United States v. Khalid Aldawsari
740 F.3d 1015
5th Cir.2014Background
- Appellant, a Saudi national who came to the U.S. to study chemical engineering, acquired chemicals and planned bomb targets in late 2010–early 2011; FBI alleged intent to manufacture picric acid and listed targets including the former President’s residence and public venues.
- FBI executed searches of Appellant’s apartment and computer pursuant to FISA orders issued by the FISC under 50 U.S.C. §§ 1805(a) and 1824(a); Appellant was arrested February 23, 2011.
- Appellant was indicted for attempted use of a weapon of mass destruction (18 U.S.C. § 2332a(a)(2)); he moved to suppress evidence seized under FISA, which the district court denied.
- At trial the government relied heavily on FISA-derived evidence; Appellant was convicted June 27, 2012 and sentenced to life imprisonment (top of the Guidelines range).
- On appeal Appellant challenged: (1) denial of suppression of FISA-derived evidence, (2) the jury instruction on attempt (allegedly allowing conviction on mere preparation), and (3) procedural and substantive sentencing rulings (Guidelines cross-reference §2K1.4, obstruction adjustment §3C1.1, and overall reasonableness).
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity/admission of evidence obtained under FISA | FISA searches were not properly authorized because government did not show Appellant was an “agent of a foreign power”; thus evidence should be suppressed | Classified FISC submissions (reviewed in camera) show probable cause that Appellant met FISA definitions and searches were at least partly for national-security purposes | Court conducted de novo in camera review, upheld FISA authorizations, and affirmed denial of suppression |
| Jury instruction on attempt | The instruction’s sentence (“some preparations … may amount to an attempt”) permitted conviction for mere preparation without a substantial step | The instruction read as a whole accurately described the preparation-attempt continuum and required a substantial step strongly corroborative of intent | Instruction was a correct statement of law when read in context; no abuse of discretion |
| Sentencing: Guidelines cross-reference and adjustments | §2K1.4 cross-reference to attempted murder improper because no final target identified; §3C1.1 obstruction adjustment for feigning insanity unsupported; overall sentence substantively unreasonable | Court found ample evidence of contemplated targets (supporting §2K1.4); district court credited evidence of malingering (supporting §3C1.1); within-Guidelines sentence entitled to deference | Appellate court found no procedural error or clear factual error and no abuse of discretion in imposing life sentence; affirmed |
Key Cases Cited
- United States v. El-Mezain, 664 F.3d 467 (5th Cir.) (discusses review of FISA-authorized searches and admissibility)
- In re Sealed Case, 310 F.3d 717 (FISCR) (FISA searches constitutional where not solely for criminal prosecution)
- United States v. Duka, 671 F.3d 329 (3d Cir.) (FISA evidence admissible where national-security purpose exists)
- United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir.) (same)
- United States v. Ning Wen, 477 F.3d 896 (7th Cir.) (same)
- United States v. Damrah, 412 F.3d 618 (6th Cir.) (same)
- United States v. Mandujano, 499 F.2d 370 (5th Cir.) (some preparations may constitute attempt; question of degree)
- Gall v. United States, 552 U.S. 38 (2007) (reasonableness review of sentences; procedural/substantive analysis)
- United States v. Polk, 118 F.3d 286 (5th Cir.) (rejecting similar attack on Guidelines cross-reference)
- United States v. Greer, 158 F.3d 228 (5th Cir.) (circumstantial evidence can show intent to malinger for obstruction adjustment)
- United States v. Hernandez-Galvan, 632 F.3d 192 (5th Cir.) (standards for attempt and Guidelines review)