United States v. Pugh
945 F.3d 9
| 2d Cir. | 2019Background
- Defendant Tairod N. W. Pugh, a U.S. citizen and Air Force veteran, traveled from Egypt to Istanbul in January 2015 and was denied entry by Turkish authorities; Turkish authorities recovered/detained electronic devices later searched by U.S. agents.
- A draft document found on Pugh’s laptop (the “My Misha Letter”) professed allegiance to ISIS and expressed intent to use his skills to support the group; Pugh had also downloaded ISIS propaganda and materials about border routes into Syria.
- Pugh attempted to destroy/wipe electronic devices at the Turkish airport; he was returned to the U.S., arrested, and indicted on two counts: (1) attempt to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B), and (2) obstruction of justice (18 U.S.C. § 1512(c)).
- At trial the district court admitted the draft letter over Pugh’s marital‑communications privilege objection; a jury convicted on both counts.
- District court sentenced Pugh to the statutory maxima: 180 months on count one and 240 months on count two, to run consecutively (total 420 months); on appeal, convictions were affirmed but the sentence was vacated and remanded for more articulation of reasons.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Pugh) | Held |
|---|---|---|---|
| Admissibility of draft letter under marital‑communications privilege | Letter was not privileged because it was not a marital communication and, alternatively, was not intended to be confidential | Letter was a communication to spouse and thus protected by marital‑communications privilege | District court did not err: evidence supported finding letter was a draft not intended to be sent and not shown to be intended confidential; admission affirmed |
| Sufficiency — Count One (attempt to provide material support) | Evidence (propaganda, maps, tactical gear, travel to Turkey en route to Syria) showed intent and substantial step toward joining/supporting ISIS | Conduct was mere interest/ preparation (online activity, ticket only); insufficient to show substantial step | Jury verdict affirmed: rational juror could find substantial step and requisite intent |
| Sufficiency — Count Two (obstruction; nexus to official proceeding) | Destruction/wiping of devices at airport was done to impair availability of evidence for foreseeable official proceeding (e.g., grand jury/indictment) | No basis to foresee U.S. proceedings when denied entry to Turkey; no nexus established | Jury verdict affirmed: evidence supported reasonable foreseeability of U.S. proceedings and intent to impair evidence availability |
| Sentencing — procedural & substantive reasonableness | District court considered evidence and imposed within Guidelines and statutory maxima | Court failed to allow full allocution and failed to adequately articulate reasons for imposing consecutive statutory‑maximum terms | Right of allocution not violated; but sentencing explanation was inadequate to permit meaningful appellate review — sentence vacated and remanded for resentencing with articulated reasoning |
Key Cases Cited
- United States v. Yannai, 791 F.3d 226 (2d Cir.) (standard for abuse of discretion)
- In re Witness Before Grand Jury, 791 F.2d 234 (2d Cir. 1986) (marital‑communications privilege protects confidential spousal communications)
- United States v. Mejia, 655 F.3d 126 (2d Cir. 2011) (distinguishing factual application vs. scope of privilege)
- Trammel v. United States, 445 U.S. 40 (1980) (privileges narrowly construed; purpose of marital privilege)
- United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (attempt requires intent and substantial step)
- United States v. Farhane, 634 F.3d 127 (2d Cir. 2011) (substantial‑step analysis in material‑support context)
- United States v. Martinez, 862 F.3d 223 (2d Cir. 2017) (nexus/foreseeability requirement for § 1512 obstruction)
- United States v. Binday, 804 F.3d 558 (2d Cir. 2015) (foreseeability and nexus to official proceeding)
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (clear‑error standard discussion cited for factual review)
- Gall v. United States, 552 U.S. 38 (2007) (abuse‑of‑discretion standard for sentencing review)
- Rita v. United States, 551 U.S. 338 (2007) (no presumption of reasonableness for Guidelines sentence)
- United States v. Booker, 543 U.S. 220 (2005) (Guidelines advisory; sentencing discretion)
- United States v. Cavera, 550 F.3d 180 (2d Cir. en banc) (procedural requirement to articulate § 3553(a) analysis)
- United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (Guidelines sentence may nevertheless be substantively unreasonable)