## Facts

- The Mujahedin-e Khalq (MEK) is an Iranian militant group founded in the 1960s and associated with violent actions against the Iranian regime and the United States, including the 1979 hostage-taking of American embassy personnel.
- After the Iranian regime changed, MEK members operated abroad and later settled in Iraq near the Iranian border, where they continued militant activity with support from Saddam Hussein’s regime.
- The U.S. Secretary of State designated MEK as a “foreign terrorist organization” (FTO) under 8 U.S.C. § 1189(a)(1), which requires findings that the group is foreign, engages in terrorism or terrorist activity, and that the activity threatens U.S. nationals or U.S. national security.
- The designation process included political-branch participation and a direct judicial-review channel in the U.S. Court of Appeals for the District of Columbia Circuit, which could set aside a designation for ordinary administrative-law reasons (for example, arbitrariness or abuse of discretion). A designation could also be revoked by Congress or the Secretary of State.
- Federal law, 18 U.S.C. § 2339B(a)(1), made it a crime to “knowingly” provide “material support or resources” to a designated FTO.
- From 1997 to 2001, Roya Rahmani and others solicited charitable donations in the name of the “Committee for Human Rights” and sent the proceeds to MEK, including by wiring funds to a MEK bank account.
- The defendants also provided items such as credit cards to MEK.
- During a conference call with an MEK leader, the defendants were told MEK had been designated an FTO and were instructed to continue support despite the designation.
- The defendants allegedly sent at least several hundred thousand dollars to MEK.
- A federal grand jury indicted the defendants for conspiring to “knowingly and willfully” provide material support to a designated FTO, in violation of § 2339B.
- The district court dismissed the indictment, holding the designation statute (8 U.S.C. § 1189(a)(1)) unconstitutional because the defendants could not challenge the validity of MEK’s designation within their criminal case.

## Issues

1. Whether 18 U.S.C. § 2339B is unconstitutional because defendants prosecuted for providing material support to an FTO cannot collaterally attack the Secretary of State’s FTO designation in the criminal case.
2. Whether treating the FTO designation as binding in the prosecution violates due process or other constitutional limits given that Congress routed designation review to the D.C. Circuit.

## Decision

- The Ninth Circuit reversed the district court’s dismissal of the indictment.
- The court held the statutory scheme is constitutional even though defendants prosecuted under § 2339B may not relitigate the merits of the Secretary of State’s FTO designation in their criminal proceeding.
- The court concluded that Congress could channel challenges to an FTO designation into the review mechanism provided by § 1189, rather than permitting collateral attacks during criminal trials.
- The case was remanded for further proceedings on the indictment.

## Legal Principles

- Congress may make criminal liability depend on an executive designation made under legislatively defined criteria and procedures.
- Due process does not require that every defendant charged under § 2339B receive a second forum in the criminal case to contest the underlying correctness of an FTO designation, where Congress provided a separate, direct review process for the designation.
- A criminal defendant remains free to contest the elements of the charged offense (including whether the defendant knowingly provided material support to the organization and whether the defendant’s conduct fits the statute), even if the fact of designation is treated as settled for trial purposes.
- Routing designation challenges to a specialized review channel, rather than criminal prosecutions across multiple districts, is a permissible legislative choice when the scheme includes standards for designation and judicial review of the designation decision.

## Conclusion

United States v. Afshari held that prosecutions for providing material support to a designated foreign terrorist organization may proceed without allowing defendants to collaterally challenge the organization’s FTO designation in the criminal case, because Congress provided a separate statutory process for reviewing designations and defendants still may dispute the conduct and knowledge elements of § 2339B.


United States v. Afshari, 412 F.3d 1071 (2005)