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United States v. Leveille

United States District Court, D. New Mexico

January 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JANY LEVEILLE, SIRAJ IBN WAHHAJ, HUJRAH WAHHAJ, SUBHANAH WAHHAJ, and LUCAS MORTON, Defendants.

          MEMORANDUM OPINION AND ORDER

          WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendants' Joint Opposed Motion to Strike Surplusage from Indictment. [Doc. 59, filed October 31, 2018]. Having reviewed the parties' briefs and applicable law, Defendants' Motion is DENIED.

         BACKGROUND

         Relevant to this case are only the facts contained in the indictment. Defendants, Jany Leveille, Siraj Ibn Wahhaj, Hujrah Wahhaj, Subhanah Wahhaj, and Lucas Morton were indicted for violations of 18 U.S.C. § 371, conspiracy, and 18 U.S.C. § 922(g)(e)(5) and 2, illegal alien in possession of a firearm and ammunition. [Doc. 25].

         Specifically, the indictment charges Leveille with possession of firearms by a non-citizen without status that permits firearms possession. [Doc. 25]. It also charges Leveille, Siraj Wahhaj, Hujrah Wahhaj, Subhanah Wahhaj, and Lucas Morton with conspiracy to provide Leveille with a firearm. [Id.]. The indictment alleges that Siraj and Hujrah “gathered firearms and ammunition” and “transported firearms and ammunition from the State of Georgia to the State of New Mexico.” [Id. ¶¶ 2, 4]. The allegations in the indictment include that all Defendants “traveled over state lines with firearms and ammunition” and that Siraj, Hujrah, Subhanah, and Lucas “provided Jany Leveille possession of firearms” and “ammunition[.]” [Id. ¶¶ 6, 12].

         The indictment also states:

• Jany Leveille and Siraj Ibn Wahhaj “transported across state lines minor children in fulfillment of Jany Leveille's religious prophecies.” [Id. ¶ 3].
• Defendants “established a residence, training camp, and firing range at which they stored firearms and ammunition and engaged in firearms and tactical training as part of their common plan to prepare for violent attacks on government, military, educational, and financial institutions in fulfillment of Jany Leveille's religious prophecies.” [Id. ¶ 5].
• Defendants “possessed and discharged firearms as part of their common plan to prepare for violent attacks on government, military, educational, and financial institutions in fulfillment of Jany Leveille's religious prophecies.” [Id. ¶ 8].
• Defendants “established a training camp and firing range at which [Defendants] and minor children engaged in firearms and tactical training as part of their common plan to prepare for violent attacks on government, military, educational, and financial institutions in fulfillment of Jany Leveille's religious prophecies.” [Id. ¶ 9].
• Defendants “stored firearms and ammunition as part of their common plan to prepare for violent attacks on government, military, educational, and financial institutions in fulfillment of Jany Leveille's religious prophecies.” [Id. ¶ 10].
• “Jany Leveille and Siraj Ibn Wahhaj, and others known and unknown to the grand jury, sought to recruit and train persons, including minor children, to be prepared to engage in jihad and train an army of jihad and to die as martyrs as part of the common plan to prepare for violent attacks on government, military, educational, and financial institutions in fulfillment of Jany Leveille's religious prophecies.” [Id. ¶ 11]. Defendants seek to strike all or part of these paragraphs.

         STANDARD

         The Federal Rules of Criminal Procedures provide that “[u]pon the defendant's motion, the court may strike surplusage from the indictment.” Fed.R.Crim.P. 7(d). “This rule introduces a means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may, however, be prejudicial.” Fed.R.Crim.P. 7, advisory committee's note to 1944 amendment. “Acting in its discretion, a district court may strike as surplusage allegations not relevant to the charge at issue and inflammatory and prejudicial to the defendant.” United States v. Collins,920 F.2d 619, 631 (10th Cir. 1990).[1] “However, ...


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