I. INTRODUCTION

Iraq invaded Kuwait on August 2nd, 1990(Footnote(F) See Ramsey Clark, Fire & Ice, in CHALLENGE TO GENOCIDE: LET IRAQ LIVE 3, 8 (International Action Center, 1998)) . The United States, in conjunction with the United Nations Security Council, imposed sanctions against Iraq on August 6th, 1990. On January 16th, 1991, U.S. troops along with a coalition of U.N. forces started a bombing campaign against Iraqi troops from Kuwait. In a period of six weeks, U.S. air power systematically destroyed Iraq's infrastructure - including its vital life support systems, such as water and food processing plants which included such structures as baby milk powder producing plants and civilian hospitals. By the end of the war, "110,000 aircrafts sorties had dropped 88,500 tons of bombs on Iraq, the equivalent of seven and a half atomic bombs of the size that incinerated Hiroshima." In all, twenty-eight civilian hospitals, fifty-two community health centers, six-hundred -seventy-six schools, twenty-five mosques and three churches were hit. Along with the toll on the infrastructure, the war came at the price of 150,000 Iraqi and 148 U.S. lives.

After expelling Saddam Hussein's military forces from Kuwait, the U.S. maintained military troops in the Persian Gulf and continued to routinely bomb Iraqi targets. Along with this military action, the United States continued its imposition of sanctions against the Iraqi people. These sanctions have had a devastating impact on the Iraqi civilian population.

II. FACTUAL BACKGROUND

A. The Charges

Dr. Rafil Dhafir, a naturalized United States citizen of Iraqi ancestry, is a 56 year old physician who specializes in oncology. He ran a private medical practice in Rome, New York. He has been married to his wife, Priscilla for over 30 years.

Throughout his adult life, Dr. Dhafir has devoted substantial time, effort and resources to charitable organizations, principally the Help the Needy or Help the Needy Endowment, Inc. Initially, Help the Needy's mission was to provide food, medical supplies and other humanitarian aid for the children of Iraq affected by the United States sanctions. Dr. Dhafir's long standing charitable works, character and background have been greatly detailed in prior Notices to the Court and will not be repeated here.

After Iraq invaded Kuwait in August of 1990, former President George Bush under the International Emergency Economic Powers Act (IEEPA) declared a national emergency and issued emergency executive orders that brought about the sanctions in question. The indictment herein accuses Dr. Dhafir of violating IEEPA and related charges. In an effort to alleviate the suffering brought about by the sanctions, Dr. Dhafir, through Help the Needy, provided humanitarian aid to the people of Iraq. It is our contention that he has been targeted for prosecution because he is a Muslim Arab American and that because of the Government's initial belief that he was involved in terrorism (see the manner in which he was arrested) and having found no evidence to support their belief, the Government came up with numerous other charges in an effort to legitimize its arrest of Dr. Dhafir.

B. The Iraq Sanctions, Regulations & Civil Penalties

The Regulations broadly prohibit all trade, transportation and financial transactions with Iraq by any United States person to the Government of Iraq or any person in Iraq.

The Regulations provide for civil as well as criminal penalties. Section 575.701(a)(1) states that "[a] civil penalty not to exceed $275,000 per violation may be imposed on any person who, after the enactment of this Act, violates or evades or attempts to violate or evade Executive Order Number 12722, 12723, 12724, or 12725, or any license, order or regulation issued under any such Executive Order[.]"

C. Principle of Federal Prosecution to Pursue Alternative Avenues to Criminal Prosecution

The Department of Justice's policies are articulated in its "Principles of Federal Prosecution." These Principles were written to assure regularity and to prevent unwarranted disparity without sacrificing necessary flexibility . The Justice Department instructs its attorneys to commence prosecutions when they believe a federal offense has been committed and the evidence is sufficient to convict, unless: (1) a non substantial federal interest exists, or (2) there are adequate non-criminal alternatives to prosecution. In deciding whether adequate non-criminal alternatives to prosecution exist, a prosecutor should "consider all relevant facts, including: (1) [t]he sanctions available under the alternative means of disposition; (2) [t]he likelihood that an effective sanction will be imposed; and (3) [t]he effect of non-criminal disposition on [f]ederal law enforcement interests." The commentary to the Principles of Federal Prosecution notes:

When a person has committed a federal offense, it is important that the law respond promptly, fairly, and effectively. This does not mean, however, that a criminal prosecution must be initiated. In recognition of the fact that resort to the criminal process is not necessarily the only appropriate response to serious forms of antisocial activity, Congress and state legislatures have provided civil and administrative remedies for many types of conduct that may also be subject to criminal sanction… Although on some occasions they should be pursued in addition to the criminal law procedures, on other occasions they can expected to provide an effective substitute for criminal prosecution. In weighing the adequacy of such an alternative in a particular case, the prosecutor should consider the nature and severity of the sanctions that could be imposed, the likelihood that an adequate sanction would in fact be imposed, and the effect of such a non-criminal disposition on federal law enforcement interests.

As set forth more fully below, the government has chosen non-criminal alternatives, by way of either warnings or civil penalties, as an effective alternative to criminal prosecution in almost all cases where the sanctions have been violated by European-Americans and corporations. Non-criminal dispositions however have generally not been available to Muslims and Middle-Eastern defendants charged with violating these same federal laws.

III. MEMORANDUM OF LAW

A. Argument

A claim of selective prosecution is premised upon a finding that the decision to prosecute an accused for violation of a penal statue was based upon the accused's race, religion or other impermissible or arbitrary classification. The Supreme Court established more than 100 years ago in Yick Wo v. Hopkins, 118 U.S. 356 (1886), that discriminatory application of a valid law to similarly situated persons is an unconstitutional denial of equal protection.

A selective prosecution claim may be advanced by a defendant who can establish the following two essential elements. First, that the defendant has been singled out for and charged while others similarly situated have not been prosecuted. Second, that there exists some evidence of improper motivation in deciding to prosecute. United States v. Armstrong, 517 U.S. 456 (1996).

The first prong is established, not so much as by a showing that inordinate numbers of persons of the same racial group have been prosecuted under a particular statute, but rather that "similarly situated individuals of a different race were not prosecuted." Armstrong at 465. Moreover, said claims should be judged "according to ordinary equal protection standards." Wayte v. United States, 470 U.S. 598, at 608. (See also, United States v. Bourgeous, 964 F. 2d 935 (9th Cir. 1992).)

In United States v. Berrios, 501 F. 2d 1207, 1211 (2d Cir 1974), the Court described the second prong as requiring a showing that "the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion or the desire to prevent his exercise of constitutional rights."

While prosecutorial discretion is broad and there exists a strong presumption that prosecutors have properly discharged their duties, this discretion is bound by constitutional constraints, which forbids a decision to prosecute from being based on "an unjustifiable standard such as race, religion, or other arbitrary classifications." Oyler v. Boles, 368 U.S. 448, 456 (1962). Indeed, "[n]othing can corrode respect for a rule of law more than the knowledge that the government looks beyond the law itself to arbitrary considerations, such as race, religion, or control over the defendant's exercise of his constitutional rights, as the basis for determining its applicability." Id. at 456.

B. Rafil Dhafir Is Being Prosecuted While Others Violating the Same Laws Generally Face Civil Actions or No Prosecution At All

Ample evidence exists showing that Rafil Dhafir is being prosecuted while other "similarly situated individuals of a different race were not prosecuted." Armstrong at 465. While the regulations prohibit humanitarian aid to Iraq, the history of enforcement, or more properly the lack thereof, demonstrates that both non-Muslim Americans as well as corporations have not been prosecuted for violations of the same conduct. Moreover, no such prosecution exists, as is the case here, where the aid was predominantly in the form of food and other humanitarian aid.

While the government has prosecuted Muslims and individuals of other Middle Eastern origins for providing desperately needed goods and services to Iraq, corporations, individuals and other organizations who have openly defied the sanctions have faced either civil actions or no prosecution at all.

The following are examples of entities and/or individuals that have engaged in activities that violate the prohibition against providing various resources to the government of Iraq or any persons in Iraq. (It is noteworthy that while some have even provided resources to the Iraqi government itself, Dr. Dhafir's actions constituted purported violations by providing aid to "persons" of Iraq. Indeed the Doctor has opposed the denegation of Iraq society by the oppressive government the very sanctions were intended to punish.)

1. Individuals

On March 7th, 2003, The Post-Standard News (a Syracuse New York newspaper) published an article that described local residents who openly described their action in knowingly violating the Iraq sanctions. The article recounted statements attributed to two named individuals from Syracuse who purportedly traveled to Iraq in defiance of the sanctions. Likewise, another named individual who teaches at the State University College at Cortland admitted to donating to Iraqi's humanitarian efforts. Similarly, a Le Moyne College Professor is also named as having traveled to Iraq for humanitarian purposes.

The article also details a group of six "Syracusians" who purportedly collected medical and school supplies when they traveled to Iraq with a humanitarian group, "Conscience International," an Atlanta based anti-war group.

It is hard to phathom that the Department of Justice or the prosecutor's office here is unaware of these individuals or their actions. However, upon information and belief, none of them have been arrested or faced civil sanctions, it is significant to note that neither were any of the individuals Muslims and/or Arab.

2. Organizations
Voices in the Wilderness

Voices in the Wilderness (hereinafter VITW) is a Chicago-based organization that has sent repeated delegations to Iraq in open and blatant violation of the sanctions. While this humanitarian organization was first warned in 1996 by OFAC that it faced possible criminal and civil penalties, eight years later no criminal prosecution has ever been brought. Indeed, on June 4th, 2004, a hearing was held in the United States District Court, for the District of Columbia, before the Honorable John D. Bates, where the VITW continued to oppose payment of fines ($20,000) imposed as a civil sanction for their open and defiant continued violations of the statutory scheme.

3. Corporations

Fifty-seven Companies Violating Sanctions Regulations. As a result of a lawsuit filed against the Treasury Department by the Public Citizen Litigation Group, OFAC recently began listing names of corporate entities that have been caught violating the economic and trade sanctions against targeted foreign countries including Iraq. For example, on April 4th, 2003, OFAC for the first time released a chart listing 57 settlements by corporations charged with violating the sanctions.

OFAC's preference for settling or leveling fines on corporations rather than criminally prosecuting them, and its reluctance to provide this information to the public have not gone unnoticed by the community or the media. Reporting on the government's lenient treatment of corporations caught violating the trade sanctions, CBS.Marketwatch observed:

When individual Americans are accused of helping terrorists, they're thrown in jail and their names are dragged through the mud. But when major U.S. corporations are caught trading with the enemy, they get just a slap on the wrist from the government.

CBS.Marketwatch further detailed some of the violations listed by OFAC's April report including a fine against Chevron Texaco for business dealings with Iraq and Cuba:

ExxonMobil was fined $50,000 for exports to Sudan. ChevronTexaco was fined a total of $14,071.07 for deals with Cuba and Iraq. A company spokesman told the Corporate Crime Reporter that the company brought oil from Iraq under the U.N. Oil for Food program and that a payment was inadvertently paid to an Iraqi government port official. Axon Corp. of Raleigh, N.C., was fined $45,000 for exports to Iran. The company makes packaging company. Fleet Bank was fined $41,000 for financial dealings with Cuba and Iran. ESPN was fined $39,000 for a contract with Cuba…Royal Crown was fined $38,000 for exports to Sudan.

The government's general, if not exclusive; response to these violations has been civil dispositions, not criminal. See, e.g., Koller Decl., Ex. ___ (OFAC penalty notice letter explaining decision to impose $10,000 fine because "while some relief is warranted to take into account the fact that the instant violation was your first offense on record at OFAC, such relief must be balanced against aggravating factors present, specifically your willful violation of the Regulations."); Ex. ___ (VITW website newsletter noting that OFAC's pre-penalty notice letter outlining proposed civil penalty not followed up for over three years later with another pre-penalty notice after VITW reaffirmed to OFAC, local assistant U.S. Attorney and Justice Department that it would continue to violate laws). In addition, American corporations continued to conduct business in Iraq with only the threat of civil penalties as the cost of doing business. See e.g., Koller Decl., Exs. ___. And as evidenced by the OFAC's own website, none of the executives of those corporations were individually punished.

IV. DISCOVERY AND AN EVIDENTIARY HEARING IS WARRANTED

Although we believe that it is abundantly clear that Dr. Dhafir' has indeed been targeted for prosecution because of the aforementioned reasons, if the Court should conclude however that dismissal is not warranted at this juncture, defendant should be entitled to discovery and an evidentiary hearing to further support his claim of selective prosecution. Rafil Dhafir's claim of discriminatory prosecution is supported by "some evidence tending to show the existence of the essential elements of the defense." Armstrong, 517 U.S. at 468-70.

Defendant asserts that discovery will establish that other similarly situated non-Muslims and corporations have not been criminally prosecuted under the IEEPA regulations. Moreover, those individuals and or entities have faced civil penalties. It is simply in contiguous that non-Muslim individuals face civil sanctions while Doctor Dhafir remains in detention awaiting trial. Rafil Dhafir's detention status further highlights the selectivity readily apparent in this prosecution and the blatant disparate treatment of him. Defendant asserts that the discriminatory purpose and effect of this prosecution, if not already established, will be sufficiently demonstrated once he is permitted to further inquire as to similar prosecutions or more properly non-prosecutions of the type represented by this prosecution.

Dr. Dhafir has set forth credible evidence that the government singled him out for prosecution because of his race, religion and cultural background. Dr. Dhafir is entitled to the additional information to prove this prosecution is an egregious violation of his due process and equal protection rights.

V. CONCLUSION

Dr. Dhafir submits that he has been subjected to the discriminatory selective prosecution in violation of due process and equal protection and accordingly he respectfully requests that the Court grant the instant motion to dismiss and unconditionally release him. Alternatively, Dr. Dhafir has made a sufficient showing to entitle him to discovery and an evidentiary hearing.

DATED this 29th day of July, 2004.

To read the reply to the Governments Response