CRIMINAL ACTION NO. 03-CR-64 (NAM)

UNITED STATES OF AMERICA,

Plaintiff,

v.

RAFIL DHAFIR,

Defendant.

REPLY TO GOVERNMENT'S ANSWER
TO THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT

Dated: August 30th, 2004

The cornerstone of the Government's Response to Dr. Dhafir's Motion to Dismiss the Indictment herein on the grounds of Selective Prosecution is that Dr. Dhafir is not "similarly situated" to those cited in his moving papers. The Government argues that unlike Dr. Dhafir, these individuals and/or entities were not engaged in other offenses in which Dr. Dhafir is charged. It distinguishes Dr. Dhafir's case from the ones cited by arguing that the indictment herein charges Dr. Dhafir with offenses that go beyond an IEEPA violation. Therefore, it is their contention that these individuals and/or entities are not "similarly situated" to Dr. Dhafir because they have not committed or have not been charged with additional charges like those leveled against Dr. Dhafir.

The key question here is: How do they know that these individuals and/or entities have not engaged in other offenses? The fact of the matter is that none of them have been investigated. They have not been charged with any criminality, not even an IEEPA violation. The Government has not scrutinized their conduct in any way. Their argument can, at best, be described as bogus. Certainly we are not asserting that these individuals and/or entities have committed any criminal offenses. We are simply saying that the Government cannot claim that Dr. Dhafir is not "similarly situated" to these individuals and/or entities when it has not looked into the practices and activities of them. Moreover, the Government's claim that its initial focus on Dr. Dhafir centered on theft or misuse of the charitable organization's funds is not supported by the initial indictment in this case. It did not contain any charges that suggest theft or misuse of funds. These charges came much later on and came only in an attempt to legitimatize Dr. Dhafir's arrest.

Hopefully, the Government is mindful that these are merely their allegations and that at some point they will have to prove them beyond a reasonable doubt. Again, it is our contention that these "Johnny-come-lately" charges were brought in an effort to legitimatize Dr. Dhafir's arrest.

In their attempt to distinguish the conduct of those who were cited from Dr. Dhafir's, the Government characterized them as being "less serious violators". This characterization caused us to take a closer look at the language in the statute; clearly the Government has created a new standard to suit its purpose here. There is absolutely nothing in the statute that allows for the non-prosecution of "less serious violators". In fact, there is no provision in the statute that qualifies or quantifies a violation. Either you have violated the statute or you have not. There isn't a provision for a "less serious violator", serious violator or more serious violator. The Government's statement here is akin to the one of "being a little pregnant". Either you are or you are not. Moreover, the Government's statements do not square with those attributed to one of its representatives in a recent interview in The New Standard, dated August 18th, 2004. In response to a question about not prosecuting members of Voices in the Wilderness, a Government official said that no Voices in the Wilderness members lived in its jurisdiction. That statement clearly indicates that if a member or members of Voices in the Wilderness lived within the Northern District of New York and had violated the statute, that individual would be prosecuted. This statement in no way makes allowances for a qualification or quantification of the violation. The Government official, who is a member of the prosecution team, simply indicated that there was no prosecution because none of the members live within its jurisdiction. (This statement is inaccurate. There are several members of Voices in the Wilderness who live in the Central New York area who have boasted about their trip to Iraq.) In its motion papers, the Government views the members of Voices in the Wilderness as "less serious violators" and cited that as its reason for not prosecuting them. The Government has argued throughout that it has no knowledge of any other offenses committed by any of the individuals and/or entities cited. It appears that they have chosen to simply ignore Voices in the Wilderness'. Either the Government has ignored this fact or they do not view such conduct as a crime.

In the aforementioned interview, the other Government prosecutor noted another qualification that does not appear anywhere in the statue. He claimed that "sending money is a more serious crime than sending relief". He went on to explain that "you cannot convert a pallet of penicillin into anything else." This notion is consistent with the position articulated in their response. There they noted that the "prohibition of money transfers is more urgent that the prohibition or unlicensed humanitarian assistance because money unlike penicillin or bandages can easily be diverted to other non-humanitarian uses after it enters into Iraq". In the case of the 56 U.S. Corporations that we cited, they all dealt with cash in Iraq. They were not prosecuted. There was no need to convert anything. This was good ole United States currency going straight to the Regime. The Government chose not to respond to our contentions involving these Corporations. They have also chose to ignore that the biggest source of "pocket money" for the Regime was the ill-fated United States/United Nations backed "Oil for Food Program". It seems as if every free press source in the world has done an expose about the sham of this program and how its proceeds have only gone to lace the pockets of UN officials and Saddam Hussein. But here, the government's sense of reality is that the alleged conduct of Dr. Dhafir sending aid to the needy in Iraq is "more serious" than these corporations. This argument defies common sense and logic. Clearly, it is being made because the Government does not have a more plausible one.

The circumstances or manner of Dr. Dhafir's actual arrest points out that he was treated more as a terrorist suspect than someone being charged with low level white collar offenses. At the time of his arrest, approximately 85 law enforcement officers descended upon his home. They knocked down his door and pointed a gun to the head of his wife. (It should be noted that it is not uncommon in cases with charges such as these for the Government to contact the attorney for an individual to arrange for his/her surrender.) After gaining entry into Dr. Dhafir's home, the agents went about the task of ransacking it. Another tell-tale sign as to the Government's "interest" is the books that they took from Dr. Dhafir's library. The ones that they took dealt with the Islamic faith or ideology. His collection on American History, the Bible, Golda Meier and the like were not touched. There is no legitimate argument that the Government can put forth that taking these particular books would assist them in their investigation or have any evidentiary value relating to the charges in the indictment.

The Government contends is that its investigation of Dr. Dhafir was for approximately four years. We have reason to believe that its investigation of Dr. Dhafir goes well beyond that period, specifically to 1990. We strongly suspect that his F.B.I. file will corroborate this. However, the advent of September 11th heightened their interest in Arabs in general and Dr. Dhafir in particular. Our contention is that his arrest and subsequent prosecution was not pulled out of thin air, but due to anti-Arab sentiments and post September 11th. We have reviewed a document wherein law enforcement interviewed another individual charged in this case and labeled their investigation as "terrorism" related. Given that individual's relationship to Dr. Dhafir, we believe that Dr. Dhafir's files or documents are also so labeled. We have requested Dr. Dhafir's files pertaining to certain interviews but have not yet received them.

At the time of Dr. Dhafir's arrest, the Government interrogated approximately 150 donors (practically all of them are Arabs and/or Muslims) of Help The Needy. Upon information and belief, this was not done in any other arrest involving a charitable organization. For example, when an executive of United Way was arrested, none of its donors were interrogated.

The Government stated that its arrest of Dr. Dhafir was on February 26th, 2003 was made at that time in part because the investigation had yielded as much as could be expected and in part because Dr. Dhafir was about to leave the United States for an extended trip to Saudi Arabia. It should be noted that at the time of Dr. Dhafir's arrest he had only obtained a visa to travel to Saudi Arabia. He had not obtained a ticket nor made any hotel arrangements. It appears that Dr. Dhafir's arrest was more linked to the United States invasion on Iraq as opposed to the items cited in the Government's papers.

The Government argues that the fact that it did not arrest and charge Mohammed Taha Ibrahim, a trustee of Help The Needy, who was traveling in Iraq on the day Dr. Dhafir was arrested with a sanction offense as an example that its arrest of Dr. Dhafir was not motivated by an Anti-Arab sentiment. Firstly to correct the record, either the Government does not know or refused to acknowledge it because of his last name. Mohammed Taha Ibrahim is not an Iraqi as stated in the Government's Response. He is an American. He was born in Logan, Utah on June 17th, 1964. The Government stated that Mohammed Taha Ibrahim was not arrested because there was no evidence that he had committed other offenses such as fraud. The Government's statement here buttress our claim that Dr. Dhafir is the victim of selective prosecution and has been charged with the indictment herein because of the Government's belief that he was sponsoring terrorism or supporting the Hussein Regime. Inasmuch as the Government did not have reason to believe that Mr. Ibrahim was involved in any fraud and it had decided not to arrest him for violating the Iraqi sanctions; then the fact that he and his family were detained for hours and their home searched and ransacked on the date of Dr. Dhafir's arrest was wholly unrelated to the investigation and indictment here. Given the Government's statement, the question then becomes why was Mr. Ibrahim, his family and their home subjected to this treatment? The only explanation for the Government treating Mr. Ibrahim this way is because of their post 9-11 anti-Arab sentiments. Mr. Ibrahim's treatment is consistent with their post 9-11 roundup of Arabs. According to their words, they had no intent on arresting him for any violations of the sanctions and to their knowledge he had not committed any other crimes. Their conduct here is otherwise unexplainable.

The Government states that our motion should be denied because it is not supported by Affidavits or statistical data. Given the fact that the Government is actually in possession of the information that is necessary for us to do a statistical analysis, we requested a discovery hearing in an effort to present to the Court such information for a claim. However, in an effort to provide the Court with such data, in the first instance we made several FOIL requests to OFAC to obtain the information or data necessary to support our claim. To date, we have not received any response whatsoever from OFAC. Inasmuch as the Government is in control of the information we seek and has refused to respond to our request, it cannot now argue that the Court should dismiss our motion because we failed to provide the very information that they have refused to give us.

Given the foregoing, it is clear that Dr. Rafil Dhafir has established by clear evidence that he has the victim of desperate treatment in that he has been treated differently from those "similarly situated" and his prosecution is a result of the Government's post 9-11 anti-Arab roundup.

Wherefore, we respectfully reiterate our request that the indictment herein be dismissed or in the alternative, a discovery hearing be ordered.