Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA )

)
v. ) CRIMINAL NO. 1:11CR007
)
AWAIS YOUNIS, )
Defendant. )

GOVERNMENT”S OPPOSITION TO DEFENDANT’S REQUEST

TO RECONSIDER PRETRIAL DETENTION

The United States, through undersigned counsel, opposes the defendant’s request to alter

his order of pretrial detention. The defendant cites no new facts and points to no changed

circumstances that were not known to the court below. Although this Court must make an

independent determination, we submit that there is no condition or combination of conditions

that will reasonably assure the safety of the community. The defendant has a long history of

mental illness, drug abuse and recent threats targeting the community at large.

1. On November 28, 2010, the Federal Bureau of Investigation (FBI) received

information from the complainant, that an individual, identified as Sundullah “Sunny” Ghilzai,

told the complainant during a Facebook chat how to build a pipe bomb and what type of shrapnel

would cause the greatest amount of damage. Ghilzai claimed that he could place pipe bombs

under sewer covers in Georgetown at rush hour and on the third and fifth cars of METRO trains

to inflict the greatest number of casualties without being noticed. When challenged by the

complainant that he would not do it, Ghilzai responded “Watch me.” The complainant reported

to the FBI that Ghilzai posted a photograph of him holding an AK-47 rifle with his uncle
 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 2 of 10

standing in front of a tent with explosives in Afghanistan. Attachment 1, the Criminal Complaint

attached for the convenience of this Court.

2. A federal search warrant was obtained for Sundullah Ghilzai’s Facebook account and

then a Grand Jury subpoena was utilized to identify the internet service provider for the

computer being utilized to access this Facebook account. The FBI was ultimately able to

identify the defendant, Awais Younis, as the true identity of Sundullah “Sunny” Ghilzai. On

December 4, 2010, the FBI obtained judicial authorization to install a pen register and trap and

trace device on the defendant’s cell phone in order to place him under surveillance.

3. The complainant reported to the FBI that on December 5, 2010, Sundullah Ghilzai

sent the complainant a threat revealing that Ghilzai was aware that the complainant had reported

him to the authorities. The complainant had not wanted to become involved, but given the

nature and detail of the pipe bomb chat session with Ghilzai and at the urging of a friend the

complainant decided to come forward. After receiving the internet threat on December 5th, the

complainant photographed the chat session with a cell phone and forwarded the computer screen

photographs to the FBI. Attachment 2. In this threat the defendant tells the complainant: “fear

me” and associates himself with an act of terrorism. He tells the complainant to have the

complainant’s father cancel work the next day.1

1
The complainant is a young mother married to a soldier who knew the defendant from
school. She has never had a romantic relationship with the defendant, but the defendant is aware
that her father lives in this immediate area and uses METRO to commute to work. The
complainant has allowed the FBI access to her personal computer and is assisting the FBI to
obtain her telephone records. She is extremely concerned for her own safety and that of her
family. To date, the government has been unable to identify the friend or associate of the
defendant who alerted him to the FBI’s investigation.
 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 3 of 10

4. The defendant was arrested the next day, December 6, 2010,2 pursuant to a federal

arrest warrant and his residence was searched. Located in his eleven-year-old sister’s bedroom

in a shoe box was a 40 caliber Glock firearm, fully loaded with 9 mm ammunition. Hidden in a

humidifier was additional 9 mm ammunition. Also in the little girl’s bedroom was $22,290 in

cash and over 5 kilograms of marijuana under her bed. A smaller amount of marijuana was

located in the basement in a storage closet. Mental health documents related to the defendant

were found. The latest was dated November 2010, from George Mason University and appeared

to be a consent form for a psychological evaluation.

5. The defendant waived his Miranda rights after his arrest on December 6, 2010. He

admitted he was the sole user of the Facebook account in this case. The defendant told the FBI

that his account was password protected and that he knew the complainant. He told the FBI he

made up his Facebook name, Sundullah Ghilzai. When asked if he had anger management

issues, the defendant told the agents he could tell they had talked to someone and didn’t want to

discuss it with them. The defendant denied making recent threats to the complainant.

6. The defendant, Awais Younis, also known as Sundullah Ghilzai and “Sunny,” is an

unemployed, twenty-five-year old, self-described “full time” student. At the hearing before this

Court on January 21, 2011, the defendant tendered his school records. Upon closer inspection,

however, these records stop at January 2008, three years ago. The records are actually Transfer

Equivalency Worksheets, apparently used to determine what credit hours George Mason

University will give the defendant for his three years (2005 to 2008) of work in the community

2
The defendant argues that the dates of these events were unclear and even suggested
there was some delay in the investigation of these threats. The Affidavit in Support of the
Criminal Complaint demonstrates this assertion is entirely without merit. The threat was made
on December 5, 2010, and the defendant was arrested on December 6, 2010.
 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 4 of 10

college system. The courses of study – chemistry and biology – are of concern in the context of

a defendant who is describing how to build pipe bombs. While we do not know what course

load he was last taking at George Mason University, we do know they issued to him a referral

for mental counseling as recently as November 2010, just weeks before his arrest in this case.

The defendant is apparently now in his sixth year as a “full time” college student without any

current employment. He also has apparently transferred between at least three schools during his

six years in college. He claims to be financially supported by his disabled father and mother.

Yet, $22,290 in cash was recovered from his residence. More troubling, a friend of the

defendant’s reported that the defendant became violent over poor grades at George Mason

University. Attachment 3 (“BIKOS has fixed computers that Younis has ‘smashed up’ over

receiving poor grades or other social problems” FBI interview at 1).

7. The defendant was ordered detained by Magistrate Judge Ivan Davis on December 21,

2010. The court below found that no combination of conditions would reasonably assure the

safety of the complainant, her family and the community. The defendant was previously

represented by the Office of the Federal Public Defender. The defendant is now indicted with a

trial date of March 16, 2011.

8. The Magistrate Judge below, ordered that the defendant be screened by a mental

health professional and that a report be prepared assessing the defendant’s risk of dangerousness.

The report thereafter was prepared by a licensed mental health professional with Counseling and

Forensic Services, Inc., who was selected by Pretrial Services pursuant to the lower court’s

order. 9. The report, dated December 16, 2010, revealed that the defendant was

administered a HCR-20 test, which is described as a checklist of risk factors for violent behavior.

The test covers historical factors, clinical variables and future risk management issues. The

HCR-20 placed this defendant at high to moderate risk of violence. The mental health
 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 5 of 10

professional rendered her opinion that the defendant’s release is not recommended and that he

was classified as a moderate to high risk of dangerousness.

10. The report reveals a long term mental health history associated with this defendant.

Although he repeatedly minimized this history when interviewed by the mental health

professional, it apparently began in middle school and included an inpatient commitment with

concerns about suicide. The mental health care continued for his entire four years in high school

with weekly counseling. The defendant’s father reported to pretrial services that the defendant

has “anger issues.” This assessment is echoed by the defendant’s younger brother, one of the

juvenile twins who was also arrested when the defendant’s residence was searched. Attachment

4 (FBI interview and Arlington Jail email). Of concern are the references to this defendant

“pushing a little” (presumably dealing drugs)(FBI interview at 2), being violent (“threatened his

Uncle with a knife” 12/16/10 jail interview) and having “genuine mental health issues” (FBI at

1).

11. The defendant admitted chronic, long term drug abuse. He admitted using marijuana

regularly since he was sixteen. He reported briefly attending an outpatient substance abuse

program as recently as 2009, but admitted he stopped after two sessions. He admitted using

drugs until his arrest in this case. It is not without significance in the government’s view that the

drugs being sold from the defendant’s residence is marijuana, the same drug used by this

defendant. The defendant is the oldest child in the residence at twenty five-years-old. His two

twin brothers are actually juveniles (seventeen-years-old until October of this year), together

with his eleven-year-old sister. The defendant’s other brother is an adult who lives in

Woodbridge.

12. The government’s search of the defendant’s computers and electronic storage

devices, which is still incomplete given the 4-5 TB size of the machines, has revealed (1) a

photograph of a flag with the Islamic shahada and sword that is utilized by Al Qaeda to call
 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 6 of 10

Muslims together for jihad; (2) a photo of Adam Gadahan, an American who has become a

spokesperson for Al Qaeda; (3) a cartoon depicting a man with a rifle and another man standing

on skulls with blood dripping from both men’s hands; (4) several photographs of weapons

including machine guns; (5) photographs of the armed conflict in the tribal regions of

Afghanistan and/or Pakistan.3

13. As this Court properly noted, the defendant is entitled to seek this Court’s review of

his pretrial detention. 18 U.S.C. § 3145(b). This Court is not bound by the recommendation of

the pretrial service or decision of the lower court.

14. There are specific, articulated factors to be considered by a judicial officer:

in determining whether there are conditions of release that will reasonably assure
the . . . the safety of any other person and the community, take into account the available
information concerning —
(1) the nature and circumstances of the offense charged, including whether
the offense is a crime of violence . . . ;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including — (A) the
person’s character, physical and mental condition, family ties, employment, financial resources,
. . . history relating to drug or alcohol abuse....
(4) the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release.

18 U.S.C. § 3142(g). The term “crime of violence” as used in this statute is defined as “(A) an

offense that has an element of the offense the . . . threatened use of physical force against the

person or property of another; (B) any other offense that is a felony and that by its nature,

involves a substantial risk that physical force against the person or property of another may be

used in the course of committing the offense . . . .” 18 U.S.C. § 3156(a)(4).

15. This is a crime of violence. The defendant’s recorded words explicitly seek to

3
The defendant separately asks for Brady information. The government has previously
notified the defense counsel that four hard drives are required to provide him with complete
copies of the defendant’s computers. Attachment 5. To date the government has not received
these hard drives, but will promptly copy the computers for counsel in their entirety. The
government is today providing a copy of the defendant’s recorded jail calls (a mix of English and
Urdu, but mainly in Urdu) and copies of the material obtained from Facebook. If the
government identifies any Brady, it will be promptly provided to counsel.
 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 7 of 10

place the complainant in fear and the context of their discussion about pipe bombs combined

with his threat that her father cancel work on December 6, 2010, make this a crime of violence.

United States v. Petersen, 557 F.Supp.2d 1124, 1126 n1 (ED Cal. 2008) (Section 875 violation is

a crime of violence where defendant impersonated DEA agent and made threatening

communications and was ordered detained pretrial); United States v. Osborne, 2003 WL

22173072 (D. V.I. 2003) (threatening a juror by making a gesture to that juror as if he were

cutting her throat held to be a crime of violence and pretrial detention ordered at 3). The treat in

this case is not simply directed against the complainant in Louisiana, or even against her family

in this immediate area, but also against the public at large. The conversation about pipe bombs

discusses targets in Georgetown and aboard METRO trains.

16. The detention statute directs a Court to examine the “history and characteristics”

of the defendant. This defendant is unemployed, unmarried, has a long history of mental illness

and a long history of drug abuse. He has been in college since 2005, his grades apparently are

falling causing him to act out violently (attached Bikos interview) and immediately before his

instant arrest the defendant was referred to mental health counseling by his latest university.

The Court has a defendant before it who is verbalizing threats against the community. Recent

events in Arizona demonstrate the unfortunate but ready access to weapons by mentally

disturbed individuals. The defendant’s family and residence reflect very serious deficits. They

have a major marijuana selling operation based in the residence and a loaded firearm under an

eleven-year-old child’s bed. They may be supplying drugs to the unemployed defendant who

they believe to have genuine mental health issues.

17. Respectfully, under all of the articulated factors identified in the pretrial detention

statute, no combination of factors can reasonably assure the safety of this community. Electronic

surveillance is of no use where METRO stops are everywhere. Third party custodians are of

little value with mentally ill defendants. The defendant’s mental history is extremely long for
 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 8 of 10

someone who is just twenty-five-years old. His father and brother both corroborate what is

described as genuine mental health concerns with anger management issues. There are

photographs on his computer that corroborate the complainant. The photographs further suggest

that this defendant has identified with the tribal conflict in the Afghan/Pakistan region on some

level. Photographs of firearms, discussions of explosives, association with terrorist acts (“we

dropped the twin towers” Attachment 2) all point to a unstable, dangerous individual.

18. The defendant calls the mental health professional’s report a “farce.” Defendant’s

Motion at 6. We disagree. The mental health professional was not selected by the government

and is apparently routinely engaged by pretrial services. It is only after the professional opinion

rendered is adverse to the defendant that it is ridiculed. The defendant has not tendered any of

his mental health records to the examiner, this Court, or otherwise sought to address the opinion

rendered. The force of the examiner’s report is not solely reliant on its test results, but also the

review of the defendant’s lengthy history of mental health counseling. This fact is not disputed.

The defendant’s own family corroborates the genuine mental health concerns.

19. The defendant has not tendered anything to explain why he has not been able to

complete his college education in six years. He says his family is financing his education, but

who is financing his drug habit? He portrays himself as an exceptional student based upon

community college records from three years ago. The fact is the defendant has moved between a

series of colleges and his current university has directed him to have mental health evaluation.

This pattern of movement among institutions, of declining grades and of mental health referral is

disturbing. The defendant’s mental health and drug usage are critical because no condition of

release can work without the cooperation and compliance of the defendant. He doesn’t believe

he has a drug problem and judging from his FBI interview and mental health evaluation, he does

not believe he has a mental health problem.

 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 9 of 10

20. The indictment before this Court involves the threatened use of force. The

complainant has come forward despite considerable safety concerns to bring to the authorities’

attention the actions of this defendant. The complainant photographed the threat she received

after she coming to the FBI. The government submits to this Court that the criminal charges are

concise and readily proven to a fact finder. The trial is set for March 16, 2010, approximately

six weeks away. We submit the lower court got it right when it ordered this defendant detained.

The order of detention was strongly supported by a mental health evaluation. Conditions cannot

be fashioned for a defendant with serious mental health issues who is making threats against the

public. No conditions can reasonably assure the safety of the community. A month later nothing

before this Court addresses these mental health concerns. The government submits the lower

court properly concluded that no condition or combination of conditions could reasonable assure

the safety of the public and we urge this Court to reach the same conclusion.

Respectfully submitted,

Neil H. MacBride
United States Attorney

By: /s/
Ronald L. Walutes, Jr.
Virginia Bar No.: 26312
Attorney for the United States of America
United States Attorney’s Office
Justin W. Williams United States Attorney’s Building
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: 703-299-3700
Fax: 703-739-9556
Email: ron.walutes@usdoj.gov
 Case 1:11-cr-00007-TSE Document 27 Filed 01/26/11 Page 10 of 10

CERTIFICATE OF SERVICE

I electronically filed the foregoing Opposition with the Clerk of the Court using the
CM/ECF system, which will send a notification of such filing (NEF) on January 26, 2011, to the
following:

Frank Salvato, Esquire

Virginia Bar No. 30453
Counsel for the defendant

By: /s/
Ronald L. Walutes, Jr.
Virginia Bar No.: 26312
Attorney for the United States of America
United States Attorney’s Office
Justin W. Williams United States Attorney’s Building
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: 703-299-3700
Fax: 703-739-9556
Email: ron.walutes@usdoj.gov