The lawyer for a Phoenix man accused of helping plan the botched May 3 terrorist attack in Garland, Texas, says computer evidence against his client should be ignored because it was obtained unlawfully by police.
Abdul Malik Abdul Kareem, 44, is being held in Arizona on a four-count indictment charging him with lying to federal agents and with helping to provide firearms for the planned violent rampage at the "Muhammad Art Exhibit and Contest" in Garland, an event put on by anti-Islam activists. The attack could have been much worse, but Kareem's two alleged accomplices, Phoenix residents Elton Simpson and Nadir Soofi, were killed by a hail of bullets nearly as soon as they began firing into a crowd of people at the event. A security guard was wounded by the attackers, but no other victims were shot.
A month later, Kareem was arrested in Phoenix. Previously known as Decarus Thomas before his conversion to Islam, Kareem ran his own carpet-cleaning business and occasionally would do volunteer and paid work at the Islamic Community Center of Phoenix. He reportedly kept weapons and body armor in a safe at his Phoenix apartment, despite a prohibition on owning firearms from a 2004 felony conviction for aggravated DUI. Prosecutor Kristen Brook told U.S. District Judge Bridget Bade in June that Kareem was "off-the-charts dangerous."
Part of the perceived danger stemmed from files allegedly found on Kareem's laptop. The files included a training video that "makes killing civilians acceptable" and digital copies of Inspire, an English-language magazine believed to be published by Al-Qaeda affiliates.
But Daniel Maynard, a private attorney appointed as Kareem's defense lawyer in the case, wrote in a motion this week that the digital files had been obtained and possessed by the FBI in 2012 as part of a different investigation.
Ostensibly, the earlier investigation had nothing to do with Kareem — it focused on a man named Abubakar Hussein Ahmed, who allegedly attempted to create a bogus Arizona State University diploma. In July 2012, a warrant authored by ASU police Corporal Daniel Herrmann was served at the apartment at 2419 West Vista Avenue in Phoenix, where Ahmed, Kareem, and Simpson lived. The warrant alleged that Ahmed had sent an e-mail to a printing company requesting his name be forged onto an ASU bachelor's degree diploma, and allowed for a search of evidence related to the forgery.
"Although there was no mention of Mr. Simpson or Mr. Abdul Kareem in the search warrant affidavit, their private room within the residence was searched and their electronic devices were seized," Maynard's motion states.
In fact, the 2012 search was a pretext "conducted in bad faith with the true intent to access the computers in the residence so the FBI could search for Islamic and terrorist-related materials," the motion says.
Ahmed was never charged with a crime. But the FBI held onto the seized computers for two years, meanwhile making complete copies of the memory drives.
Simpson had been suspected of planning terrorism by the FBI since the mid-2000s, court records show. He was investigated in 2009 by FBI agents who believed he was part of a "terrorist cell" in Arizona that had been set up by another suspect, Hassan Abu-Jihaad, sentenced in 2008 to 10 years in prison for spying.
"The evidence is fruit of the poisonous tree and should be suppressed." — Daniel Maynard, lawyer for Abdul Kareem.
An FBI informant who was paid $132,000 over five years developed a friendship with Simpson and recorded countless hours of conversation with him. As a March 2011 bench-trial ruling by U.S. District Judge Mary Murguia relates, Simpson told the informant of possible plans to travel to Somalia, but he later lied to FBI agents about that discussion. Murguia found Simpson guilty but ruled that the government had not proved that Simpson's plans were related to international terrorism. He was sentenced to three years' probation.
Following the trial, in November 2011, agents met with Ahmed — who later would be suspected in the diploma scheme — and Kareem.
"Federal agents inquired as to whether they knew the names of people who had plans to harm anyone and offered them money for information to this effect," Maynard's motion states.
The raid on the apartment regarding the alleged diploma fraud and seizure of computers came about eight months later.
In January 2014, the FBI called Simpson and Kareem and let them know they could come to the agency's Phoenix headquarters to pick up their computers. Both Simpson and Kareem were interviewed at the time about the digital content on the computers, and both were asked about the issues of Inspire magazine contained on Kareem's laptop and in a flash drive attached to the laptop.
Agents retained the mirror image of Kareem's hard drive despite the lack of a warrant authorizing them to do so, Maynard's motion states.
On May 28, the FBI obtained a new search warrant authorizing agents to search an "image copy" of Kareem's laptop and attached flash drive. But the agency should never have had possession of those files in the first place, Maynard argues.
"The 2012 affidavit did not disclose a single fact supporting probable cause to search for evidence of Islamic issues. Therefore, law enforcement was not authorized to search for, much less seize, such evidence," the motion states. "The fact that they sought a new search warrant for the same evidence that was illegally obtained and searched does not dissipate [the] taint of that illegality. As such, the evidence is fruit of the poisonous tree and should be suppressed."
The computer files aren't the only evidence the government has against Kareem, however. Two confidential sources for the FBI claim that Kareem talked extensively about the Garland attack and his role in it. Kareem also allegedly stated he'd like to obtain pipe bombs and attack the 2015 Super Bowl in Glendale.
UPDATE November 6: U.S. Government refutes Kareem's claim on computer evidence seized. The alleged forgery case is still an open investigation, and the extremist materials found on Kareem's computer — which he eventually sold to a government witness, anyway — could provide evidence of a motive, prosecutors state in a response motion filed today. See the new motion below: