During Crimes of Violence under 18 U.S.C. § 924(c)(1).
That offense comes with a five-year minimum imprisonment for “any person who, during and in relation to any crime of violence” carries a firearm, and a thirty-year minimum if the firearm is a “machinegun.”
Remarkably, the Indictment states that a key piece of evidence is a video in which Mohamud “carried an AK-47 and commented that he had his AK with him.”
How unusual then is the omission? Very.
One would have thought the offense would be foremost in the minds of the US attorneys. Just think back to the post-9/11 landmark indictment of the so-called “American Taliban,” John Walker Lindh. He was charged under 924(c)(1), in part, for carrying an AKM rifle, which helped seal his fate. Or consider the highly salient case of Ahmed Abdulkadir Warsame, the member of al-Shabaab in Somalia and liaison with al-Qaeda’s branch in Yemen (AQAP). The government charged Warsame under 18 U.S.C.§ 924(c)(1) for carrying an AK-47. Those are not isolated cases. Consider also the Indictment of Minh Quang Pham charged under 18 U.S.C.§ 924(c)(1) for carrying a Kalashnikov rifle in furtherance of his association with AQAP.
The similarities of those cases to Mohamud’s are even greater. In the Lindh, Warsame, and Pham cases, the charge of possession of a machine gun relied on the statutory predicate of material support to a foreign terrorist organization. That’s of course the very same statutory offense with which the government has charged Mohamud.
How important is the omission? Potentially very.
The fact that the offense carries a minimum 30-year sentence can work magic for the government. A Justice Department Manual highly recommends charging such offenses “aggressively” as they are “generally simple and quick to prove”:
Firearms violations should be aggressively used in prosecuting violent crime. They are generally simple and quick to prove. The mandatory and enhanced punishments for many firearms violations can be used as leverage to gain plea bargaining and cooperation from offenders.
That last sentence is important too, because one would expect the charge to be in the initial Indictment so that the government could then explain to Mohamud that his failure to cooperate could lead to a mandatory minimum of 30 years in prison without the judge being able to alter that result or could incur a sentence of life in prison. Thirty years in prison is more time than Mohamud has lived on this earth. He is currently 23 years old.
In the case of Warsame, it is safe to presume that the firearms charge helped lead to his successful cooperation agreement—a result that was lauded by the government and human rights NGOs alike. The Justice Department stated that Warsame’s cooperation “significantly furthered our ability to find, fight and apprehend those who wish to do us harm.” And in response to the news of Warsame’s guilty plea, Human Rights First stated: “This is a good example of how the U.S. military and law enforcement can work together to both gain intelligence and bring to justice someone accused of participating in terrorist plots against the United States.”
Securing a guilty plea from Mohamud could also save the government and court system time and other resources. The New York Times’s Scott Shane reports that Mohamud’s lawyers “said he had been in negotiations with prosecutors for several weeks about a possible plea deal, but that no agreement was reached and the federal indictment resulted.”
So, why was Mohamud charged neither with carrying a firearm nor carrying a machine gun? Does the Sixth Circuit case law have some surprise that makes the § 924 charge impossible? If not, we should be curious to know the reason for the government’s missing charge.