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United States v. Aysheh

United States District Court, D. New Mexico

April 26, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
IMAD AYSHEH, a.k.a. Imad Manassra, IYAD AYSHEH, NEDAL AYSHEH, RAED AYSHEH, and NAEL ALI, Defendants.

          MEMORANDUM OPINION AND ORDER

          Hon. Judith C. Herrera, United States District Judge.

         Mr. Iyad “Ed” Aysheh and his three brothers - Imad, Nedal, and Raed Aysheh[1] are charged in an 18-page indictment with conspiring to sell “Indian-style” jewelry in violation of the Indian Arts and Crafts Act (“IACA”), 18 U.S.C. § 1159.[2] That statute criminalizes offering or selling a good “in a manner that falsely suggests it is … an Indian product.” 18 U.S.C. § 1159(a). According to the indictment, in 2014 Mr. Aysheh's brother Imad established a business in the Philippines called “Imad's Jewelry” to manufacture Indian-style jewelry using Filipino labor. Imad imprinted the letters “IJ” on the jewelry, but not a country-of-origin stamp. After importing the jewelry into the United States, the other Aysheh brothers supposedly sold it to retailers and customers throughout the country, including New Mexico, misrepresenting it as Indian made. Because of the international and interstate nature of the brothers' alleged conduct, the indictment implicates the Defendants in money laundering, introducing goods into United States commerce by false means, smuggling, and mail fraud and wire fraud. Mr. Aysheh moved to dismiss the indictment. See Def.'s Mot. to Dismiss, ECF No. 107. The Court, after considering the motion, response, and relevant law, concludes that motion should be denied.

         I. LEGAL STANDARD

         Under Federal Rule of Criminal Procedure 12 “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). In his motion to dismiss, Mr. Aysheh disputes many of the operative facts in the indictment. However, “the starting place for the Court's review” is the language of the indictment itself because district courts are “constrained to reviewing limited facts in considering a motion to dismiss” under Fed. R. Crim. P. 12(b)(1). United States v. Natchez, No. CR 15-2843-MCA, 2016 WL 9777188, at *1 (D.N.M. June 21, 2016). “Challenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence.” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (citations omitted). “Rather, [a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” Id. (citations and internal quotation marks omitted). “Courts should therefore avoid considering evidence outside the indictment when testing the indictment's legal sufficiency.” Id.

         II. DISCUSSION

         Paragraph 7(a) of the Indictment

         Paragraph 7(a) of the indictment accuses the Defendants of criminal misrepresentation of Indian produced goods in violation of 18 U.S.C. § 1159, alleging that the Defendants conspiring to

Knowingly display and offer for sale for $1, 000 and more, jewelry manufactured in the Philippines, in a manner that suggested the jewelry was Indian produced … when in truth and in fact, … the good was not Indian produced … in violation of 18 U.S.C. § 1159.

Indictment, ¶ 7(a), 2-3, ECF No. 2.

         As noted earlier, 18 U.S.C. § 1159 criminalizes offering or selling a good “in a manner that falsely suggests it is … an Indian product.” 18 U.S.C. § 1159(a). In his motion to dismiss, Mr. Aysheh explains that the criminal penalty provision of § 1159 has been challenged for vagueness and overbreadth under the First Amendment. Mr. Aysheh especially relies on a federal district court's examination in United States v. Pourhassan, 148 F.Supp.2d 1185 (D. Utah 2001) of whether the phrases “Indian produced” and “falsely suggests” under § 1159 were unconstitutionally vague or overbroad. Mr. Aysheh devotes five-pages to recounting well-established law governing constitutional challenges to vagueness, much of which is discussed in Pourhassan.

         Without ever asserting a First Amendment challenge or applying the law to the facts at hand, Mr. Aysheh's entire analysis is that “Iyad Aysheh rejects any suggestion that he attempted to pass of any of the foreign made product as Indian produced, an Indian product, or the product of a particular Indian and Indian tribe.” The Court considers this argument so inadequately briefed as to be waived. See Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007) (plaintiff's constitutional challenged waived where it consisted of “cursory statements, without supporting analysis and case law.”). Moreover, to the extent that Mr. Aysheh is challenging 18 U.S.C. § 1159 as unconstitutionally vague, the pinnacle case he relies upon, Pourhassan, the court held that - even applying a “strict” vagueness test - the phrases “Indian produced” and “falsely suggests” were not unconstitutionally vague and consequently denied the defendant's motion to dismiss the indictment. Mr. Aysheh's motion, while referencing principles of First Amendment law, never expressly sought to invalidate § 1159 or address head-on the complexity of issues raised in Pourhassan. Simply recounting caselaw and legal principles is not a substitute for legal analysis. The Court deems waived Mr. Aysheh's First Amendment challenge.

         Paragraphs 7(b) & (c) of the Indictment

         Paragraph 7(b) of the indictment accuses the Defendants of conspiring to commit the federal offenses of money laundering (18 U.S.C. § 1956(a)(2)(A)), importing merchandise by means of false statements (18 U.S.C. § 542) and smuggling goods into the United States (18 U.S.C. § 545). The charge states that the Defendants conspired to:

transport … funds in U.S. Currency from a place in the United States … to a place outside the United States … with the intent to promote the carrying on of specified unlawful activity, that is importing Indian-style jewelry manufactured by Imad's Jewelry ...

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