government’s memorandum in opposition to …

UNITED STATES DISTRICT COURTNORTHERN 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

Case: 1:09-cr-00830 Document #: 297 Filed: 07/20/11 of 13 PageID #:1815

CREDIT INTELWIRE.COM FOR THIS DOCUMENT

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. KinsmanRoad, 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



After his arrest, Headley agreed to be interviewed by FBI agents. Because Headley had agreed to1

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

Having obtained the search warrants prior to Headley’s arrest, the affidavit1

submitted in support of the October 2, 2009 applications for search warrants, of course, includedno information provided by Headley.

3



outside the United States, including Mumbai, India and Copenhagen, Denmark, and that defendant

Rana conspired to provide material support to that conspiracy. In summary, emails exchanged2

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

The government adopts as though stated herein the allegations of the affidavit2

submitted in support of the application for search warrants. Due to the volume of informationtherein, this Response provides only a summary.

4



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 HassanRana monie. They are in Rawalpindi. I really admire emails making it instant halfmulaquat 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



mailto:[email protected]

mailto:[email protected]

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. Using code,

Rana asked Pasha about his arrest: “okay, you remember when you had fever during that time did

you ever faint due to the fever?” Pasha responded, “no, no, no, no, no, no. Th-th-that all was fine,

there wasn’t any problem” (Id. ¶105)

Communications with Lashkar Member Sajid

The affidavit further described a series of email communications between Headley and

Lashkar Member A that occurred throughout July and August of 2009. In the coded exchanges,

Lashkar Member A indicated that he wanted to see Headley in order to discuss additional

surveillance activity in India. (Id. ¶¶80-92, 98-100). Further, the emails alluded to Headley’s

previous surveillance activity in Mumbai and reflected Headley’s questions about the “Northern

Project,” another codename for the planning of an attack in Copenhagen, which the emails had

revealed was postponed by Lashkar Member A. Among other statements referring to Headley’s

prior surveillance work in Mumbai, Headley asked “the visit to Rahul’s place [India], is it for

checking out real estate property like before.” (Id. ¶88)

Second Reconnaissance Trip to Copenhagen

The affidavit also described Headley’s second surveillance trip to Copenhagen. While in

Copenhagen, Headley took short videos of several locations in Copenhagen. When later arrested (in

October 2009), the government seized these videos from Headley’s luggage. (Id. ¶128) As before,

Rana made travel arrangements for Headley. Upon his return, Headley falsely told a Customs and

6



Border Inspector that he was a consultant for Rana’s business. (Id. ¶95)

As described in more detail in the complaint, throughout August and September, Headley and

Pasha spoke by phone and otherwise communicated about continued planning for an attack in

Denmark. They awaited word from Ilyas Kashmiri, with whom Headley and Pasha had discussed

the potential attack. Headley discussed options, including Option “B” (“I [Headley] can do it on my

own”) if communications with “doctor [Kashmiri] failed or if the “doctor” and his people were

otherwise unable to assist (“if they are not fulfilling on it”). (Id. ¶103) Further, on September 7,

2009, Headley and Pasha talked about whether Pasha had been able to convey certain information

to Kashmiri (Headley: “you need to tell him everything”). (Id., ¶107) That same day, Headley and

Rana discussed the same issue. Headley explained to Rana that “Pasha has not been able to pass on

the report to him [Kashmiri].” (Id. ¶109)

Rana and Headley Discuss “Targets”

In the same September 7, 2009 conversation between Rana and Headley, they discussed and

named multiple targets of their planning. Headley listed four targets, one of which was “Denmark.”

(Id. ¶110) Later in the conversation, Headley added a fifth target: “oh my friend, not four, five,

five.” (Id.) While Rana laughed, Headley stated “Defense College” twice, and Rana commented

“right, this is it. I knew already.” After other discussion, Rana continued “That one, uh, I thought

that was the target.” Although this conversation was mainly in Urdu, Rana used the English word

“target.” (Id.)

Rana and Headley Discuss News of Kashmiri

Later in September, there were press reports that Ilyas Kashmiri was killed in a drone attack.

On September 14, 2009, Headley related the news to Rana, who responded “pray that this should not

7



have happened.” (Id. ¶113) Following the news of Kashmiri’s alleged death (the reports turned out

to be inaccurate), Headley and Pasha discussed returning to Lashkar Member Sajid Mir to continue

planning for the Denmark attack, but (referring to the above-described emails) Headley noted that

Sajid was focused on India (“their eyes are again in that direction”). (Id. ¶117)

On September 18, 2009, Headley forwarded a news article about Kashmiri to Rana. (Id.

¶¶28, 120) Among other details, the article identified Kashmiri as one of the most dangerous

al Qaeda-linked Pakistani commanders, that he had been charged with murder and kidnaping, and

that he was number 4 on Pakistan’s Most Wanted List. (Id.) After learning a few days later that

Kashmiri was alive after all, Rana reacted to the news: “wow, all praise be to God.” (Id. ¶126)

Headley also learned that Kashmiri was asking about him (Headley), and Headley had plans to travel

to Pakistan. (Id. ¶¶125, 127)

Before Headley traveled to Pakistan, Rana made efforts to obtain a visa for Headley by

contacting the Consul General at the Pakistani Consulate in Chicago. Rana, Headley and the Consul

General all went to school together, however, the Consul General knew Headley only by his birth

name (Gilani). Despite the fact that they knew each other, Rana stated only that he wished to obtain

a visa for a white American who had no Pakistani background at all. When the Consul General

suggested that Rana send his friend to the Consulate, Rana explained that he sent his friend

elsewhere to take care of some unspecified business so that someone else would visit. It was clear

from the conversation that Rana was attempting to deceive the Consul General into issuing the visa

without knowing for whom the visa was issued. (Id. ¶ 124) A few days later, agents arrested

Headley at O’Hare Airport, where he was intending to travel to Pakistan after stopping in

Philadelphia. (Id. ¶¶128)

8



Search Locations

Based on the evidence outlined in the affidavit, the government submitted that there was

probable cause to believe that evidence would be found in the search locations. As to Rana’s

residence, among other relevant facts (including evidence of tax violations), the government noted

that physical and electronic surveillance had established that Headley had visited Rana’s residence

on multiple occasions. (Id. ¶142) Further, there was evidence to believe that emails, including the

above-described email to the Jyllands-Posten where Rana posed as Headley to assist his ruse of

being interested in an ad, were sent from that location. (Id. ¶144) As to Rana’s farm, among other

relevant facts, the government noted that surveillance had observed Headley and Rana at this

location. (Id. ¶155) Further, records established that Headley used computers at the farm to access

his email accounts. (Id. ¶ 156) As to Rana’s business, among other relevant facts (including

evidence of immigration and visa fraud), the government noted that physical surveillance had

observed that Headley frequently visited that location throughout August and September 2009. (Id.

¶161) Further, as mentioned above, emails and other evidence established that Headley had used

First World as a cover story for his extended stays in Mumbai. Lastly, records established that the

mov.monie@yahoo account was created at that address. (Id. ¶162)

II. The District Court Should Deny Defendant’s Motion to Suppress

A. Legal Standard for Motion to Suppress

The Fourth Amendment requires, absent certain exceptions, that the government obtain a

search warrant from a neutral and disinterested magistrate before commencing a search. United

States v. Robinson, 546 F.3d 884, 887-88 (7 Cir. 2008). In seeking a search warrant, theth

government must establish, considering the totality of the circumstances, that there is sufficient

9



evidence to cause a reasonably prudent person to believe that a search will uncover evidence of a

crime. Id. This is a common-sense, non-technical determination based not on individual facts, but

on the totality of the circumstances known at the time the warrant is requested. United States v.

Aljabari, 626 F.3d 940, 944 (7 Cir. 2010). The circumstances need only indicate a reasonableth

probability that evidence of a crime will be found in a particular location; neither an absolute

certainty nor a preponderance of the evidence is necessary. Id. The Seventh Circuit has made clear

that direct evidence linking a crime to a particular place is not necessary. Id. The affidavit need only

contain facts that, given the nature of the evidence sought and the crime alleged, allow for a

reasonable inference that there is a fair possibility that evidence will be found at a particular place.

Id.

The Fourth Amendment further requires an evidentiary hearing regarding the veracity of the

information included in an application for a search warrant if the defendant is able to make a

“substantial preliminary showing that a false statement knowingly and intentionally made, or with

reckless disregard for the truth, was included by the affiant in the affidavit, and if the allegedly false

statement is necessary to the finding of probable cause.” Robinson, 546 F.3d at 887-88 (quoting

Franks v. Delaware, 438 U.S. 154, 155-546 (1978) (emphasis supplied)) A defendant similarly may

challenge an affidavit by showing that the affiant intentionally or recklessly omitted material

information. Robinson, 546 F.3d at 888. Here, defendant does not allege that any intentionally false

statements were included in the application; instead, defendant asserts that the affidavits intentionally

or recklessly omitted material information, namely, statements made by Headley during his post-

arrest questioning.

In determining whether the omitted information is material, the court “examine[s] whether

10



a hypothetical affidavit that included the omitted material would still establish probable cause.”

Robinson, 546 F.3d at 888. “[A]n omitted detail is ‘material’ only if its inclusion would upset a

finding of probable cause.” United States v. McDuffy, 636 F.3d 361, 363 (7 Cir. 2011). th

B. A Hypothetical Affidavit with Headley’s Post-Arrest Statements Would StillEstablish Probable Cause

In his motion, defendant does very little to address the evidence outlined in the 75-page

affidavit submitted in support of the application for the search warrants. Instead, defendant

essentially argues that the government lacked probable cause to search the three locations associated

with Rana (his residence, farm and business) because his friend, Headley, offered innocent

explanations for Rana and simply refused to discuss Rana. Headley explained: “I just have only one

friend, that’s Dr. Rana.” Headley further stated:

. . . he’s the only one [friend]. . . . And uh, and I would not like to answer questionsabout either him or my wife. . . . Because um . . . they’re not, uh, they’re not involvedin anything . . . and if . . . if, you’re going to, I have to say I know . . . they, they doknow something . . . it’s, it’s . . . like my wife knows something or Dr. Rana knowssomething . . . it’s just because of their closeness to me, and they should, I don’t feelthat they should uh, uh you know, be targeted not only for . . . for, for that, that’s it.

(Attached hereto as Exhibit C is a preliminary transcript of Headley’s video-taped post-arrest

statement, at USDOJ_ 04-945-96). Shortly after identifying him as his only friend, Headley again

stated that he did not want to talk about Rana:

And I also mentioned that anything that’s incriminating Dr. Rana . . . uh, I’m notgonna . . .anything else you want me to do, I’ll give my life.

(Ex. C, USDOJ_04-1144) Defendant’s argument that the omission of such statements was material

is flawed for several reasons.

First, the Seventh Circuit has made clear that the offering of an innocent explanation does

11



not negate probable cause, especially where the totality of the circumstances shows the explanation

to be unlikely or even implausible. Reed, 443 F.3d at 603; Funches, 327 F.3d at 587. Here, the

totality of the evidence overwhelmingly established probable cause to believe that Rana knowingly

provided and concealed the material support provided to Headley’s efforts, regardless of Headley’s

statements. As described above, the emails, recorded conversations (including their discussion of

“Denmark” as a “target”), physical evidence, surveillance and records discussed in the affidavit

established this probable cause. As the Court noted in deciding Rana’s request for a bond, the

“evidence in the form of recorded conversations, while not conclusive, appears to corroborate the

Government’s contention that [Rana] was a knowing ally of Headley and had been acquainted in

advance of the Mumbai attacks.” (R. 69 at 1) Inclusion of Headley’s statements, or refusals to make

statements, would not have negated the probable cause established by these recordings, emails and

other evidence.

Second, independent of Rana’s complicity, the evidence established that there was probable

cause to believe that evidence of the articulated offenses would be found at each of the search

locations. Surveillance established that Headley frequented each of the locations. Records

demonstrated that Headley used the computer at the farm to access email accounts. The evidence

also established that a communication with the Jyllands-Posten, the target of the planning, was sent

from Rana’s residence. Lastly, considering Headley’s use of the Immigrant Law Center as his cover,

there was probable cause to believe that there would be evidence at that office, including records

relevant to the operation of the Mumbai office. Once again, inclusion of Headley’s statements would

not have negated the probable cause.

Third, the record demonstrates that the Magistrate’s determination that probable cause

12



existed had little to do with what Headley said or did not say. Indeed, the Magistrate Judge found

that probable cause existed to believe that evidence would be found at the search locations before

Headley ever said a word. (Exhibit A)

In short, considering the totality of the evidence outlined in the 75-page affidavit, the

government submits that a Court would still have found that probable cause existed when

considering a hypothetical affidavit that contained Headley’s explanations or refusals relating to

Rana. The omissions were not material and, as such, the defendant has failed to meet his burden in

requesting an evidentiary hearing. McDuffy, 636 F.3d at 364 (affirming the denial of a Franks

hearing based on its consideration of a hypothetical affidavit); Robinson, 546 F.3d at 887-88

(affirming denial of a Franks hearing based on consideration of a hypothetical affidavit).

WHEREFORE, the government respectfully requests that defendant’s motion be denied.

Respectfully submitted,

PATRICK J. FITZGERALDUnited States Attorney

By:/s/ Daniel J. CollinsDANIEL J. COLLINSVICTORIA J. PETERSSARAH E. STREICKERAssistant United States Attorney219 South Dearborn Street,5th FloorChicago, Illinois 60604(312) 886-3482

13



EXHIBIT A

Case: 1:09-cr-00830 Document #: 297-1 Filed: 07/20/11 Page 1 of 66 PageID #:1828


EXHIBIT B



EXHIBIT C



government’s memorandum in opposition to …

Documents