*1 America, under process'claims eral due 1983 and United States of Plaintiff-Appellant, case—a rather created a constitutional which, after swollen one at three- that — v. years litigation, and-a-half of additional Ali, Reda, Ahmed Omar Abu a/k/a a/k/a going right basically to the court and back Hani, Umar, Ashraf, Abi a/k/a a/k/a part, the claims with which it started. Abdullah, Defendant-Appel- Abu a/k/a tragedy this is sad because of the case lee. it into motion. But set is sad also 06-4334, Nos. 06-4521. long legal detour that because stilled all on the merits while federal progress Appeals, United States Court of necessarily prospect courts rebuffed Fourth Circuit. taking federal law over the traditional of- Argued: June 2007. every fice of the states. Plaintiffs had right complaint; to amend their state court Decided: June every had right defendants to remove on question; of a federal plain- basis every right tiffs had to appeal the dismiss-
al of their federal claims. But wisdom
may reside in recognizing less is
sometimes more and that advocacy zealous always part company
need not with for- Recognizing
bearance and restraint. remains,
case for what it was and what it
we affirm the plaintiffs’ dismissal of feder-
al claims and direct that all state claims be
remanded to state court. PART,
AFFIRMED IN REVERSED PART,
IN AND REMANDED America,
UNITED STATES of
Plaintiff-Appellee, ALI,
Ahmed Reda, Omar ABU a/k/a Hani, Umar, Abi Ash-
a/k/a a/k/a a/k/a
raf, Abdullah, Defendant- a/k/a
Appellant. *10 Dratel, New Joshua Lewis
ARGUED: York, York, Ahmed Omar Abu New for Ali, David Appellant/Cross-Appellee. Laufman, States Howard Assistant United At- Attorney, Office of the United States Alexandria, for the torney, Virginia, Unit- States, ON Appellee/Cross-Appellant. ed University Joseph Margulies, BRIEF: Illinois, School, Chicago, Chicago Law Ali, Appellant/Cross- Ahmed Omar Abu Rosenberg, Chuck United Appellee. Attorney, Stephen Campbell, M. States Attorney, States Marla Assistant United Tusk, Attorney, Department B. Trial Justice, Attor- of the United States Office Alexandria, ney, Virginia, for States, Appellee/Cross-Appellant. WILKINSON, MOTZ, and Before TRAXLER, Judges. Circuit part, part, Affirmed in reversed Judge by published opinion. remanded WILKINSON, MOTZ, Judge Judge *11 joint opinion requirement wrote a in this that an TRAXLER accused receive a Judge fundamentally case, fair trial. In Judge case. WILKINSON and this we entirety. in are satisfied that Abu Ali join opinion TRAXLER its received a fair trial, though one, not a joins opinion perfect with the and that Judge MOTZ VII, justice the criminal system performed 5 and exception of footnote Section those functions which the Constitution en- dissenting to which she has written visioned for it. The three of unani- opinion. statement and us
mously express our conviction that this is OPINION opinion, so in this jointly which we have authored. WILKINSON, MOTZ, TRAXLER, and Judges:
Circuit exist, however, Some differences do among panel Judge Ali members. Wilkin- Ahmed Omar Abu was convicted Judge join son and Traxler in jury arising opinion of criminal counts nine (in entirety. Judge in its al-Qaeda Motz dissents his affiliation with an terrorist 6) Medina, Arabia, majority’s holding footnote from the cell located in Saudi interrogation of Abu Ali on June plans carry out a of terrorist its number 15, 2003, joint did not constitute a venture country. in He was acts sentenced between law enforcement officers of Saudi imprison- the district court to 360 months Arabia and those of the United States. supervised ment and 360 months of release Judge Motz likewise dissents from Section following imprisonment. appeals Abu Ali panel’s opinion, VII of the which directs his convictions and the cross- that the case be remanded to the district appeals following his sentence. For the reasons, conviction, purposes resentencing. of we affirm the but we purposes vacate and remand for of resen- I.
tencing. suspected Unlike some others of terror- A. designs upon ist acts and the United Ali Abu is an American citizen. He was States, Ah formally charged Abu was Church, in born in Texas and raised Falls according customary processes tried father, Virginia by his mother and justice system. of the criminal Persons of employed Royal latter of whom at the good may disagree precise will over the Embassy Washington, Arabia in Saudi justice extent to which the formal criminal graduating After from the Saudi Is- D.C. process must be utilized when those sus- Academy Virginia, in Abu Ali studied lamic in pected participation terrorist cells University for one at the of Ma- semester and networks are involved. There should in ryland and then enrolled the Institute however, disagreement, be no Virginia study Islamic Sciences. justice system criminal does retain an im- portant place ongoing September age in the effort to deter at the Church, Ali punish terrorist acts without the sacri- Abu left his home Falls Virginia fice of American constitutional norms and and traveled to Saudi Arabia to University in apparent study bedrock values. As will be here- at the Islamic Medina. in, justice system the criminal is not with- a few months of his arrival Medi- Within na, adaptation al-Qahtani out those that will Abu Ali contacted Moeith attributes (“al-Qahtani”). al-Qahtani permit post-9/11 to function Abu however, years when adaptations, world. These need had become friends two earlier study Ali attended an Islamic summer expense not and must not come *12 my and, diately accepted, his re- because of hatred of upon Arabia in Saudi session I felt Arabia, for what was its [United States] Abu Ali renewed turn to Saudi against of Israel Palestinian support two talked about “often friendship. originally and I people, because was and, al-Qahtani jihad” in November Sul- Jerusalem.” Ali to Sultan Jubran introduced Abu (“Sultan Jubran”), who was al-Qahtani tan Later, Ali Sultan Jubran advised Abu “Ali.”1 Sultan by also the name of known meeting Ali that Abu would soon be “the during mujahid a soldier Jubran had been charge in Ac- person organization.” of the Bora in of Tora bombing States Ali, Abu Jubran cording to Sultan “ex- (a al- major Afghanistan battle between now, them plained to me that I was one of States Qaeda/Taliban forces and United name speak that I could in the of al- and invasion) Afghanistan during forces later, A Qaeda.” days few Sultan Jubran Ali, and, sec- introduced to was when Abu himself, a Abu arranged meeting between in al-Qaeda cell ond-in-command Ali, al-Faq’asi and Ali Abd alRahman al- Ali and liked the “accepted Medina. Abu leader (“al-Faq’asi”), Ghamdi meeting “mujahid idea” brother.” charge” al-Qaeda in “brother terror- introduction, After and Sultan Ju- their he Medina, in also ist cell who was known ji-of bran talked “about the virtues also of “Adil.” the name to exchanged phone had” cell numbers and Ali and a al-Faq’asi Abu met number of keep in touch. times thereafter to discuss Medina months,. ensuing In Ali and Abu jihad. plans specifically, cell’s al- More Sultan continued their discussions. Jubran Faq’asi advised Ali that an assign- Abu Jubran During meeting, one such Sultan planned ment was inside the United States questioned Ali and gathering Abu “about and the two men discussed and considered in States. places” crowded the United a number alternatives for terrorist at- Ali, implication Abu who “understood According tacks within the United States. question,” Sultan Jubran informed Ali, al-Faq’asi “presented to Abu me with ... parks “would be amusement these ideas, I two based on the fact that awas and At one when Abu point, stadiums.” I citizen and that had not [United States] Ali in contacting Sultan was unsuccessful jihad engaged before.” “The first idea phone, Jubran cell the lat- he obtained carry major operation out a was he al-Qahtani ter’s email address from and arrange.” would The second “that I asking sent message Sultan Jubran States], go to the would settle [United thereafter, Shortly he contacted. Sul- be down, work, life, find lead a normal blend tan did contact Ali and the Jubran Abu society marry into American Chris- Jiddah, two Ara- again men met Saudi tian,” “plan him to which would allow suc- bia, just to the which is south Medina. operations cessive [United inside urged At Abu meeting, Sultan Jubran al-Faq’asi for which ... would States] jihad engage against America. carry send individuals to out.” other Ali, Ali, “told According words, to Abu Sultan Jubran who was a United States they me that had something to do” citizen able return at will move join them in ready freely country, marry “asked be about would [me] woman, against overtly Ali “imme- working America.” Abu Christian live an normal (2d ed.2001). holy Dictionary 1. Jihad "a war as a sacred undertaken duty by Unabridged Muslims.” Webster's attention, “Ashraf,” sleeper ing. Using establish a the name Abu Ali life to deflect by a country, prepare for was trained man called “Ahmad” on cell within this *13 how to oper- assemble and disassemble the Ka- operation instructions and additional gun, lashnikov machine five of which were atives to assist. located in the villa along with ammunition. al-Faq’asi, this introduction to Abu After Abu Ali informed Ahmad that he was directly connected” to the Ali “became tasked killing with the United Pres- States or “stopped seeing leader of the cell and ident. Abu Ali spoke also on at least one However, hearing from Sultan” Jubran. Nasser, occasion to Sheikh Ali al- a/k/a ... al-Faq’asi to meet in he “continued Khudair, “gave blessing who the and how to places” “diseuss[ed] various assassination of the President of the Unit- in carry assignment out the the [United ed States.” Ali, According to Abu he met States].” training, addition to the al-Faq’asi al-Faq’asi separate with on six occasions to provided Medina cell Abu Ali with finаnces operations such terrorist within the plan and equipment. given money He was In the course of United States. these buy laptop computer, a a phone, cell and suggested Ali assassina- meetings, Abu books, as well as written on materials se- of kidnappings tions or of members curity and methods of concealment. He Senate, United States the United States given memory was also a chip USB Administration, a Army, plan and the Bush clip during bombing included a taken at prisoners to rescue the Guantanamo Afghanistan which contained the voices Bay, plans up and to blow American war- pilots, American and tasked with trans- planes on United States bases and at Unit- lating recording into Arabic. ed similar to the Cole ports, States USS operation. Al-Faq’asi suggested opera- 6, 2003, May On Saudi authorities dis- bombings, tion similar to the but large weapons covered a stash of and ex- 9/11 originate planes departing in Arabia, which would plosives Riyadh, in which Saudi Britain or Australia for in Canada to be intended for suspected use requirements order to circumvent the of a country. terrorist activities within that country, United States visa to enter the following day, the Saudi plans Bush. to assassinate President a the 19 most wanted published list of regard presidential With to the assassina- individuals in connection with terrorist ac- tion, suggested possibilities: Abu Ali two tivity. al-Faq’asi The list included plot involving Ali, an assassination at least af- According Sultan Jubran. to Abu snipers upon three to fire the President published, al-Faq’asi ter the list was told martyr public operation while con- him that the villa location would be greet- ducted while the President was out changed Ali to a farm and Abu was taken ing public. stayed days. where he for several later, 12, 2003, days May al- plans
In the course of these and discus- Six on sions, Al-Faq’asi requested Qaeda Ali carried out a number of suicide Abu dormitory bombings Riyadh, killing approximately move out of the where he lived people including Ali that a resi- 9 Americans. That and advised Abu “suitable night, where Abu Ali and the other cell members dence” would be found he “could be manufacturing explosives, performed guard duty infor- at the cell’s safe- trained bombings, Abu Ali and gathering, forgery.” mation Abu houses. After Ali in a of the others moved to a second al-Faq’asi went with to live villa number where neighborhood neighborhood in Medina for train- villa in an al-Iskan al-Iskan subsequent although During questioning Abu days, three stayed for they authorities, informed al-Ghamdi night in the villa Saudi spend Ali did not Ali, villa that one their members was a Mabahith According to Abu the others. University Medina that contained dimly-lit room student “a contained background guns, European American or ... machine either phones, cell wires grenade.” went the alias “Reda” or “Ashraf.” ammunition, and a hand who pistol farm, investigative resulted in Further efforts Later, moved back group training in identification of Abu Ali as the photo continued his where *14 European received les- American or member cell. forgery. and He explosives (Mohammad al- Majid Salem sons from 8, 2003, Abu Ali was On June arrested seals, Ghamdi) removing forging and on University the Mabahith at the Islamic visas, and removing and photos, altering dormitory and room in Medina his was explo- on al-Faq’asi lessons received Among the items found there searched. sives, explosives, compounds. and making literature, device, jihad were a GPS a al-Hakmi, man, provided Umar Another talkie, passport, a a walkie United States wiring. and on fuses lessons card, passport and identification Jordanian 27, 2003, telephone, telephone and authorities with cellular a May 26 Nokia On name, al-Qahtani’s to raid containing Mabahith received orders notebook the Saudi jihad. in houses literature on Abu Ali was suspected terrorist safe and then several Medina, Al- including Riyadh, the house in the flown from Medina to where he safe interrogated by where Ali had received was the Mabahith. Al- Azhari villa Abu initially Among though retrieved he denied involvement with training.2 the evidence cell, al-Faq’asi house was an when during the search one safe he confessed pilot’s him English translation of an American Mabahith officers addressed with his Abu paper Spe- transmission and a with alias names of “Reda” and “Ashraf.” radio Ali cifically, alias names of “Hani” and Abu to his Ali’s additional confessed affiliation and, al-Qaeda The authori- particular, “Hanimohawk” written on it. with Medi- by al-Faq’asi. According recovered a of automatic na cell headed ties also number ammunition, fertilizer, Ali, joined al-Qaeda guns, rifles and Abu he cell “to grenades, operation cell which were and train an phones prepare hand for inside States],” well as being explosives, including converted to an “inten- [United cameras, walkie-talkies, la- prepare tion to train to kill the computers, [Unit- equipment minating identification ed President.” addition writ- States] confessions, A the al- cards. number members of ten the Mabahith obtained a during cell Faq’asi videotaped terrorist were arrested confession in which Abu Ali raids, al-Ghamdi, including had who admitted his affiliation with the Medina Ali, Nasser, who plans oper- trained Abu Sheikh cell and its conduct terrorist States, Ali for the given blessing including had Abu ations within presidential Al-Faq’asi plan assassination. to assassinate President Bush and Jubran, disguised destroy in women’s cloth- to this coun- Sultan airliners destined ing, escaped.3 try. part Al-Faq'asi
2. The Saudi Mabahith is
of the Saudi
3.
surrendered to Saudi authorities
in June 2003. Sultan Jubran was killed
Ministry
fight
of Interior.
is to
Its mission
September
shootout with Saudi authorities in
terrorism.
by the
B.
Following Abu Ali’s arrest
Saudi
authorities,
the FBI was notified of his
3, 2005,
February
grand
On
a federal
al-Qaeda
in the
cell
involvement
suspected
jury
against
returned
indictment
Abu
that the cell
and advised
Saudi Arabia
Ali. The Saudi officials surrendered Abu
conducting
op-
terrorism
planning
was
Ali to United States authorities and he was
Although
in the United States.
erations
flown back to the United States on Febru-
Ali,
access to Abu
requested
the FBI
ary
appear-
2005. He had his initial
request.
denied the
On June
Mabahith
ance
magistrate
before
United States
FBI
the Mabahith allowed the
judge
following day.
supersed-
In the
later re-
supply proposed questions, but
indictment,
jected
inqui-
the list and the breadth of the
Ali
ing
charged
ry sought. Ultimately,
the Mabahith
following
Conspiracy
offenses:
to Pro-
ques-
of those
agreed to ask Abu
six
vide Material Support and Resources to a
tions and to allow the FBI officers to Designated Foreign
Organization
Terrorist
responses through
one-way
observe
(al-Qaeda),
*15
violation of 18 U.S.C.A.
mirror. Abu Ali was asked whether he
(Count 1);
§ 2339B
Providing Material
(as
to
the President
was tasked
assassinate
Support
Designated
and Resources to a
by
to the
reported
had been
the Mabahith
Foreign
Organization (al-Qaeda),
Terrorist
Arabia,
FBI), when he arrived in Saudi
(Count
§
in violation of 18
2339B
U.S.C.A.
any planned
he knew of
terrorist
whether
2); Conspiracy
Sup-
to Provide Material
American, Saudi, or
against
attacks
West-
Terrorists,
port
to
in violation of 18
interests,
by
ern
whether he was recruited
(Count 3);
§ 2339A
Providing
U.S.C.A.
organization,
he had
terrorist
whether
Terrorists,
Support
Material
to
in violation
passports,
used false
and the nature of his
(Count 4);
§
of 18 U.S.C.A. 2339A
Contri-
Embassy.
in the
Other
position
father’s
al-Qaeda,
of
in violation
bution
Services
contact, the
than consular
United States
1705(b),
§
of 50 U.S.C.A.
31 C.F.R.
Ali
was denied all access to Abu
until
(Count 5);
§
Receipt
595.204
of Funds and
September of 2003.
al-Qaeda,
50 U.S.C.A.
Services
meantime,
16, 2003,
on June
(Count
1705(b),
6);
§
§
31 C.F.R.
595.204
FBI obtained and executed a search war-
Conspiracy to Assassinate the President of
Virginia.
rant
at Abu Ali’s home in
States,
§
the United
18 U.S.C.
1751
there,
Among
agents
the items found
(Count 7); Conspiracy to Commit Aircraft
printout
buddy
discovered a
of the
list of
46502(a)(2) (Count
Piracy,
§
49 U.S.C.A.
email addresses from MSN Hotmail ac-
8);
Aircraft,
Conspiracy Destroy
18
Ahmedabuali@hotmail.com,
count
which
32(b)(4) (Count 9).
§
U.S.C.A.
abumuslim99@
contained an address of
al-Qahtani,
hotmail.com for
an address
government
In March
filed a
al-Qahtani, a
containing
book
the name of
pursuant
motion
to Rule 15 of the Federal
praising
article
attacks
two-page
9/11
an
requesting
Rules of Criminal Procedure
country,
handguns magazine
in this
ad-
of
allowing
depositions
order
to conduct
Ali
a fea-
dressed to Abu
which contained
Arabian
in Saudi Ara-
the Saudi
witnesses
ture
on methods for the concealed
article
objection,
depo-
Abu Ali’s
these
bia. Over
carrying
handguns,
email mes-
July
sitions were taken in
sage from an unknown individual to Abu
25, 2005,
On October
the district
discussing opportunities
Ali
for Muslim
rejected
attempts to
subsequent
Abu Ali’s
fighters in the conflict
Muslim
between
deposition testi-
Chechnya.
prohibit
admission of the
rebels and Russians
trial,
he had a Fourth Amendment and
as
as his effort
well
mony at
his various
presentment
the introduction of
statutory right
prompt
be
suppress
made
officer,
and confession
judicial
statements
as
a neutral
such
fore
Mabahith,
Abu
States v.
see United
Saudi
magistrate,
federal
to deter
United States
(E.D.Va.2005), and
Ali,
F.Supp.2d
probable
supported
mine that
cause
jury on Octo
before the
commenced
trial
Pugh,
See
v.
U.S.
detention.
Gerstein
31, 2005.
ber
103, 125,
95 S.Ct.
Abu Ali contends that the court erred
time of that
collaboration. See United
jury
these state-
permitting
consider
Alvarez-Sanchez,
350,
States v.
511 U.S.
(1)
confessions,
and
he
ments
because
1599,
359-60, 114 S.Ct.
227 factual rejected by Abu Ali’s assertion made a defendant held in United States “working arrange- such a there was custody questioned by law enforce- ment” between Saudi and United States ment-officers without receiving Miranda law enforcement. warnings are inadmissible at trial in this testimony, hearing
After
two weeks of
Quarles,
See New York v.
country.
467
the district court found that
evi-
“[t]he
649, 654,
2626,
U.S.
81 L.Ed.2d
clearly
dence
demonstrates that the Saudi
(1984).
550
But because the United States
government arrested the defendant on cannot dictate
protections provided
8, 2003, in
June
Saudi Arabia based on its
by
criminal suspects
foreign nations and
interrogat-
own information and interest in
one of
principal purposes
of the exclu-
ing
suspected
defendant
member
sionary rule —deterrence of
police
unlawful
al-Faq’asi
terrorist cell located
activity
absent when foreign agents di-
—is
Ali,
Abu
Medina,
Saudi Arabia.”
395
interrogation,
rect an
a different rule ap-
F.Supp.2d at 381-82. The court further
plies to
statements elicited
offi-
foreign
engage
found that Saudi officials did not
Martindale,
cials. See
States v.
improper collaboration with the United
(4th Cir.1986) (“[T]he
790 F.2d
in effecting
States
Abu Ali’s arrest.
exclusionary rule has little or no effect
Ah
appear
dispute
does not
upon
foreign
the conduct of
police.”).
finding
district court’s factual
Thus, voluntary statements obtained from
participate
United States did
a defendant
foreign law enforcement
point
arrest
in Medina. Nor does he
officers,
even without Miranda
into question
warnings,
evidence
calls
that,
finding
district court’s
in the wake of generally are admissible. See United
May
bombings in Riyadh,
(2d
Yousef,
States v.
327 F.3d
independent
Saudi
had an
in- Cir.2003);
States,
Kilday v. United
in,
independently
terest
and in fact acted
(5th Cir.1973).
F.2d
in,
Moreover,
detaining
although
him.
he
*17
disputes
finding
the district court’s
that he
distinction,
Notwithstanding this
“pursuant
was held
to a Saudi
States law enforcement
United
officials
Ali,
Abu
order,”
382,
F.Supp.2d
he
may
intentionally
not
require
evade the
offered no credible evidence that the Sau-
ments of Miranda
by purposefully
dele
held,
hold,
or
him
dis
continued to
so that
gating interrogation
foreign
duties to
law
United States officials could evade their
and then having
enforcement officers
Accordingly,
constitutional duties.
we can
interrogation
fruits of the
admitted at trial
hardly conclude that
the district court
See, e.g.,
United
in the United States.
clearly
in finding
erred
that there was no
(2d
Maturo,
States v.
982 F.2d
“improper collaboration” between United
Anderson,
Cir.1992);
318 U.S. at
and
States
Saudi law enforcement. Be-
of.
(“There
cause United States law enforcement did
working
B. admissibility not affect the of the does they improperly evidence which secured officers.”). through collaboration with state We next consider Abu Ali’s Mi randa reason, challenge. Generally, exceptions For have de- statements two Ali six of voluntary the Mabahith asked Abu general rule that to the
veloped However, the Saudis questions officials submitted. by foreign obtained statements questions a rejected majority pro- without interrogation during a custodial FBI, by the a number and asked posed warnings are admissi- of Miranda benefit questions during interroga- their own not will be Namely, such statements ble. Furthermore, no FBI although or tion. by foreign officials if obtained admissible (2) agents present were other United States with, (1) or joint ain venture engaged interrogation in the room on June 15th or of, law States agents United acting as Ali, Abu FBI had direct contact with See, e.g., United officers. enforcement agents Service did observe Abu (5th Secret Heller, 594, 599 625 F.2d States v. through one-way interrogator Ali and his Maturo, at 61. Cir.1980); 982 F.2d see also and a during questioning, mirror Saudi answers to Ali contends that his Abu observing Unit- official consulted with the not 2003 should interrogation on June agents ed States at the end inter- because have been admitted into evidence recounting After properly view. these “joint ven- interrogation constituted that facts, that they the district court concluded interrogators his Saudi ture” between “joint venture” did not constitute be- officers, law enforcement United States interrogators Saudi tween United acted as the interrogators and his Saudi law enforcement officers. States law enforcement agents of United States questions prepared day, posing on that “joint The doctrine pro venture” and asked at its behest. the FBI elicited during vides “statements rejected both considered and district court interrogation by foreign police in overseas mo- denying pre-trial Abu Ali’s claims warnings the absence of must Miranda be all of suppress, holding tion to admissible suppressed whenever States United law his statements Mabahith. agents actively participate enforcement questioning foreign conducted authori the court’s dispute Ali does 145; Yousef, 327 see ties.” F.3d at also finding factual the United States Heller, (“[I]f F.2d at 599 American prior in his interrogation not involved foreign participated officials search 15th, confession June or his handwritten interrogation exclusionary ... or rule reading of that July videotaped 24th invoked.”); be should U.S. Bu that, therefore, Pfeifer confession Prisons, (9th reau 615 F.2d no duty States officials had to ensure *18 Cir.1980) (“Under joint venture doc warnings he received Miranda on those trine, through evidence obtained activities Thus, he only challenges occasions. officials, agents foreign in which federal warnings with provide failure to Miranda substantially participated and which violat on June respect to the statements taken the accused’s or ed Fifth Amendment Mi 15, 2003, argues 15th June rights, suppressed randa must be in a violation tainted his later statements. States.”). trial subsequent in the United 2. Only a few cases illuminate what consti- earlier, June prior partic- As mentioned to its tutes “active” or “substantial” Ali, at interrogation ipation. Yousef, 15th Abu the Saudi See 327 F.3d 144-46 en- (finding participation Mabahith allowed United States law no active when there propose questions forcement officers was no evidence that the United States sup- “encouraged, requested, be asked of the defendant. The FBI had or participat- 15th, plied and, questions, [suspect’s] interrogation a list of on June in or ed written
229 agents and United States did and were present suspect’s statement” at interroga- foreign tion); not receive statement from Trenary, States v. 473 F.2d suspect (9th Cir.1973) authorities until after was in Unit- joint (finding no Heller, custody); ed States 625 F.2d at venture officer, when American customs (finding joint 599-600 & n. 7 no venture who never identified himself as an Ameri- American when law enforcement was can agent, questions translated asked in “peripherally]” suspect’s involved ar- officers). police Mexican rest, suspect ques- Mimndized the when number, Although few in these him,
tioning
and did not exchange infor-
cases
permit
do
us to derive
general
one
mation
regarding
with British authorities
presence
rule: mere
at an interrogation
separate wa-Mirandized interrogation
does not constitute the “active” or “sub
British);
suspect by
Pfeifer,
615 F.2d
stantial”
participation
necessary
for a
(finding
at
no
participation
substantial
“joint venture,”
Pfeifer,
see
615 F.2d at
Drug
when
American
Enforcement
(D.E.A.)
but coordination and direction of an
Agency
agent
present during
investigation
does,
or
interrogation
see
interrogation, but
there was no evidence
Emery,
1268;
591 F.2d at
agent
Pfeifer,
see also
instigated any questioning
it);
(implying
F.2d
877 & n. 3
any part
or took
that had
United States v.
(9th
Cir.1978) U.S.
participated
officials
Emery,
suspect’s
591 F.2d
(finding
questioning
might
substantial
the court
face
participation when
a differ
case).
ent
A
agents
majority
American D.E.A.
contacted
of the court
Mexi-
would
can
affirm the
suspected drug activity,
holding
officials about
district court’s
that the
surveillance,
coordinated the relevant
June 15th
sup-
interrogation
joint
was not a
plied
personnel
sting operation, sig-
venture
and so there was no Miranda
appropriate
naled
time
suspects,
to arrest
violation.5
judge
One
believes that
arrest,
Judge
Judge
Wilkinson and
Traxler would
because "the Peruvian Police
[were]
made).
affirm the district court and hold that the
ultimate control” once the arrest was
interrogation
June 15th
of Abu Ali was not a
court,
considering nearly
The district
after
joint
joint
pro-
venture. The
venture doctrine
days
testimony,
fourteen
found that the
hibits American law enforcement officers
interrogation
June 15
did not constitute a
circumventing
protec-
States,
the constitutional
joint venture
the United
because
lack-
suspects
tions afforded criminal
who are in-
ing any investigative
authority,
control or
did
terrogated by foreign
"actively”
officials when the Unit-
"substantially” participate.
possesses
significant degree
ed States
finding.
We affirm this
investigative
authority.
pur-
control or
begin,
played
This
To
the United States
no role
underlies,
informs,
pose
Ali,
the "active” or
in the arrest or detention of Abu
and the
participation
typically
government
"substantial”
complete
standard
"Saudi
was in
control
See,
Ali,
joint
custody.”
utilized in
venture determinations.
of Mr. Abu Ali while in
Likewise,
e.g., Emery,
(finding
F.Supp.2d
June
rights.6
States law enforce-
ture in which United
above,
asked,
the reasons
the
questions
be
determined
Because for
noted
would
what
interrogation,
length
were
of
questions, and
the
Saudis
in control
the
the
of the
set
form
fact,
they
acting
agents
In
the Saudi
likewise were not
of the
interrogation.”
Id.
of the
majority
the
We
would af-
interrogators
ask a
of
United States.
therefore also
refused to
States,
finding
by
and
firm the
court’s
"that Saudi
questions
the United
district
submitted
during
'agents’
questions
did
act as
the United
their own
officials
not
asked a number of
of
arrest, detention,
interroga-
interrogation.
States in the
the
Ali,
sum,
F.Supp.2d
always
[Abu
in control
tion of
Abu
at
Ali].”
the
were
395
In
Saudis
us,
investigation.
as it was
383.
It is clear to
course,
court,
degree,
never
Of
the matter is
of
that the Mabahith
one
to the district
impose proper
American
must
safe-
mouthpiece
a
or mere conduit
courts
acted as
counterparts.
guards
these
Based on
on the admission of evidence in their
their American
convinced,
proceedings.
district
findings, we
as was the
own
None
our
are
of
discussion
court,
suggests
offi-
that American law enforcement
for a
that
relax
moment
courts
their
trying
voluntary
"evade the strictures
cials were not
insistence that confessions must be
Miranda," Martindale,
231 convicted before the June 15th interroga result, tion took place. As a Abu Ali’s if the district court erred Even questions by answers to the submitted statements made dur refusing suppress to FBI on June 15th were cumulative. See interrogation, 15th we all ing June Seidman, 542, States v. United 156 F.3d agree that this error was harmless. (4th Cir.1998) (“ ‘Improper admission any evidentiary ruling, Like other of evidence which is cumulative of matters subject we the district court’s error by shown admissible evidence is harmless admitting the statement to harmless error ”) (quoting error.’ Smith v. Firestone Tire 52(a) (“Any review. Fed.R.Crim.P. See Co., (8th & Rubber 755 F.2d Cir. error, defect, irregularity, or variance that 1985)). are thus confident that We rights does not affect substantial must be admission of responses Abu Ali’s erroneously disregarded.”). Evidence ad questions substantially June 15th did not deemed if a re mitted will be harmless sway Therefore, the jury any verdict. er viewing “say, court is able to with fair in admitting ror these statements was assurance, pondering hap after all that harmless. pened stripping without ac erroneous whole, judgment tion from the C. substantially swayed by was not the er States, ror.” Kotteakos United 328 U.S. Abu Ali next claims that all of 750, 765, 90 L.Ed. S.Ct. 1557 his statements and confessions while in (1946); Brooks, United States v. 111 F.3d custody Saudi sup should have been (4th Cir.1997). Here, are we able pressed involuntary. The district court assurance, say, jury’s to with fair that the rejected argument, finding judgment substantially swayed by was not by ‘pre had “demonstrated the admission of Abu Ali’s answers to the ponderance any of the evidence’ that in questioning. June 15th criminating statements” made Abu Ali because, custody July, while in Saudi in June and
This is so as the district court properly recognized, “voluntary” Abu Ali had confess- were and so admissible Ali, F.Supp.2d ed to each the crimes of which he was at trial.7 Abu at 342. apply any portion interroga- rights simply by having foreign an overseas law enforce- is, form, questions. tion that in fact or conducted U.S. ment ask the This officers cannot enforcement.”) (dicta). all, Rather, pur- law After be the law. when United law States pose interrogation of an is to obtain answers provide questions enforcement officers questions about criminal or otherwise dan- suspect by cooperating foreign be asked of a gerous Drafting questions activity. posed officials, they clearly law enforcement have suspect quintessential thus constitutes engaged partic- in “active” or "substantial” participation interrogation. in an It differs in ipation interrogation such that resultant interrogation, kind from observation of an joint Consequently, becomes a venture. when interrogator’s questions rote translation of an given suspect has not been Miranda warn- suspect’s responses. and a Observers and ings, responses interrogation to that undoubtedly gain important translators infor- suppressed. should be suspect's mation from a answers as well as demeanor, presented from his behavior but those 7. Abu Ali also his evidence and during questions formulate the asked contentions as of his con- who voluntariness interrogation actually underlying jury, direct the fessions to the which could draw its own investigation. jury conclusions. Since the found Abu Ali permits guilty charges, presumably all also re- To hold otherwise United States jected any strip law officers to claim that statements were enforcement involuntarily given. States citizens abroad of their constitutional *21 232 “it of the court to warnings un for is the role district are
When Miranda
and
their credibil-
interroga
weigh
observe witnesses
necessary, as
the case of
officials,
ity during
pre-trial
suppress.”
motion to
vol
foreign
we assess the
tion
1161,
Murray,
v.
65 F.3d
United States
of
statements
untariness
a defendant’s
(4th Cir.1995).
1169
confession
“the
asking
is
whether
essentially free
uncon
of an
and
product
case,
hearing nearly
In
after
four-
v.
by its maker.” Culombe
choice
strained
testimony,
days
teen
of
the court issued
Connecticut,
568, 602,
S.Ct.
367 U.S.
81
analyzing
opinion describing and
113-page
(1961).
is,
If
1860,
it
“it
The district court
rested
reasons,
personal
Abu Ali’s
characteristics
legal
its
conclusion that Abu Ali’s state
particularly
did not render him
susceptible
voluntary
ments were
on its factual find
pressure.
to coercion or
ings concerning his claims of torture and
thorough
abuse. Our
review of the record
addition,
In
rejected
the district court
provides
finding
no basis for
clear error in
testimony
Abu Ali’s
that the Saudis sub-
This, however,
findings.
of those
does
jected him to coercive conditions of con-
inquiry.
not end our
must
We
evaluate
Instead,
finement.
court found
believ-
the voluntariness of Abu Ali’s confessions
testimony
able the
Saudi officers
novo, looking
totality
de
they
Ali
confined Abu
under reasonable
circumstances to determine whether his
conditions,
including provision of three
Schneckloth,
will was “overborne.” See
bed,
day,
and a
meals
cell with
blanket
U.S.
cient, independent of the in [defendant’s statements,
criminatory]
to establish the
B.
Id.;
Sun,
corpus
Wong
delicti.”
see also
Undoubtedly, Abu Ali’s own re
489,
(noting
convictions because the defendant’s confes- The evidence of- sions or admissions constituted the fered meets this stan- linking evidence him to criminal conduct. dard. Stephens, (noting
See
part of IV. suppress Ali’s motion to hearing Abu videotape depo- and a of the his confession Abu Ali’s claim We next address (as pursuant to the court’s of the sition redacted taking depositions that the of the present. See United States v. Although under the defendant Abu Ali raises no claim 916, Cir.1998); (9th 15, Medjuck, 156 F.3d 920 does use the Rule to Fed.R.Crim.P. he 1, McKeeve, (1st 131 F.3d 8 argument. United States v. his Confrontation Clause inform 1997); Gifford, F.2d many Cir. United States v. 892 simply that As to Rule we note (3d 1989); United States v. Sal 265 Cir. into evidence Rule 15 circuits have allowed im, (2d 1988). 952 Cir. foreign without 855 F.2d depositions of witnesses taken
239 order) played part custody at trial and made shals to maintain of Abu Ali while in Saudi Arabia. Medjuck, the trial record. See 156 F.3d at (noting
920
that there was no mechanism
B.
place
in
for United States authorities to
ensure the defendant’s return in a “timely
claims that his Sixth Amend-
fashion”
from a foreign deposition);
right
ment Confrontation Clause
was vio-
McKeeve,
(noting
wanted
traditionally
amend. VI. This clause
af
Having
procedures,
fashioned these
“the defendant a
meeting
fords
face-to-face
days of
presided
court
over seven
district
appearing
with witnesses
before
trier
testimony
Saudi
deposition
from several
1016,
Coy,
of fact.”
108 S.Ct.
U.S.
arrest,
in the
Mabahith officers involved
However,
right
of the defendant
detention,
Ali.
of Abu
interrogation
physically
confront
witnesses
matter
en-
subject
depositions
of the
against him is not absolute.
experi-
compassed
aspects
all
of Abu Ali’s
justice sys-
with the Saudi criminal
836,
ence
Maryland
Craig,
v.
497 U.S.
arrest,
tem, including the
of his
manner
3157,
(1990),
S.Ct.
L.Ed.2d 666
length of his
the condi-
interrogation,
Supreme Court
that a district
held
confinement,
Mabahith’s
tions of his
may constitutionally
testimony
admit
taken
and the circum-
questioning,
methods
physical
in the
absence of the defendant so
surrounding
stances
confessions.
his
long
as two conditions are met.
Id. at
First,
D.
was
or “hurt us.” Abu Ali contends that this
the fact that
None of this diminishes
improperly placed
jurors
formulation
the
a critical
confrontation is
face-to-face
in
of people
the class
who could be harmed
defendant’s Sixth
component
improperly
Abu Ali’s actions and
right.
judges
But district
Amendment
aligned
prosecutor
jury
with the
aas
challenged to make the
are sometimes
victim.
potential
circumstances.
unprecedented
best
certainly
context here was
unusual:
The
that
prosecutor’s closing
We hold
beyond the
Mabahith officers were
argument
improper.
was not
Each side
subpoena power and the Saudi
court’s
in
presentation
deserves latitude
of its
al-
decidedly
was
reluctant to
closing remarks and courts do not exist to
to the United States.
low them
come
superintend
arguments.
these
See United
defendant,
turn,
eager
in
(4th
Scheetz,
States
293 F.3d
Arabia, and,
event,
go to Saudi
Cir.2002)
that
(noting
prosecutorial mis-
associated
significant
there were
risks
if
conduct is
unconstitutional
it “so
doing
him
so.
the trial with unfairness as to
infect[s]
resulting
make the
conviction a denial of
here,
roadmap
There was no clear
(internal
process”)
quotation
due
marks
balance
Craig anticipates that a reasonable
omitted).
context,
prosecu-
Taken
that
be struck. Given the limitation
must
tor’s comments were not directed to the
face-to-face confrontation between the de-
jurors personally and were intended to
and the Saudi officers was not
fendant
populace.
refer
to the entire American
feasible,
judge
the trial
fashioned confron-
Moreover,
prosecutor’s
remarks were
the de-
procedures
preserved
tation
response
to the de-
partly
isolated and
to the maxi-
right
fendant’s constitutional
And,
if
closing.
pros-
fense’s own
even the
possible.
mum extent
The trial court’s
improper,
ecutor’s
were
which
comments
infringed no Sixth
conscientious effort
intimate,
possibili-
do not
there is little
we
right.
Amendment
strength
government’s
of the
ty, given the
evidence, that
comments could
two brief
V.
effect on the
disproportionate
have had
Abu Ali raises various additional claims
reject
jury’s verdict.
thus
the defen-
We
summarily.
which we resolve
dant’s claim.
First,
Ali
Abu
contends
Next,
argument improperly
argues
Abu
government’s closing
(SAMs)
During
Special
him a fair
sum
Administrative Measures
denied
trial.
mation,
improper
on him constitute an
prosecutor
imposed
twice referred to
are
planned
victims of
Ali’s
additional sentence. SAMs
restric
potential
in the
person plural,
placed
prisoner
in the first
tions
on a
interests
terrorist actions
degree
impli-
"case-specific finding that the witnesses and
ent
both kind and
from those
cating
security
placed
the national
interests here.
the Defendants could not be
in the
taking
pretrial deposi-
same room for the
Furthermore,
the Eleventh Circuit’s refusal
testimony pursuant to Rule 15.” Id. at
tion
necessity
to find
was the direct result
course,
testimony
case the
1317. Of
in this
potential
court’s failure to consider
district
taken in a Rule 15
the Mabahith officers was
the wit-
alternatives that would have enabled
deposition, using procedures
specially de-
testify
nesses to
face-to-face with the defen-
specifically
signed
court to deal
particular,
Eleventh Circuit
district
dant.
questioned why
with the necessities of this case.
the district court made no
*32
244
(1942)).
60, 80,
case,
of national
evidence is
inquiry,
For this
substantial
Ali
that Abu
recommended
torney General
that a reasonable
media,
defined as “evidence
mail,
access
be denied
accept
adequate
could
as
and
finder of fact
that he could
visitors so
and
telephone,
of a de-
support a conclusion
sufficient to
communicate,
directly or indi-
either
not
beyond a
guilt
reasonable
fendant’s
jail.
outside
terrorists
rectly, with
Burgos,
v.
94 F.3d
doubt.” United States
imposition of
Abu Ali contends
banc).
(4th Cir.1996) (en
849, 862
solely on his of-
was based
these SAMs
therefore, invalid,
conviction, and,
fense
standard,
reject ap-
we
light
of this
right to
have the exclusive
courts
since the
counts were
pellant’s claim. The relevant
on the defendant.
a sentence
impose
in-
jury
proper
to the
under
submitted
delineating their elements
structions
jurisdiction to consider
have
We do not
ade-
question
raises no
about the
appellant
prescribe
regulations
this claim. Federal
have
quacy of those instructions here. We
may
appeal
inmates
a mechanism which
counts and we find
reviewed the various
501.3(e), and,
SAMs,
see 28 C.F.R.
sup-
that there exists sufficient evidence to
found, the defendant has
the district court
jury’s
The discussion
port
verdict.
this mecha-
yet
advantage
taken
opinion
undertaken earlier
reveals
Ali,
nism,
v.
396
States
see United
jury had before it the evidence
that the
(E.D.Va.2005).
703, 707
F.Supp.2d
just
proper
verdict
needed to render
his administrative
defendant must exhaust
in this case.
challenging the SAMs
remedies before
v. You
United States
federal court. See
VI.
(2d Cir.2003);
sef, 327 F.3d
Yousef
challenges
Ali
Abu
also
(10th
Reno,
1214, 1221
Cir.
v.
254 F.3d
handling
district court’s
of certain classi
2001).
provisions of
fied information under the
sufficiency
Ali
Finally, Abu
contests
Procedures Act
the Classified Information
support his convictions
of the evidence to
(West
(“CIPA”),
U.S.C.App.
§§ 1-16
Four,
Three,
and Seven.
on Counts
primary
&
Abu Ali’s
Supp.2007).13
Ali
charge
Three and Four
Counts
is that the district court violat
contention
conspiracy
provide,
and the actual
Amendment Confrontation
ed his Sixth
of,
support
material
and re-
provision
rights by admitting as evidence
Clause
sources
to terrorists.
Count Seven
unredacted versions of two classified docu
conspiracy
to assassi-
charges Abu with
permit
Ah
ments that Abu
had
been
of the
States.
nate the President
form,
in a redacted
ted to view
jury’s
Abu Ali
his lead trial
refusing
owe
to a
ver
to allow
We
deference
sufficiency
participate
counsel to attend and
reviewing
dict when
to discuss
upheld
hearings
must be
conducted under CIPA
“conviction[ ]
evidence:
evidence,
Additionally, Abu
taking
if
the classified evidence.
‘there is substantial
Government,’
denial of
challenges
to Ali
the district court’s
view most favorable
govern
Moye,
post-trial
compel
454 his
motion to
support
United States
[it].”
(4th Cir.2006) (en banc)
ment to disclose whether the National Se
F.3d
States,
curity Agency’s warrantless electronic sur-
(quoting
v. United
315 U.S.
Glasser
raised,
ings
panel.
separately
before this
13. These issues were
via
argued
proceed-
classified briefs and
closed
commonly
equate
right
referred to
to a
to have classified infor-
program,
veillanee
*33
prior
mation disclosed to him
to trial. Ev-
Program, re-
the Terrorist Surveillance
identiary privileges may serve as valid bas-
in
any interceptions
in
used
the
sulted
types
es to block the disclosure of certain
prosecution
of him.
investigation
evidence,
validity
and the
privi-
of
of such
A.
leges may
be tested
in camera and ex
parte proceedings before the court “for the
guaran
The Sixth Amendment
purpose
determining
limited
whether
prosecutions,
all criminal
the
tees that “[i]n
the
privilege
genuinely applica-
asserted
enjoy
right
...
to be
accused shall
rule,
general
ble.” Id. As a
the court
“[i]f
against
confronted with
witnesses
privilege
finds that the claimed
not
does
Const,
Its “main
him.” U.S.
amend. VI.
apply, then the other
given
side must be
...
for
purpose
and essential
is to secure
access to the information.”
Id. If the
opportunity
of cross-ex
opponent
privilege
court finds that the
apply,
does
Arsdall, 475
amination.” Delaware v. Van
may preclude
then it
access to the infor-
1431,
673, 678, 106 S.Ct.
89 L.Ed.2d
U.S.
But
mation.
neither scenario results in
(1986). However,
right
674
“means
upon
the conviction of a defendant “based
being
than
to confront the
more
allowed
permitted
evidence he was never
to see
physically.”
principal
Id. “[T]he
witness
and to rebut.” Id.
evil at which the Confrontation Clause
mode of criminal
directed was the civil-law
security
the area of national
of ex
procedure,
particularly
its use
government’s privilege
protect
and the
to
against the
parte examinations as evidence
public
classified information from
disclo
Washington,
accused.”
v.
541 sure,
Crawford
appropriate
we look to
CIPA
36, 54,
1354,
124
158 L.Ed.2d
U.S.
S.Ct.
v.
procedures.
Mejia,
See United States
(2004). Thus,
177
while this is not the
(D.C.Cir.2006)
(noting
448 F.3d
455
case,
think
criminal
ordinary
we
defen
clarify
that CIPA was “intended to
a
right
to confront witnesses neces
dant’s
existing powers
court’s
under Federal
to
sarily encompasses
right
also see
16(d)(1)
Rule of
Procedure
Criminal
any documentary evidence that such wit
(internal
information”
protect classified
“
support
at trial as evidence to
nesses offer
omitted)).
cre
quotation marks
‘CIPA
Reagan,
a conviction.
Abourezk v.
Cf.
regarding
ates no new rule of evidence
”
“
(D.C.Cir.1986) (“It
is a
F.2d
admissibility,’
procedures it
but
‘the
adversary system
hallmark of our
that we
protect
government privilege
mandates
a
”
evidence ten
safeguard party access to
(quoting
in
Id.
classified information.’
support
requested
dered in
of a
Yunis,
States v.
867 F.2d
judicial pro
judgment.
openness
(D.C.Cir.1989)).
ap
both the
ceedings
preserve
serves to
by Congress
“enacted
in an
Originally
reality
and the
of fairness
pearance
problem of
growing
effort to combat the
adjudications
courts.
It
of United States
criminal
graymail,
practice whereby
main
firmly
is therefore the
held
rule
threatens to reveal classified in-
defendant
may
dispose
a court
not
of the merits of
during the course of his trial
formation
ea; parte,
case on the basis of
in camera
forcing
government
drop
hope
submissions.”).
him,”
charge against
United States
Cir.1985)
(4th
Smith,
right
A
to see the
780 F.2d
defendant’s
(footnote omitted),
pro-
against
him dur
CIPA establishes
evidence
is tendered
trial, however,
information
necessarily
protect
classified
ing
does not
cedures
must noti-
The defendant
disclosure,
play.
come into
including disclosure
public
attorney
the court
fy
government’s
they
if
do
and his counsel
ato
defendant
such
writing
intention to disclose
security
requisite
clear-
possess
prohibited
and is
from disclos-
information
CIPA,
“the
ance. Prior
until “the United
ing the information
evaluating such disclo-
had no method
op-
afforded a reasonable
States has been
actually began”
trial
sure claims before
pursuant
determination
portunity to seek
pros-
... would abandon
and “[o]ftentimes
,
6 of
procedure
set forth
section
*34
disclosure
possible
risk
rather than
ecution
[CIPA],”
appeal any
ruling.
to
adverse
es-
Id. “CIPA
information.”
of classified
hearing,
§
At
the district court
Id.
the
6
making
for
decisions
procеdures
tablishes
objections to
government’s
the
considers
information.” Unit-
the use of such
about
relevance,
use,
admissibility of
“the
or
(4th
Fernandez,
247 Smith, 1108; procedures tion.” 780 F.2d at CIA provides 8 of CIPA Section cf. Sims, 159, 1881, v. U.S. 105 S.Ct. informa- the introduction classified (1985) (“The 85 L.Ed.2d trial, providing into evidence tion compelling protecting has a interest court, unneces- prevent in order to “[t]he secrecy both information our in- of classified information sary disclosure security and appearance national may proceeding, criminal volved confidentiality so essential to the effective only part into admission evidence order of our operation foreign intelligence ser- [document], or admission may order of a vice.”) (internal omitted); quotation marks of the whole [document] into evidence Haig Agee, U.S. of some or all of the classified excision (1981) L.Ed.2d 640 (noting therein, contained unless the information governmental compel- “no interest is more ought in fairness considered.” whole be Nation”). ling security than the But 8(b). 3, § It also affords U.S.C.App. governmental privilege, and indeed re- to monitor the latitude district *35 qualified is “a sponsibility, nonetheless “safeguard of witnesses to examination way in sense give one” the that it must compromise the of classified against [the] “ when the information ‘is relevant and 8(c).16 § 18 U.S.C.App. information.” accused, helpful to the defense an or is these demon provisions As to a fair of a essential determination ” strate, vests courts with Smith, CIPA district 780 (quoting cause.’ F.2d at 1107 623). thorny problems Roviaro, deal 60-61, latitude to at wide 353 U.S. 77 S.Ct. security in of crimi Specifically, national the context the proceedings. evaluating nal When court is required trial to balance [t]he infor privilege in classified governmental public the interest in nondisclosure protect, how mation which CIPA serves prepare the against right defendant’s ever, ultimately courts bal district must A a defense. decision on disclosure of in “public protecting depend ance this interest information on the such must case, against right of each “particular information the individual’s circumstances Smith, into the crime taking F.2d consideration prepare his defense.” 780 defenses, possible charged, pos- test “infor (adopting applied at 1105 to the [evidence,] significance sible in privilege” mant’s Roviaro v. United other relevant factors.” States, 53, 62, 1 77 353 U.S. S.Ct. (1957) one to appropriate
L.Ed.2d 639 as Roviaro, (quoting 77 Id. 353 U.S. government’s infor 623). evaluate the classified If the district court determines S.Ct. see F.3d privilege); Mejia, mation also 448 information to the de- helpful that the “is (same). accused, has a government at 455 “The an to a fair fense of is essential cause,” interest sensitive of a it must be ad- protecting substantial determination Fernandez, Id.; F.2d at methods informa- mitted. see 913 gathering sources and response appeal." 18 whether the is admissible court for use in event of an mine 3, 6(d). § U.S.C.App. against any safeguard compromise of will may action in- classified information. Such "During of a witness examination provide requiring clude United States proceeding, the United States criminal proffer re- with a of the witness’ the court may object any question inquiry or line of inquiry question sponse to the or line may require clas- the witness to disclose requiring provide the court the defendant to be previously information not found to sified proffer of the the information with a nature of Following objection, admissible. such 8(c). U.S.C.App. § elicit.” he seeks to 18 deter- court shall take such suitable action to 248 may F.2d at 1108. The “district court must “take into ac- the court
154. While the information protect- order disclosure when interest government’s count the defense, neces- security,” have made clear is at least essential we ing national defense, sary merely and neither override the de- to [the] interest cannot that “this corroborative, Fernandez, specula- cumulative nor nor a fair trial.” right to fendant’s (internal 154; quotation Id. at 1110 States v. tive.” F.2d at see also United 913 omitted). (4th But if the Moussaoui, n. 18 marks and citations F.3d Cir.2004) (“There necessary showing is made and “no ade- question no that the found, quate gov- securi- substitution can be cannot invoke national Government ernment must decide whether will depriving [the [con- a means of ty concerns as trial.”). prohibit most tinue the disclosure of the to] of a fair As we defendant] information; so, Moussaoui, if it classified does recently observed sanction, impose court must district type falling In all cases of this —cases presumptively which is dismissal loosely called the might be into “what (citing U.S.C.A.App. indictment.” Id. constitutionally guaranteed ac- area of 6(a)). sum, “enjoins CIPA district evidence,” Young- Arizona v. cess to courts to seek a solution that neither dis- 51, 55, blood, 488 U.S. advantages penalizes the defendant nor (1988) (internal quotation L.Ed.2d 281 (and public) pro- omitted) Supreme Court has marks —the tecting may classified information that be right to a trial held that the defendant’s *36 security.” vital to national Id. at 477. with the Fifth and Sixth comports govern- over the prevails Amendments C. Ultimately, privilege.
mental
as these
clear,
proce-
appropriate
cases make
mind,
principles
these
we turn
With
for the district court to order
dure is
to
first
Abu Ali’s Confrontation Clause
production of the evidence or witness
challenge
government’s
to the
introduction
the choice
and leave to the Government
unredacted,
at trial of two
classified docu-
comply
that order.
of whether to
with
ments that memorialized communications
produce
If the
refuses to
Government
Ali in
between Sultan Jubran and Abu
may
it
prop-
the information at issue-as
days following
May
2003 safe house
erly
ordinarily
do—the
dismiss-
result is
by
raids conducted
the Saudi officials in
al.
Medina, as well as to his exclusion from
Moussaoui,
if the district court the ex- discretion, begin ercise of its that an item of We with some additional back- indicted, ground classified information is relevant and mate- facts. After Abu Ali was rial Attorney Attorney to the defense “that item must be Khurrum Wahid and providеs the government appeared represent admitted unless Ashraf Nubani him. (cit- However, adequate an at 476 apply substitution.” Id. because one failed 6(c)(1)). ing U.S.C.A.App. security To clearance and the other was Justice, governmental privilege, approved by Department overcome the “the attorney come some- defendant must forward with neither was authorized to view thing speculation more that as to the use- September the classified documents. On Smith, 8, 2005, court, fulness of such disclosure.” informed that district security was a involve national children’s sickness” coded reference the case would and antici- proceedings by to the raids conducted the Mabahith interests CIPA attorney with Abu Ali’s need for and the arrest of the Medina cell pating mem- clearance, security appointed proper bers. The second declassified document Ginsberg to act as CIPA- Attorney 6, 2003, Nina J. was dated June and read fol- Abu Ali.17On October cleared counsel for lows: 14, 2005, government produced first brother, my you To Peace with God’s docu- copies unredacted of the classified God, mercy blessings. Thank I am Ginsberg informed her ments to Ms. fine. I was saved the accident to introduce the docu- intended I that I great miracle. ask God would However, as evidence at trial. ments be thankful to Him. I have no idea about Ginsberg that it advised Ms. government However, according the others. to what to seek “cer- proceed
would under CIPA mentioned, one doctor Adil not with disclosure that public tain limitations on them, thank important thing God. The necessary to the revelation prevent will be get yourself ready for the medical in- extremely security national sensitive checkup you may ap- because have an formation.” ACA Therefore, pointment you soon. must later, days government pro-
Three keep yourself ready refraining from Ali’s uncleared defense counsel vided Abu eating high fat meals and otherwise. the classi- slightly copies redacted regard SCA 109. With to this communica- documents, which it described as fied tion, intended demon- “newly communications be- declassified strate that the term “accident” was also and Sultan Jubran tween defendant coded reference to the safe house raids. al-Qahtani occurring May Sultan theory, According government’s Sul- 6, 2003,” in their Arabic and June advising tan Jubran was that he translations, English versions and with did not know which cell members had es- *37 “in- government’s counsel of the advised caped captured, and which were but that to offer these communications into ten[t] (a/k/a “Adil”), had es- al-Faq’asi he and proof at trial as that the defen- evidence might that Ali caped, warning Abu al-Qae- to provided support dant material also be at risk. 107. The first declassified doc- da.” SCA and un- A of the classified comparison 27, 2003, May read ument was dated the documents reveals that de- classified follows: dates, the provided versions the classified Peace, you your How are and how is salutations, opening the entire substance they good. I family? hope I are heard communications, closings, the and the the news the children’s sickness. about lightly to omit and had been redacted speedy recovery, I wish them God informa- identifying certain and forensic keep in touch. willing. Anyway, please tion. Greetings group, to the Hani. 19, 2005, government On October government 108. The intended SCA camera, pursu- motion parte filed an in ex demonstrate that “Hani” was known CIPA, seeking protective § ant to 4 of alias of Abu Ali and that “news about the produced,” district court subsequently material ACA the Although Abu Ali asked that 17. Ginsberg's appearance upon repre- be entered "for imposed Ms. limitation her no such assisting purpose of the defense the limited sentation. presentation with the review and of classified Ali was motion. Abu consider Abu Ali’s testimony and lines of prohibiting order hearing, repre- but was present at the lead to the disclo- not that would questioning counsel, who by his during information sented CIPA-cleared of the classified sure client and § 4. The of her U.S.C.App. objected to the exclusion the trial. See counsel, por- but did not that the classified other uncleared advised government object could not be to the use of the declas- specifically communications tions of the or to the Ali and his uncleared of the document to Abu sified version provided highly procedure. contained sen- witness” they of the “silent counsel because use issue, which, in a joint if confirmed regard to the venture information With sitive divulge information that advised the court setting, government would public prior security interests. were obtained to national communications detrimental officials, govern- by but granted court Abu Ali’s arrest Saudi The district camera, parte, on intelli- by they ex obtained “based ment’s motion were However, gov- court collecting by district the United States gence sealed order. could use the whatsoever States no involvement ruled that ernment with the classi- The rule” to disclose authorities.” ACA 19-20. “silent witness of Saudi jury at trial.18 communica- information to the court found that the fied district independently were discovered tions with a immediately responded Ali Abu and, investigation government’s the Saudi declassify the government that the motion therefore, joint of a product were not the entirety ordered or be documents their The district court also concluded venture. commu- dates on which the provide declassified, redacted version obtained nications were Ali provided to Abu “me[t] the documents they ob- in which were and the manner need for access to the infor- the defense’s request, purpose tained. stated mation.” ACA however, that Abu Ali was not to contest communications, but to party was a commenced, Ali trial Abu moved After Abu Ali to ascertain whether enable pursuant 5 of CIPA allow the existence government had discovered gov- the two question uncleared counsel to prior to Abu Ali’s of the communications slated to introduce the ernment witnesses so, If arrest officials. Saudi of the classified communications substance rely upon this fact to demon- sought to in extract- into evidence “about their role he made to the strate each confession handling ing, sharing, transferring, *38 joint of a product officials was the Saudi communications.” ACA 35. See 18 [the] enforcement venture with American law U.S.C.App. § 5. The first witness was and, therefore, inadmissible. compliance manager and custodian of the the legal department for the of the district court records On October and the hearing to communications carrier involved conducted an in camera CIPA response places to in cific in the document in 18. The "silent witness” rule was described Zettl, 1059, 1063 questioning. jury United States v. 835 F.2d then refer to The would (4th Cir.1987), as follows. particular part of the document as the the method, By witness would not disclose the infor- the [T]he answered. witness mation from the classified document in would not be made classified information Instead, open court. the witness would public the would be able at trial but defense copy be- have of the classified document present the to that classified information to court, jury fore him. The counsel and the jury- copies would also have of the classified Id. spe- refer to document. The witness would duty “to resolve that the responding question the of defense person tasked with Foreign might reliability the Intelli- have the to issued about of the orders (“FISA”) Act gence process handling Court. the Surveillance extraction or of it.” Special Agent with the second was ACA 55-56. Public of cross-examination FBI, the who received information compliance manager. the about the sub- manager. Because this compliance communications, of the stance fact that of lead to disclo- questioning line would they warrant, pursuant were collected to a information, gov- sure of the classified and the she could extent to which connect the motion. On opposed ernment Novem- Ali, the communications to Abu and of the 9, 2005, court ber the district held another Agent FBI about how the information was hearing in camera with CIPA-cleared de- received, managed, kept the chain fense but present counsel absence custody, by uncleared counsel was oth- Abu Ali and his uncleared counsel. 18 erwise unrestricted. 6(a) U.S.C.App. (providing for such motion, ruling In upon the the district use, camera to determine “the proceedings expressly considered Abu Ali’s rights relevance, admissibility of in- or classified Clause, under the but Confrontation ruled that would otherwise be made formation infringed these rights werе not be- during pretrial proceedings”). the trial or cause Ali and his uncleared counsel The district court denied Abu Ali’s motion given “know about and have been the sub- prohibits revealing such “because CIPA stantive of the contents communications” public” to the classified information opportunity and would “have the to cross- counsel is under “uncleared defense barred examine the carrier repre- communications receiving, eliciting CIPA from testimo- agent FBI regarding sentative and the reveal, ny likely classified infor- will substance those communications.” ACA so, doing mation.” dis- ACA 36. 37; also that “the (noting see ACA 54 issue trict that “the court also noted defense’s reliability of the collection of the attempt government force the to unnec- significant database ... not of mo- [was] essarily the means disclose and methods ment to reveal classified have to informa- gather government used to this classi- tion” about communications how the were may ‘greymail,’ fied information amount to extracted). collected ACA 54. Addi- which was intended to prevent.” CIPA tionally, Abu Ali had CIPA-cleared counsel 37-38; (noting ACA see also ACA question these permitted who would “be government “requir[ing] pain hearing in camera witnesses in a closed puni- dismissal of the indictment or other collection, extraction, storage, about concerning tive how the data measures transfer, sharing, receipt, handling, or ... mail” grey
was extracted which is ... com- custody relating chain “exactly thing the kind of that CIPA is munications ACA 37. at issue.” ie., supposed prevent prevent,” forcing defense from hearing held At the camera the fol- *39 reveal information and “run the classified day, lowing counsel con- CIPA-cleared methods, risk of means and exposing thorough ducted a and unrestricted cross- gathering intelligence source of informa- compliance manager examination of the information”). foreign intelligence tion and raised, regarding found it the issues but unnecessary the FBI
Nevertheless, question agent. to district agreed the then Abu Ali’s uncleared counsel returned to in camera next hearing conduct an the broadly rather to the courtroom and ob- day, time CIPA-cleared counsel which jected process the “to with the question would witnesses this whole be allowed However, short, counsel was of the view that the 140. ACA CIPA material.” designation was “a bit of a objection not on the classification the counsel focused putting on” that receiving “den[ied] un- show that we’re jury would be fact that the right to my client his Sixth Amendment redacted, versions of documents classified evidence, choice of attor- to Abu Ali confront the provided that had not been attorney have his conduct a ney the fact that and to rather on personally, but attorney in a manner that that ap- proceeding prohibited they personally were words, 140. In other un- hearing and that the sees fit.” ACA at the CIPA pearing complained was cleared counsel he and told that the evidence jury would be the re- might his client were the dark about argued Counsel secret. evidence, gov- that the impression ... dacted but rather jury with the the “taint[ ] declassify the documents important about ernment should something so that there’s security portions the redacted were not that it’s of national because this document really at all. value,” client “is a threat” a “secret” and that his nothing within the docu- when there was liberty Noting that it was not at under ... danger- itself is ments “that and of guess government’s CIPA “to second the any way should be ous or classified.” information,” judgment classify the 140-41. ACA objection. district . court overruled jury was instructed re- alleged preju- of this claim of ACA 143.19 support dice, argued garding upcoming presentation to the dis- of clas- uncleared counsel evidence, Ginsberg was intro- very trict evident what sified Ms. court that is “[i]t jury attorney by duced “an hired just by reading the evi- material aspect over to Mr. Abu Ali to handle this of the already dence that has been turned case,” unredacted, defense,” 140, and that it “takes ACA and the clas- ACA pre- of the were really, quite frankly, someone who is of sified versions documents jury regular intelligence figure than to not sented to the via “silent witness” less is,” procedure.20 out 141. In what the document ACA 19. Because CIPA-counsel had endorsed the 153. She testified that she had conducted "[t]hоusands use of the “SECRET” cover sheet to the docu- similar searches of times” utiliz- ments, expressed ing had but uncleared counsel the same automated tool used here and create, that, impression might upon experience, with the concern her it “has al- based ways the district court the defense the "offer[ed] been reliable.” ACA 155. She identified unredacted, having option appear sheet to cover classified documents as those order, they looking jury that are at the same produced response as well as Apparently, communications, ACA counsel documents.” 143. the dates and times of the parties chose to utilize the cover sheet. and the to the communications. On cross-examination, acknowledged she that she Although knowledge uncleared defense counsel could had no as to when the search 20. so, tested, system many Ginsberg conducted last how times the have done Ms. also of the two witnesses at account was used or accessed after June cross-examination compliance manager origi- whether trial. The testified that the communications emergency received nated outside the United States. She testified she authorization to provide personally the FBI with information relevant to that she was unable to vouch for time, reliability on June This was followed of the date and had no case by knowledge persons alleged a written order the FISA court to con- to be information, way physical duct a and had no search for historical commu- identified compliance manager knowing party nications. The testified whether Abu Ali was a Agent that she "searched database for the the communications. The FBI fol- [their] *40 [provided] testimony regarding receipt of name and confirmed ... informa- lowed with responsive” provided pursuant tion existed to the order. ACA the data to the FISA order 3. challenges the dis- Abu Ali appeal, On carefully circum- Having considered the him and his un- court’s exclusion trict below, we conclude stances and evidence proceed- the CIPA counsel from cleared court’s determination that that the district court’s admission and the district ings the redacted classified information need into unredacted, documents classified defendant, his un- not be disclosed to the by jury, for consideration evidence counsel, public and the was not cleared rights under Confronta- violative of his we think that abuse of discretion. Nor do government argues The tion Clause. court’s exclusion of Abu the district protected properly court the district and his uncleared counsel from the CIPA from disclo- classified information redacted afoul proceedings ran Confrontation excluded properly sure under CIPA district court’s admission of Clause. The from the uncleared counsel Abu Ali and his the classified versions of the documents as in- the matter hearings because CIPA by jury evidence for consideration intelligence infor- sensitive highly volved disclosing the same versions to without argues that government also mation. Ali, however, contrary clearly was Abu by the not violated rights Ali’s were Abu by to Abu Ali rights guaranteed versions as evi- of the classified admission Confrontation Clause. provided Ali was with Abu dence because district court’s exclu- begin We with the documents, text of the virtually all of the Ali and his uncleared counsel sion of Abu of the communica- including the substance The district proceedings. from the CIPA communications, and tions, the dates of the by §a 4 motion presented was to the communications. parties the classified protect rul the trial court’s We review motion, at a made information and under an abuse of ings pursuant to CIPA date, Ali that he be allowed later Fernandez, 913 standard. See discretion Initially, the that information. to disclose addition, role [on] 155. In “[o]ur F.2d at redacted, unclassi- found the district court circumscribed. We are appeal to be of the communications fied version asked, authority, to consid and we have no need for adequate to meet the defendant’s Attorney judgments made Gen er expressly provides for CIPA information. to which the concerning the extent eral information redactions of classified such implicates nation information issue here required to be sought or from documеnts prosecu security. Similarly, neither al defendant, and the deter- produced possi in this case nor the torial decisions parte an ex may upon be based mination ... comes within our graymail bility jeop- the disclosure would showing that Fernandez, at 154. 913 F.2d purview.” security interests. The national ardize Rather, very “we are faced with series balanced the appropriately district court narrow, evidentiary determi fact-specific a reasonable determi- interests and made of whether question nations and with the in- redacted that disclosure of the nation trial receive a fair the defendant could trial. necessary to a fair was not formation Id. the aid of certain evidence.” without discre- no abuse of There was likewise the constitutional at 154. We review pre- court’s decision tion in the district v. Riv claims de novo. See United States Cir.2005). (4th counsel from Ali’s uncleared era, clude Abu 412 F.3d by the FBI. properly maintained data steps taken to ensure that and the *41 problem explored. wit- eific with the issues cross-examining government’s information, expressly The district court also consid- the redacted nesses about effectively rights ered Abu Ali’s under the Confronta- have disclosed which would public had tion and determined that the court Clause classified information A of these witnesses not be disclosed. examination was already ruled need counsel, necessary infringement of them. lacking prevent if to defendant and his clearance, fully and the security Having must be ex- considered the record requisite ourselves, agree. we that determine what classified information hearings cluded from defense counsel were not enti- is material and Uncleared classified information gov- to disclose the classified information crafted tled whether substitutions provide questioning the defendant via their of the witnesses ernment suffice to extracting, sharing, a defense about their roles in adequate presenting means of Thus, transferring, obtaining handling a fair trial. the mere the communica- tions, Ali, ably repre- Ali and his uncleared and Abu exclusion of Abu who was hearings hearing from the did not sented counsel on this counsel CIPA issue, deprived right run or Abu Ali’s Confronta- was not of his to afoul of CIPA rights. Washington merely In re confrontation or to a fair trial tion Clause be- Cf. (4th Cir.1986) Co., he and his uncleared counsel were Post 807 F.2d cause (Under CIPA, may “the district court hold not also allowed to attend. hearing purpose an in camera for the case, appears The error in the which evidentiary determina- making [ ] advance originated in have the October 2005 CIPA
tions.”). taken proceeding, was CIPA was one step that the district court too far. The district We also conclude court did not appropriate protecting struck an balance between the abuse its discretion in the clas- government’s security national interests sified information from to Abu disclosure counsel, right explore approving and the defendant’s the Ali and his uncleared substitute, manner in which the communications in determining were suitable obtained and handled. Abu Ali and his that Abu Ali would receive a fair trial in But, provided uncleared counsel were with the the absence of such disclosure. communications, substance of the reasons that remain somewhat unclear to dates, involved, us, parties granted and the and CIPA- the district court the govern- provided request cleared defense counsel was with ment’s the complete, unre- pre- classified versions and afforded unfet- dacted classified document could be opportunity tered jury cross-examine the sented to the via the “silent witness” therefore, government’s concerning result, witnesses procedure. these The end was jury matters. At the conclusion of the exami- privy that the to the information nations, pointed spe- defense counsel to no that was withheld from Abu Ali.21 pause quite peatedly 21. We to note that while Abu Ali led the district court to believe that clearly argues appeal they that the district court were aware of what had been redacted rights by violated his Confrontation Clause and were much more concerned with the allowing government to introduce at trial district refusal uncleared court's allow jury publicly evidence that the was allowed to see in counsel to examine the entirety simultaneously providing portions its while witnesses and disclose the redacted words, they him with a redacted version of that evi- documents. other took dence, stating government's his counsel was not so clear in issue with the decision to classi- which, objection fy to the district court. As indi- in the information first instance above, above, subject question. cated Abu Ali's uncleared counsel re- as noted is not
255
Innamorati,
Id.;
v.
States
above,
see also United
contem
CIPA
noted
As
Cir.1993)
(1st
(finding no
488
996 F.2d
to
courts
district
and authorizes
plates
parte
ex
submission
prosecutor’s
error
infor
classified
disclosure of
the
prevent
for consideration as to
of information
case,
long as
mation,
in this
so
done
as was
to the defen-
whether it must be disclosed
a fair
of
deprive the defendant
it does not
dant,
ques-
no
noting
but
that “there [was]
6(c),
§
§
&
U.S.C.App. 3
trial. See 18
upon
...
convictions based
secret
tion
8(b).
restrictions
also authorizes
CIPA
to the factfinder but
evidence furnished
the witnesses to
questioning
upon
defendants”).
from the
withheld
remains
information
that classified
ensure
8(c).
3, §
U.S.C.App.
See 18
classified.
the evi
The same can be said for
proce
Indeed,
“silent witness”
even the
If
information is to
dence here.
classified
in which the
situations
contemplates
dure
guilt,
upon
be relied
as evidence
information that
classified
jury
provided
steps
protect
to
may
consider
district
not from
public,
but
from
is withheld
from unnec
or all of the information
some
Zettl,
United States
the defendant. See
interest of
essary public disclosure
Cir.1987).22
(4th
1059, 1063
F.2d
in accordance with
security and
national
addition,
district courts
provides
CIPA
CIPA,
contemplates
specifically
which
approve
to evaluate
wide discretion
and substitu
as redactions
such methods
to
presented
to be
suitable substitutions
do not
long as these alternatives
tions so
however,
not,
au
jury.
does
CIPA
of a fair trial. How
deprive the defendant
classified docu
provide
to
thorize courts
minimum
ever,
government must at a
only such substitu
jury
to the
when
ments
of the evidence
provide the same version
to the defendant.
provided
are
to the
tions
that is submitted
to the defendant
Cf.
Fernandez,
(noting
F.2d at
defen
balance a criminal
jury. We do not
the defendant
will
“provide
must
the evidence which
right
substitutions
to see
dant’s
ability make
against
govern
the same
him
substantially
to convict
be used
spe
that evidence
protecting
disclosure
defense as would
ment’s interest
information”).
it.
If
government
Nor could
public
from
disclosure.
cific classified
privy to
ex
to be
between
not want the defendant
is a stark difference
does
There
classified, may either
it
which
that is
prosecutors
information
submissions
parte
document,
approval of
irrelevant,
seek
declassify
nonex-
protect the disclosure
substitute,
use
forego
or
its
information, and
an effective
privileged
culpatory,
cannot
government
altogether. What
seeks
in which the
situations
defendant,
from the
the evidence
do is hide
in court as
information
parte
ex
to use
plainly vio
jury.
Such
give
but
a conviction. See Unit
to obtain
evidence
(1st
Clause.
lates the Confrontation
Claudio, 44
F.3d
ed States v.
Cir.1995). And,
that such “safe
the notion
D.
discovery ...
wide-ranging
against
guards
that submis
determined
Having
justify
conviction
be sufficient
would
jury
documents
the classified
sion of
patently absurd.”
evidence is
on secret
express no
upon and
called
entirety, we
22. We are not
in its
this matter
When we view
"silent wit-
failure.
use of the
opinion
troubled
this
as to whether
more than a little
are
However,
proper
to consider the
had
we have chosen
been
procedure would have
ness”
to be
the district court
objections
pre-
stated to
the same document
received
defendant
ground
encompass
enough
broad
jury.
sented to
the error under
considered
appeal and have
opposed to the
error standard as
the harmless
plain error standard.
Ali’s Confrontation
did not contribute to
convic-
dence]
[the]
of Abu
ran afoul
295-96,
we turn now
consider
tion.” Id. at
interrogated and confessed to the crimes now convicted. upon which he stands challenge Ali’s next *44 of the regard to the redaction foren- With the in denying district court erred his information, Abu Ali’s CIPA-cleared sic post-trial compel motion to the govern all classified provided counsel was with ment to disclose the whether Terrorist the unfettered information and afforded (“TSP”) Program of Na Surveillance the challenge government opportunity to the (“NSA”), Security Agency tional which was the regarding information. Yet witnesses by first to York reported exist New or now was made then that showing no 2005, any Times in December resulted in information was disclosure of redacted investigation to the interceptions related necessary Ali to ensure that Abu obtained prosecution of We disagree. his case. request no a fair trial and made to In September the wake of the that have information evaluated outside country, terrorist attacks President experts appropriate forensic with clear- George imple Bush authorized the NSA to ance. TSP, employs ment the which warrantless argument that Abu Ali’s eleventh-hour of “communications onе intercepts where cannot government demonstrate harm- party to the communication located out prohibited error he was less because ‘a side and the has the United States NSA developing at the time evidence an alibi party basis to that reasonable conclude one the communications or to otherwise con- al to the is a communication member was, actuality, party to test he affiliated Qaeda, Qaeda, with al or a mem for the unpersuasive them is same reasons. organization al ber of an affiliated with or point prior during At no trial did Qaeda, working Qaeda.” support al party Abu Ali contest that he was a Security Agency, ACLU v. National provided communications declassified Cir.2007) (6th Press (quoting F.3d alibi, attempt him or to formulate such by Att’y Alberto Briefing Gen. Gonzales request counsel made no CIPA-cleared Hayden, Depu Principal and Gen. Michael identifying information be evaluat- (Dec. 19, ty Intelligence Nat’l Dir. for ed, he Ali admitted that had Abu 2005), http:// www.whitehouse. available communicated Sultan Jubran after gov/news/releases/2005/12/print/20051219 Medina were safe houses raided. l.html); also Statement on the Terror see Thus, the had been information that re- http:// www. Program, ist Surveillance from the version was dacted declassified whitehouse.gov/news/releases/2006/08/ largely cumulative to Abu Ali’s own confes- (stating that the TSP 20060817-2.html during sions the evidence discovered calls “only phone targets international raids, presented were the safe house which into or out of the United States coming jury. is a parties case where one sum, Qaeda terror suspected Al or affiliated while the district court violated ist”). has legality program right Abu Ali’s Amendment con- Sixth id.; challenged. Hepting since See against front the him submit- been evidence Corp., AT & T F.Supp.2d Having thoroughly considered this mat- (N.D.Cal.2006). ter, submissions, including all classified we find no abuse of discretion in the district Speculating government may rulings. court’s Accordingly, we affirm have used TSP conduct surveillance the district court’s exercise of its discretion against and obtain evidence him for use at deny under CIPA to Abu Ali and his coun- trial, Ali post-trial Abu filed a motion in government’s sel access to the parte ex February stay seeking to his motion opposition to the motion to compel, as well sentencing for a trial “in new order to denying post as its decision Abu Ali’s trial effects, any, newly determine if what compel. motion to acknowledged warrantless NSA surveil- program lance has had on trial.” [his] VII. motion, ACA 177. In demand- Finally, we govern address the ed that the disclose whether cross-appeal challenging ment’s the rea *45 any such surveillance was used to either sonableness of Abu Ah’s sentence and its obtain a warrant from the FISA Court or applicable variation from the guidelines otherwise obtain against evidence used range imprisonment. of life him. The district court govern- ordered the A. by ment to respond “[declaration under The pertinent facts cross-appeal this oath personal of someone with knowledge; are as follows. authority speak on behalf of the The engaged district court in a multi- government, intelligence agencies its and step process to determine an appropriate contractors; definitively and who can an- First, sentence. the district court ascer- swer whether [information from warrant- applicable tained the guidelines range. At (1) less electronic used to surveillance] a sentencing hearing 29, 2006, on March obtain a warrant from the FISA Court or accepted district court as accurate the (2) used in obtaining evidence that was presentence report’s findings guide- and presented jury at trial.” ACA 192. calculation, lines namely adjusted an of- government The filed response its fense forty-nine level of a criminal 9, 2006, classified, March parte ex form. history category result, of VI. As a submission, After reviewing the the dis- recommended sentence for Abu Ali under trict court government’s found the justifi- the Sentencing Guidelines impris- was life cation for persuasive non-disclosure onment. party challenges Neither the cor- ruled that the information was not discov- rectness of guidelines calculation erable. Abu Ali thereafter filed a motion here.23 seeking an order that permitted he be government’s classified, review thе ex The district recognized court also parte response to the compel. motion to Abu Ali’s Eight, conviction on Count con- government opposed motion, this spiracy to commit piracy, aircraft carried a it too was denied the district court. mandatory minimum twenty years im- 23. At sentencing hearing, supervisor or of the activity. relevant criminal argued that Abu Ali’s § offense level should See U.S.S.G. 3B1.1. The district court re- have adjusted upward been jected proposed adjustment, two additional this gov- and the having levels for aggravated his role in the appealed ernment aspect has not offense, leader, namely serving manager, as a sentencing district court’s decision.
259
Lindh,
49
other cases—those
John Walker
See
U.S.C.
prisonment.
(2000).
46502(a)(2)(A)
Thus,
Lindh,
any
F.Supp.2d
§
sen-
see United States v.
(E.D.Va.2002)
imposed could
fall below this
(sentencing
tence
Lindh to
statutory floor.
twenty
imprisonment), and of Timo-
years
Nichols,
thy
Terry
McVeigh
see Unit-
Having
guideposts,
these
established
(10th
McVeigh,
ed States v.
Finally, imposing dis- order avoid 220, 738, 621 125 S.Ct. 160 L.Ed.2d similarly situat- parate amongst sentences defendants, (2005), rendered the Supreme Court ed the court considered two 260 “effectively Finally, adviso- district court
Sentencing Guidelines
Nevertheless,
courts in
ry.”
adequately explain
district
“must
the chosen sen
must follow
post
landscape
specific
-Booker
meaningful
“allow[s]
tence.” Id. This
for
appropriate
an
sentence.
steps to arrive at
appellate
“promote[s]
per
review” and
if
ception
sentencing.”
Notably,
of fair
Id.
First, the
court must cor
district
unusually
“an
or
imposes
the court
lenient
rectly
un
calculate a defendant’s sentence
sentence,”
unusually
pro
an
harsh
it must
guidelines.
now-advisory
der the
See Gall
justifications”
vide “sufficient
for its selec
U.S.-,
States,
v. United
552
128 S.Ct.
594;
Rita,
tion.
Id. at
see also
127 S.Ct.
(2007) (“As
Next, Gall, district court must standard.” abuse-of-discretion opportunity parties allow “both to ar (rejecting S.Ct. at 591 a “pro- use of gue they deem ap whatever sentence portionality required test” that a “sentence Gall, 128 propriate.” S.Ct. that constitutes a substantial variance light of these arguments, district court justified by from the Guidelines be ex- *47 3553(a) circumstances”). § must then all of the “consider traordinary factors,” id., in mind keeping the “over
arching
provision instructing
district
Reasonableness
review includes
sufficient,
to ‘impose
courts
a sentence
but
both procedural
compo
and substantive
greater
necessary’
not
than
to accomplish nents. See id. at 597. We “must first
goals
sentencing,”
the
Kimbrough v.
ensure that the
court
no
district
committed
States,
-,
552
128
U.S.
S.Ct.
significant procedural error.” Id. Such er
(2007)
558, 570,
consider the extent of deviation and justification ensure that sufficiently is next We must “consider the compelling support degree substantive reasonableness of the sentence imposed.” variance.” Id. at 597. Id. the Court As instructed reasonably we have conclud- Gall, “might a cause reviewing sentence’s substan when reasonableness, into appro- must “take that a different sentence was we ed tive Rather, totality of circumstances.” must affirm a priate.” Id. we account the approach, applicable this we find the dis- Id. Under variance sentence unless important role. plays an range its guidelines trict court abused discretion. (explain at 574 Kimbrough, 128 S.Ct. See always, a considering As when “pre decisions have ing that the Court’s reasonableness, we “review the sentence’s key Sentencing a role for the Com served legal novo district court’s conclusions de Rita, mission”); (noting at 2464 127 S.Ct. findings clear and its factual error.” embody “seek that Guidelines Hampton, v. F.3d United States 3553(a) considerations, in principle both (4th Cir.2006) fact, lo practice”). sentence correctly guide calculated cated within C. range reasonable. presumptively
lines is Rita, (upholding at See this dispute case centers on presumption); of such a United States use impose court’s decision to a vari- district (4th Johnson, 339, 344 Cir. 445 F.3d significantly deviated ance sentence 2006). guidelines range. the applicable forty happened to be While deviation However, does not mean a (based expectan- on Abu AJi’s life percent presumptively non-guidelines sentence is relying on a cy), recognize particu- we Rita, 127 S.Ct. at unreasonable. infirmities of percentage lar “suffers from (stating appeal may that courts of Gall, we 128 S.Ct. at application,” “adopt presumption unreasоnable simply take note that the variance thus sentences). Rather, a for variance ness” result, and, “major” as a “should be that deviates from Guidelines sentence justifica- significant a more supported by reviewed under the same deferential one,” than a minor id. at 597. Howev- tion as a standard sentence abuse-of-discretion er, require the this does not mean we guidelines applicable imposed within “extraordinary.” id. justification See to be Nonetheless, conducting range. Gall, Rather, we as directed inquiry, “the extent of the reasonableness the reasonableness of sentence review a particular between sentence difference This for an abuse of discretion. imposed range is the recommended Guidelines *48 standard, and undoubtedly a deferential is may be surely relevant” considered. time, At the same approach it as such. we Gall, Supreme at As the 591. however, does mean such a standard Gall, determining in when observed Court Supreme at the there is no review all. As proffered justi the district court’s whether Gall, in an clear even under Court made imposing non-guidelines sen fication for standard, we still must abuse of discretion sufficiently compelling support “is to tence “meaningful review” appellate in engage variance,” degree of the common sense the “justification^ the court’s district be major departure “a should dictates that sufficiently sup- compelling to be] [must significant justifica a more supported Id. at of the variance.” port degree at than a minor one.” Id. 597. tion 597. sentence, however, with when As decision, the sentence, its district reaching “must
reviewing a variance we 3553(a) § sen- each of the court’s court examined due to the district give deference However, it tencing factors. was simply be- decision” and cannot reverse 3553(a)(6), disparity §of Mr. consideration which ranted Abu Ali’s case.” court’s added). (emphasis consider “the need instructs courts to disparities avoid unwarranted sentence comparative Using Lindh’s case as with defendants similar records among for sentencing benchmark of Abu Ali guilty similar who have been found con- say problematic To least. be- duct,” driving as the served force gin, highly questionable it is that Lindh’s ultimate determination. behind its at conduct is all similar to that of the (2000). 3553(a)(6) Though § it rec- U.SiC. In May defendant. and thus before are very that “there few cases to ognized September Lindh traveled to Pakistan case[,]” Mr. Abu Ali’s compare which to hopes fighting with the for the Taliban the district court devoted most its atten- Lindh, Afghanistan.” “on the front line in significant tion in explaining downward F.Supp.2d only at 567. “[I]nterested 3553(a)(6), deviation to a discussion fighting with against the Taliban focusing comparisons on of Abu Ali’s case Afghanistan,” Northern Alliance in Lindh McVeigh/Nichols, of Lindh and those an opera- declined offer to part “tak[e] Moreover, respectively. the court relied States, against tions the United Israel or imposed on the sentences in those cases to when Europe” approached by an al Farooq quantitatively locate sentence camp administrator in the summer of 2001. appropriate deemed for Abu Ali. Given the Instead, Id. at he 568. “wished to emphasis placed the district court on this fight against front line the North- factor, and the comparisons, because ern Alliance.” Id. at 567. In November below, inapposite, discussed we were hold 2001, after the September 11 terrorist at- abused its discretion when tacks, Lindh and fighting his unit “surren- result, imposing the sentence. As resen- weapons dered themselves and their tencing required. troops.” Northern Alliance at Id. 569. court,
According to sentencing Lindh 1. he claimed that was not aware the Sep- they tember 11 attacks until after had First, the court erred it signifi- when Id. occurred. Based fight- 568. on his cantly relied on the need to avoid an un- ing Taliban, with eventually pled Lindh warranted disparity sentence between the guilty two charges: supplying services defendant John Walker Lindh. Lindh to the Taliban carrying explosive pled guilty to charges two in connection during felony. the commission of a Id. at fighting his in Afghan- for Taliban and, pursuant istan to the terms of plea agreement, twenty years serious, was sentenced to unquestionably While imprisonment. See United States v. crimes which Lindh was convicted are Lindh, 565, 566, 227 F.Supp.2d 572 different than Abu Ali’s terms of both (E.D.Ya.2002). very With little discussion their scope. substance and When Lindh *49 exactly why of Lindh’s case similar apprehended, was to was was he a foot soldier on Ali’s, that of Abu the district court a simply foreign fighting battlefield the Northern observed that “while does not rest Afghanistan. its Alliance in Although he had judgment solely a comparison spent on to in al-Qaeda-linked the time military case, Walker Lindh persuaded the Court training camps, Lindh was on focused that, light in to fighting similarities for the [Lindh’s] Taliban on front the lines. case, a fact, sentence of less than life In imprison- he opportunity par- declined an to prevent ment is to necessary an ticipate unwar- in against terrorist attacks the deal, cooperate to prior agreed fully the Lindh States, had no claimed he United assign that did He to specific prosecution. agreed the attacks with the knowledge of In September 2001. his place on any profits proceeds arising take or from pub- soldier, front-line the as a Taliban capacity licity government. the to United States posed personally the magnitude of threat Lindh, at nn. 7 & In F.Supp.2d 8. American, to those was limited Lindh addition, accepted he responsibility American-allied, who were soldiers his showed remorse for conduct. Id. on the battlefield. sight within his line of in 571. As the district court noted Lindh’s order, sentencing Lindh had stated em- comparable. Abu Ali are not Lindh and terrorism phatically he “condemn[ed] by Abu contemplated of harm degree every openly level” and realized he scope in and more devas- Ali was broader impact. by joining a the Taliban.” potential its “made mistake tating in terms of Arabia in Id. arriving Saudi Soon after an joined al- September exchange pleading guilty, for Lindh’s Qaeda inflicting intent on massive ci- cell to re- agreed dismiss the American soil. He
vilian casualties on original nine in- maining counts jihad against engage to pledged 566, n. 2. dictment. Id. at This included a cell, and, a member of United States carrying of a destructive device charge of several participated planning violence, a during a crime of which has including: assassinating the Presi- plots, thirty statutory mandatory minimum of States, destroying air- of the United dent Id.; years imprisonment. 18 U.S.C. States, and liners the United destined for (2000). 924(c)(l)(B)(ii) § accepting After a part States as returning to United court sentenced plea, district that, successful, if would en- sleeper cell possible Lindh to the maximum sentence within the gage operations in terrorist twenty years pursuant agreement, States, particularly targeting public imprisonment.24 designs were gathering places. Abu Ali’s a or di- foreign By comparison, coop- not limited to battlefield Abu Ali refused foreign enemy, but rather expressed rected at no government, erate with targets the American aimed at civilian of his responsibility remorse simply, homeland. Put conduct was offenses, aof crime and stands convicted Lindh, than markedly (not different mandatory minimum that carries undermining completely the usefulness maximum) years twenty imprisonment. any comparison between two. right to every go Abu Ali had Although proven claim innocence until trial and conduct, dissimilar In addition their proven guilty and guilty, he has now been similarly Lindh are not situat- Abu Ali and the benefits thus avail himself of cannot 3553(a)(6) § in the under ed defendants plea reach typically afforded those who Ali, Lindh, was unlike Abu sen- sense that government and ac- agreements with the pursuant plea agreement to a tenced illegal earlier, cept responsibility for their conduct government. As noted Lindh A comparison rest- charges. going Pursuant to before trial. to two pled guilty 1705(b) (2000), hy No. § amended Pub.L. supplying services Lindh convicted 109-177, (2006); 402(2), § carrying 120 Stat. explosive dur- Taliban and Thus, time, (2000). 844(h)(2) the absolute ing felony. At the U.S.C. commission of *50 faced, based on the sentence Lindh charge a sentence of maximum each carried maximum Lindh, twenty consecutively, was running imprisonment. sentences years ten See 571-72; imprisonment. years 50 U.S.C. F.Supp.2d at see also significant to account that ing on sentence fails for distinctions between case Lindh’s First, and the of Mr. Ali.” this stark contrast. case Abu “Abu fewer signifi- took far and much less Supreme recent Prior to the Court’s de cant steps conspira- in accomplishing Rita, Gall, and Kimbrough, this cisions Second, cies for he which was convicted.” that a downward deviation circuit had held magnitude enormity “the and of impact comparison on primarily based a McVeigh of the criminal actions of and defendant who went to trial with those Nichols stark stand contrast that plea agreements misap who is a entered which Mr. exists case of Abu Ali.” 3553(a)(6) § plication required that Thus, it imposing found sentence of sentence to be vacated. See States imprisonment life on Abu Ali would have (4th Khan, 461 F.3d 500-01 Cir. disparity led to an unwarranted under 2006); Perez-Pena, United States v. 3553(a)(6). § this application Because Cir.2006). (4th F.3d 242-43 This was overlooks critical it points, several likewise comparison because we viewed the of such was mistaken. defendants, co-defendants, even if to be apples like and “comparing oranges.” First, though the district court accurate- Perez-Pena, 243; 453 F.3d at see ly also “injured noted that Abu Ali any never Khan, F.3d at (finding 499-501 people” injured “no and victim was in the States!,]” there is a material difference between United this should trivialize “accept[ responsibility those who ] and severity of his Plotting offenses. ter- provide[] gov valuable assistance to the rorist attacks on the population civilian ernment” accept[ and those who “never conspiring ] to assassinate the Presi- justice responsibility both obstruct!] dent of the United States are offenses of trial”). during before and gravity, the utmost and the Guidelines and for any that matter other measure of se- precedents Whether those require would verity manifestly treat them such. Had vacating the sentence in Ali’s Abu case is fruition, Abu plans Ali’s come to they something we need not address. As we would, words, according to his own have noted, have those rulings underscore led to civilian massive casualties and the one of several factors that make the Lindh assassination of senior U.S. officials. As and Abu Ali cases starkly different. In- recognized, the district court properly but deed, any comparison between Ali and failed adequately appreciate, we cannot Lindh on such rests dramatic differences “wait until there are victims of terrorist case Lindh’s cannot serve as a basis fully attacks to enforce the nation’s crimi- any for comparison useful alone one —let nal against laws terrorism.” imposing significant makes variance “necessary.” result, sentence As To on deviate basis unrealized comparison to Lindh’s case would be tanta- require harm is completion an act of mount comparing incomparable, clearly contemplates offense that in- thus misplaced. complete definition, By conduct. conspira-
cy not require objects offenses do that all conspiracy accomplished. be The district court appli- also erred its appropriately recognize Guidelines 3553(a)(6) cation of they when relied on a fact: normally while afford a three- comparison to the Timothy case of level for non-specific decrease offense con- McVeigh Terry In making spiracies Nichols. that were not the verge the comparison, the very completion, they court noted “two specifically exclude from *51 as a its comparisons used those basis for any conspiracies involve this decrease sentence. crime of “a federal promote or terrorism.” § 2X1.1. U.S.S.G.
See D. Furthermore, completion lack in the of finally response A in to the dis- word not be taken to indicate this case should three in sent. The dissent asserts faults change heart the defendant. any of analysis: sentencing the a failure to follow Instead, until he conspiring he continued the principles Supreme established suspicion on by the Mabahith was arrested Kimbrough, and in our Court in Gall error al-Qaeda-linked in an ter- membership of analysis sentencing of the district court’s of his cell. It was because rorist order, and, finally, creation of a terror- desist that he was forced to arrest ism level of exception deference Thus, plans. execution of his further judges normally afforded district in sen- simply not be- should benefit defendant each of conten- tencing. We address these plans by Saudi disrupted were cause tions in turn. through. could them before he see officials Second, may Abu Ali not have while 1. bombs, any any weapons, shot “planted begin, To we have followed di- Gall’s in States any steps ... took the United rective that “all be reviewed sentences” conspiracy,” others to further the “under a deferential abuse-of-discretion significant. he take were In- steps did Gall, Indeed, standard,” at deed, joined he terrorist cell al-Faq’asi we understand this to be thrust hopes of facilitat- in Arabia with Saudi Likewise, fully we recognized Gall. have ing terrorist attacks the United States. “sentencing judge superior is flights that researched international He position find facts” and conduct the and hijacking be suitable for investi- might such “individualized assessment” plants power the locations of nuclear gated integral sentencing process. part targets for potential that could serve as omitted). (internal quotations Id. in a participated He also course attack. exception we take sentence’s While ways plotted various and explosives degree deviation for reasons we assassinating President of methods of discuss, deprive we do not seek These were serious the United States. upon remand. district court of discretion steps right. their own significant sentencing Rather, with the our difference City Finally, while the Oklahoma bomb- is based on the fact that here undoubtedly one the most hei- ing was not offered were specific justifications devastating acts in our nation’s nous support the de- “sufficiently compelling to infliction history, require similar Gall, 128 S.Ct. gree of the variance.” See imposing harm before similar sentence at 597. too effectively high. raise the bar
would
decision,
we decline
reaching
require
that a defendant do
We should
eviscerated
adopt the view that Gall
and Nichols did
order to
McVeigh
what
of trial court sen-
appellate
form of
review
a life sentence.
receive
assuredly
clear
Gall
made
tencing. While
appel-
role
reasons,
the limited
deferential
For
these
the district court
see
sentencing process,
in the
compared
it
late
its
when
courts
abused
discretion
597-98,
wholly
a decision
id. at
was not
Ali’s
to those of Lindh and of
case
If
had
Nichols,
nuance or balance.
Gall
respectively, and without
McVeigh and
*52
dispense
with
intended
semblance
did not
regime
substitute a
of total unre-
review,
meaningful
there would have viewability
regime
for the fallen
of Guide-
no
for the
say
been
need
decision to
what
Gall,
rigidity.
lines
sentencing
After
con-
Specifically,
it did.
there would have been
represent
tinues to
at least some modest
no need for Gall to direct district courts to
balance between the need to
un-
avoid
“correctly
applicable
Guide-
calculat[e]
disparity
bounded
and the need for indi-
lines
at
range.”
Id.
596. There would vidualized
Kimbrough,
assessments. See
require sentencing
have been no need to
To begin,
court,
the district
clear,
To be
the purpose of this discus-
dissent,
well as the
notes the defendant’s
sion
quibble
is not to
with the various
youth
relative
at the time he
points
committed
made
the district court in sup-
274-75,
these heinous
post
crimes. See
at
port
Rather,
of its sentence.
we simply
276.
recognize
We
that Gall held it
that,
would want to
plain
make
having given each
not be unreasonable for a district court to rationale its “due deference” and viewing
consider a
“immaturity
defendant’s
at the
whole,”
the entire decision as “a
we believe
time of the
mitigating
offense as a
factor”
the additional
provided by
reasons
the dis-
when the defendant had demonstrated a
trict court do not sufficiently “justify the
“dramatic contrast between [his] behavior
extent of the
light
variance” in
of the
before [the
and his conduct
offense]
af
district
court’s misplaced Lindh and
Gall,
terwards].”
Finally, the
is made that
assertion
of “terrorism ex-
have invoked some sort
E.
This
post
See
271-72.
ception” Gall.
foregoing
Based on
circumstances
decision
no
not the case. Our
creates
case, we
signif-
find the district court’s
exception,
rather rests on
blanket
but
justi-
icant downward deviation not to be
As
nature of these circumstances.
specific
Thus,
imposed
fied.
sentence
must be
this,
merely apply
injunction
we
Gall’s
vacated.
While we
course leave
ensure
the reasons offered
sentencing function to the
offices of
able
“justify
extent
district
remand,
trial
court on
we trust
Gall,
It
While
to adhere to Gall and
(in-
judgments
vacated
appellate
courts
Kimbrough,
majority
finds
“compel-
no
*56
one)
cluding this
that
justification”
very
committed the
ling
clearly
for the
reason-
same errors
reversing
able
in
imposed
only by
sentence
here
sentences
refus-
so,
ing
which the
to do
and so fails
district court had
to conduct a true
deviated more
abuse-of-discretion review.
addition
from the
range
to
Guidelines
than in the case
refusing to
hand,
follow the controlling legal
at
justification.1
less
far
See,
Tom,
e.g.,
(2008);
1.
United States v.
I.
Sentencing
made the
Guidelines mandato-
Although
majority
3742(e) (2000
Supreme
recites
ry,
IV),
Supp.
ed.
directives,
sentencing
utterly
Court
fails which directed appellate courts to review
to appreciate
importance
of the most
departures
de novo
from the Guidelines.
longer
fundamental of these directives—no
But,
court II. applying in the sentencing within reason 3553(a) defen- factors the criminal In addition to its these failure to follow undertaking that come before them.” United in its legal principles, dants critical (6th Vonner, sentencing 516 F.3d the States review of district court’s added). Cir.2008) decision, But (emphasis majority Booker the commits the same courts, “empowered appel- analytical district not fundamental error that resulted Sentencing and not Com- Supreme late courts the in the Court’s reversal of the Moreover, a there is judge Id. Circuit in Gall. The district Eighth “[i]f mission.” Rita, Gall, hand, emerges judge from in at pattern the case like the district Gall, it is that the district court a Kimbrough, persuasive in offered number of cases, in all three ma- judges justifications were vindicated for its sentence. But the appeals just Circuit, affirmed jority, Eighth and a court of like the makes no when it de- attempt quantify many that of course was value of the once—and the judgment of the “justifications provided by to the on-the-scene the District ferred Gall, majority today Id. Judge,” court.” The 128 S.Ct. at to “take into district circumstances,” acknowledge totality “the central lesson refuses to account courts justifications these decisions—that district at or to id. view whole,” area discretion “a provided have considerable district court as considering of the doubt deferentially thus deserve benefit Rather than id. justifica- review their together when we sentences all of district court’s tions, majority for them.” Id. given reasons finds Abu Ali’s sentence er- purported unreasonable due isolated that it has attempting to demonstrate judge’s the district rors identifies court, deferred the district properly sentencing reasoning regarding single justification: majority single offers factor. that to majority suggests The strawman. Thus, majority like the opinion, “eviscer- affirm the sentence here would Gall, opinion wholly fails appellate Eighth of trial Circuit any form of review ate[ ] requisite and does sentencing,” instituting regime “a to “reflect deference that the District unreviewability” support sentences. Ante conclusion total 265-66, Id. at 598. abused its discretion.” Hardly. Supreme Court Court this; express majority’s do I failure to follow require does not nor precedent courts appellate guidance it does. But the Court’s Gall suggest *59 court’s deference the district require appellate “give does that an due to precedent 3553(a) factors, § on a that to a district court’s reasonable decision court defer whole, is decisions, the extent the variance” justify those de- sentencing even when (empha- fatal. See id. at 597 depart advisory baffling from the Guide- cisions —and any added); For see also id. at 594. range. majority If the followed sis lines all of the faithfully deferential evaluation of as fair and Supreme teachings Court for justifications them, if it in the court’s numerous truly engaged and district quotes only one to sentencing re- decision leads deferential abuse-of-discretion its proper entirely view, patently conclusion—that sentence it would have affirm Only imposed sentence here. reasonable. reasonable imposed respect that the district court committed for several reasons. With Given error,4 procedural appropriate appellate offenses, no the court reasoned that offered justifications review of serious,” they “extremely while were Abu involves here consider- district court participation relatively Ali’s in them was the “substantive reasonableness” ation of injury any attenuated and resulted no requires Id. at 597. This of the sentence. person Thus, property. although or Abu to assess “whether the appellate court Ali conspired with terrorists in Saudi Ara- his Judge abused discretion de- District bia, the court noted he had never 3553(a) § termining sup- that the factors bombs, planted possessed shot or even ported justified ... and ... sentence [the] violence, weapons, committed acts of from the substantial deviation Guidelines any steps taken in the United States to range.” Id. at 600. conspiracy. Certainly, further the these 3553(a) Section instructs district courts conduct, facts do not excuse Abu Ali’s but “sufficient, impose a sentence but not they provide justification do some for im- necessary,” greater than to further posing a sentence imprison- short life following purposes: “reflect the serious- ment. crime; “promote respect ness” of the for respect “history With Abu Ali’s and law”; “just punishment”; deliver “de- characteristics,” the district court noted conduct”; ... criminal “protect
ter[ ] had “been held under some public”; provide and the defendant with conditions,” very care, extremely onerous with training, needed medical or treat- 3553(a). family limited contact § ment. 18 or the U.S.C.A. deter- outside world, mining yet the sentence that and best achieves “correction officers who 3553(a) § purposes, these directs the sen- supervised him” described him as “a model tencing court to consider a number of fac- of behavior.” The court also relied on Abu tors in addition to statutory minimum youth, any Ali’s lack of criminal history, advisory range. Guidelines Id. The record, excellent academic many and the district carefully considered each of attesting letters decency good the applicable factors and concluded that character. The court concluded that “all they justified a thirty years’ sentence of these weigh factors favor of’ its chosen imprisonment by thirty years’ followed su- sentence. This conclusion accords with pervised release. itself; Supreme Gall there the Court ex-
First,
pressly recognized that similar
the district court
character-
considered “the
justified
nature and
istics
constituting
circumstances” of the
sentence
offenses
history
and “the
sizeable downward
characteristics of the
deviation from the
3553(a)(1).
defendant.”
Id.
It
range.5
601-02;
found Guidelines
128 S.Ct. at
justified
these factors
the sentence
see also id. at 593.
4. Neither
majority
majority
Government nor the
5. The
dismisses the district court’s
contrary.
they,
contends to the
Nor could
background
consideration of Abu Ali’s
character,
clearly the district
pro-
court did not commit
concluding that
the offense for
cedural error. The
properly
district court
being
which he was
any
sentenced invalidated
applicable statutory
ascertained the
"good
minimum
other evidence of
character.”
This
sentence, recognized
reasoning
that the Guidelines
effectively
were
renders
consider-
advisory,
proper
calculated the
"history
Guidelines
ation of
and characteristics”
irrele-
*60
range,
carefully
and then
determined and
vant whenever a defendant has been convict-
thoroughly explained why the sentence ac-
Surely
ed of a serious offense.
this is not the
purposes
corded with the
set forth
Congress
in 18
result
specifically
intended when it
3553(a).
Gall,
§
U.S.C.
See
Once Gall thirty years imprisonment after release There reasoning. court’s for the district be- deterrence” provide would “additional recognized, particular, the Court law en- probation sentences, cause “court probationary serious nature Ali’s con- monitor Abu forcement” would although “qualita- not as observing range imprisonment. of life the Guidelines history characteristics of the er ... 3553(a) (emphasis account majority's calculation fails to defendant.” 18 U.S.C.A. whole, added). that, taken as for the fact imprisonment fol- thirty years' sentence of of the re- 6. The Gall Court’s discussion supervised by thirty years’ release lowed by noncustodial sentences strictions caused certainly a substan- will constitute almost majority's substantially undermines liberty Ali’s on Abu tial restraint imposed here complaint the sentence life. rest of his "forty percent” deviation from constitutes *61 life, thirty years of his and he of imprisonment permit duct for the remainder would Ali, studies, “immediately [yet face who had excelled in another] would his opportunity pursue if some lengthy imprisonment term of he vio- his education release[,] law, while incarcerated but would remove the lates terms of or orders public paying burden on the for the during super- the term of of this Court geriatric medical likely care he would Again, the district court’s vised release.” require given if imprison- term of life support finds Gall. As noted reasoning ment. Gall, above, Supreme Court similar- significant restrictions on
ly recognized
Finally,
weighing
after
all of these statu-
liberty attendant
to noncustodial
personal
factors,
tory
the court considered the need
indeed,
sentences;
the Gall Court conclud-
imposing disparate
to avoid
sentences
restrictions,
that given
impris-
ed
these
no
similarly
upon
situated defendants. See
“necessary
onment
to deter” the
de-
3553(a)(6). Initially
§id.
recognizing that
criminal
engaging
fendant “from
in future
“very
there were
few cases” similar to Abu
Gall,
conduct.”
at 602.
S.Ct.
purposes
determining
Ali’s “for
what
sentence will constitute unwarranted dis-
Fourth,
the district court considered
parity,” the court measured Abu Ali’s con-
“protect
whether its sentence would
against
duct
that of the
three avail-
public from further crimes of the defen-
comparators:
Lindh,
able
John Walker
3553(a)(2)(C).
§
dant.” 18 U.S.C.A.
The
Timothy McVeigh,
Terry
Nichols. Af-
court
concluded that would. The court
so,
doing
ter
the court
that Abu
concluded
persuaded by
found itself
Abu Ali’s lack of
Ali engaged in conduct more similar to
any prior
activity,
criminal
“strong
Lindh,
that of John Walker
who received a
ties,”
family
“strong
and his
contacts with
twenty years’ imprisonment,
sentence of
community” that “the
being
[the]
sentence
than that of Timothy McVeigh
Terry
imposed
adequate
will be
and reasonable
Nichols, who received a death sentence
to protect
public
from future crimes.”
imprisonment,
and life
respectively.
Moreover,
that,
the court relied on the fact
thirty-year
when released from a
term of
majority explicitly
acknowledges
imprisonment, Abu Ali would be “of sub-
that “the district court examined each of
stantially greater age”
unlikely
so
3553(a)
§
sentencing factors.” Ante at
commit further crimes. As the district
majority
261-62. Yet the
makes no effort
noted,
this conclusion finds support
to follow Gall’s directives to “take into
Sentencing
study;
Commission
totality
circumstances,”
account the
of the
Kimbrough,
Supreme
recog-
Court
justifica-
assess the overall “value of the
nized the value of the Commission’s re-
provided by
tions
Judge,”
the District
”
approval
search and noted with
the district
consider whether “on the whole
court’s reliance on the Commission’s find-
3553(a)
analysis
§
court’s
factors
ings.
566, 568-69,
Fifth, the district court considered Despite majority’s claim to the con- provided whether its sentence trary, Abu Ali provides the record itself no excuse “with needed educational ... training, majority’s ill-considered refusal to medical care” or other treatment “in apply proper deferential standard of most effective manner.” 18 U.S.C.A. review to all of the district court’s emi- 3553(a)(2)(D). Again, the court nently justifications found reasonable for the se- it would. The court reasoned that According majori- lected sentence. *62 analysis court’s of its eluded that the district most of court devoted ty, “the district 3553(a)(6), statutory above factors was reasoned § which “served attention” together, they Taken as the sentence. and reasonable. driving force behind” as the simply be, justifications majority is must the district court’s at 262. The Ante of the record Any reading ample support fair for the selected wrong. provide above, that, the dis- response Even in its to this as recounted sentence. reveals mention, dissent, majority most of its fails to let “devote[] did not trict court 3553(a)(6), many § but rather de- the district court’s dispute, alone attention” justifications to each of the for the sen- persuasive care and attention most voted course, justifica- In this re- sentencing factors.7 tence. Of some of the statutory others, for va- arguments may stronger than but the Government’s tions be gard, telling. Neither the dis- the sentence are when “due deference” is afforded cating decision, in a letter to this clear that nor trict it becomes appellate brief court’s its issued, shortly after Gall did not abuse its discretion written the court court suggest even Ali. id. at 602. sentencing the Government See does 3553(a)(6) fac- sentencing § of the analysis behind the “driving force”
tor was III. Indeed, de- the Government sentence. minimal of the district discussion With factor in its attention to this votes little analysis of other statuto- thorough court’s much as and does not so appellate brief factors, majority finds Abu Ali’s ry post-Gall in its letter. the factor mention purported on unreasonable based sentence Moreover, majority’s contrary to the analysis of the in the district court’s errors rely court did not the district suggestion, factor, the avoidance of sentencing final 3553(a)(6) “quanti- § factor to only on 18 U.S.C. sentences. See disparate Ali’s sentence. Ante tatively locate” Abu 3553(a)(6). sentencing if a § Even in the district court’s Nothing 267. at many of the analysis in its of one does err played a that this factor opinion suggests considered, that sin- factors it sentencing 3553(a) § factors than the other larger role certainly not estab- alone would gle error determining specific sentence. analysis was unreason- that the court’s lish fact, reasoning regarding the court’s Gall, at See able as a whole. supported its selec- equally factors other hand, Moreover, in the case thirty years’ imprison- tion of sentence err in its consid- court did not the district ment, supervised by thirty years’ followed sentencing factor. even one eration of that, release, notably, a sentence substan- of the Thus, consideration if the court’s statutory twenty-year tially exceeded the 3553(a)(6) is scruti- sentencing factor § sentence. minimum vacuum, majority improp- in a as nized analysis still does, erly the district court’s di- majority had followed Gall’s If the judged reasonable. rectives, con- must be I it could have believe attention similarly devoted careful the court dedicate written order does 7. The court's factors; example, statutory complicated to each of the more words more (and fully time as much 3553(a)(6) court devoted statu- analysis than to the other na- factors, pages) of the transcript to consideration discusses all thoroughly tory but it the offense circumstances it re- ture and indicates factors and nowhere defendant, (a)(6) history characteristics heavily than on other more lied 3553(a)(1), Moreover, by § as to consider- as mandated selecting the sentence. factor among disparities avoidance of sentencing hearing ation of the transcript re- 3553(a)(6). defendants, Ali, §by mandated actually sentencing Abu like veals that when *63 Moreover, Lindh, contrary obtaining after majority’s argument ex- First, training, with the ma- tensive battlefield traveled two contentions. rests on al-Qaeda Af- supporters un- other to Northern that the district court jority contends ghanistan fought where he on the front Abu Ali to Lindh reasonably compared against line the Northern Alliance from assertedly of conduct the two because the September through November 2001. Id. enormously and because Lindh differed obtaining at 568. After his more limited Second, Ali pled guilty while Abu did not. training, flights Abu Ali on researched majority contends district possible hijacking, investigated internet for Ali unreasonably compared Abu attack, targets plotted and assaults on McVeigh and then found their Nichols and but, high unlike United States distinguishable conduct from Abu Ali’s be- officials— Lindh, alleged it is not even that he ever harm on they great cause inflicted this up against anyone. took arms Although Country, plans Ali’s evil came to while Abu certainly criminal Abu-Ali’s conduct is ser- nothing. per- Neither contention is at all ious, may so is Lindh’s. Abu Ali’s conduct suasive. Lindh’s, may not be more serious than certainly but it does not differ so much A. from Lindh’s as to eradicate the usefulness any comparison between the two. Notwithstanding majority’s argu- course, observes, majority Of pre- ments, criminal Lindh’s conduct is simi- precedent Gall circuit it rendered revers- identical, lar—not but similar—to Abu sentencing ible error for the court to disre- joined ul-Mujahi- Ali’s. Lindh the Harakat gard the difference between a defendant training camp seeking fight deen “to with Ali, who refuses to plead guilty, like Abu Afghani- the Taliban on the front line in and another who pled guilty has and there- stan,” “voluntarily and he allegiance swore by “accepted responsibility provided Lindh, to Jihad.” United States v. government.” valuable assistance to the (E.D.Va.2002). F.Supp.2d 567-68 Khan, See United States v. 461 F.3d joined Ali al-Faq’asi cell terrorist (4th Cir.2006); United States v. Perez- goal facilitating Saudi Arabia with the Pena, (4th Cir.2006). 453 F.3d 242-43 against terrorist attacks the United States. It unlikely seems that this principle sur- ul-Mujahideen at the camp, While Lindh (The majority vives Gall. itself unwilling participated in a “program primar- focused that, Gall, say after these cases “would Jihad,” ily goals on the twenty and for require vacating” Abu Ali’s sentence. days weapons received instruction that in- 264.) Ante at if principle Even this did firing cluded numerous rounds various Gall, survive prohibit would types weapons; he then participated sentencing comparing court from Abu Ali’s training al-Qaeda-funded activities at an conduct to that of Lindh if it disregarded training camp, attended lectures Osama guilty plea. Lindh’s But here the sentenc- Laden, “additional, bin gained more ing court disregard did not this fact. military extensive training” “weapons Rather, the court carefully took this fact explosives,” as well as “orienteering, into account—and sentenced Abu to a navigation, and battlefield combat.” Id. imprisonment fifty percent term of greater Abu Ali al-Qaeda-funded traveled to safe- than Lindh’s sentence. similar, houses where he received albeit limited, far more training Moreover, in weapons and neither the cases cited explosives. (or majority nor Supreme other circuit Court) sentencing steps achieving that a took different toward their holds precedent appropriate compa- court’s selection Lindh to inflict goals. intended harm on entirely on the defendants’ rator need rest allies; extensively prepared our he cooperation govern- relative levels of trained for and succeeded in doing so Khan, 500- officials. See ment F.3d at by engaging in armed battlefield warfare. Furthermore, these cases do simply Abu Ali to inflict harm on intended *64 like one at not circumstances the address citizens; he too States officials and pre- hand, sentencing the court could in which (albeit and pared extensively) trained less three only identify possible, similarly situ- inflicted in fact harm. But but never these to compare ated to the defen- defendants provide differences an insufficient basis to dant in order “to avoid unwarranted sen- sentencing conclude that the court abused 18 disparities.” tence U.S.C.A. finding its discretion in that the two ter- 3553(a)(6). § sense that Common dictates enough to rorists’ conduct was similar war- group with a small when confronted rant consideration of the sentence that had a comparators, sentencing court potential imposed imposing been one when on sen- may reasonably into in its take discretion tence on the other. those many account as individuals sentencing disparities be- possible to avoid have
tween
who
committed
defendants
B.
conduct; plea
alone
similar criminal
status
comparison.8
should not bar
Nor, contrary
majority’s
to the
sugges-
ante at
tion,
263-65,
did the district court
yet,
majority
And
the
asserts that the
Timothy
in
to
relying
comparison
err
on a
plea
difference in
status between Lindh
McVeigh
Ali
a critical reason
can
and then
Terry
and Abu
is
there
Nichols
hold-
comparison”
no
the two
be
“useful
between
ing that
conduct differed
Abu Ali’s
suffi-
sentencing purposes. Ante
defendants for
ciently
McVeigh’s
and Nichols’ that a
majority goes
at
so far as to
263-64. The
for Abu Ali
less severe sentence
would be
“any comparison
claim that
Lindh’s case
3553(a)(6).
§
consistent with
comparing
would be tantamount
in
As the
recounted
Tenth Circuit
Id. The
incomparable.”
majority
cer-
McVeigh’s
respective criminal
and Nichols’
tainly
that
these two
correct
individuals
bought,
appeals,
“sought,
men
two
identically
Although
are
situated.
all the
needed to construct”
stole
materials
conduct, they
in
did
engaged
both
terrorist
ultimately
would
goals,
they
explosive
device that
distinctly
have
different
3553(a)(6)
government’s
ing
remaining
on the
language
The
U.S.C.
con-
nine
of 18
that, contrary
motion).
ma-
firms
conclusion
itself also reinforces
Booker
assertion,
jority's
correctly
the district court
sentencing
to focus on
need for
courts
crimi-
comparators
to limit
its choice of
declined
conduct,
of conviction when
nal
not offenses
solely
plea
based
status.
Section
examining comparators. The Court took care
3553(a)(6)
sentencing
instructs
courts to con-
“Congress'
goal
explain
although
basic
imposed on
sider the sentences
defendants
Sentencing
passing
Act was
move
in
guilty
“who have been found
con-
similar
sentencing system
in the direction of in-
added);
(emphasis
duct”
the text does not
uniformity
uniformity,”
creased
must be
require
comparison of formal "offenses of
relationships
based on
between sen-
"similar
conviction,”
might better account for
which
conduct, relationships
...
tences and
real
negotiated
has
cases in which a defendant
approach] would under-
[a conviction-based
See,
Lindh,
plea bargain.
e.g.,
F.Supp.2d
253-54,
Booker,
at
mine.”
543 U.S.
(permitting
plead
Lindh to
566 & n.
added).
(emphasis
guilty
ten counts
one of
and dismiss-
by McVeigh and
ing losses of life inflicted
people.
kill
hundred
United States
over a
(10th
Ali,
Like Abu
Nichols and
F.3d
1176-78
Nichols.
McVeigh,
Cir.1998).
placed
and Nichols
... offensive
McVeigh
McVeigh wanted to “take
“3,000-6,000
comprised
against
government.”
bomb
action
the federal
pound
explosive” in- McVeigh,
nitrate-based
The
asserts
relying
court
in
fact that
erred
Abu
Moreover, contrary
majority’s
to the
as-
significant”
took “fewer” and “less
sertion, the district court’s consideration of
steps
completing
toward
the conduct that
this difference does not “trivialize the se-
and,
subject
conspiracy
was the
of his
fur- verity of’ Abu Ali’s offenses. Ante at 264.
ther,
looking
that the court erred in
course, I agree
Of
that we cannot wait
impact
actual
of the defendants’ actions. until
have
punish
attacks
occurred to
ter-
Thus,
majority
holds that the sentenc-
operatives
rorist
the district court
—but
ing
unreasonably
court
deviated
this,
expressly recognized
as even the ma-
Guidelines on the
basis
unrealized
jority acknowledges.
Id. The district
improperly
appreciate
harms and
failed to
imposed
heavy
sentence on Abu
gravity”
the “utmost
of Abu Ali’s terror-
sentence, however,
Ali. That
accounts for
majority
ism-related offenses. The
ac-
Ali,
Lindh,
the fact
although
that
Abu
like
knowledges that Abu Ali did not “do what
Nichols,
McVeigh,
engaged
repre-
and
in
did,”
McVeigh and Nichols
but
seems
conduct,
case,
in
hensible
Abu
Ali’s
insist that the district court should have
highly
conduct was
attenuated from its
comparators
relied on no
rather than con-
consequences
intended
and resulted in no
sider the
differences
conduct between
loss of life or economic destruction. Con-
McVeigh
Abu Ali and
and Nichols. Ante
sideration
these
factors
under
at 265.
3553(a)(6)
§
was not unreasonable.
holding,
In so
it
majority
is
fact the
C.
focusing
that errs.
it perceives
on what
offenses,
severity
to be the
of Abu Ali’s
Any
decision to deviate from the Guide-
majority
appreciate
weigh
fails to
range necessarily
sentencing
and
lines
creates
gravity of the actual
disparities
person
harms
devastat-
between the
being sen-
other, hypo-
position
judge
tenced —here
Ali—and
the import of relevant
thetical,
Gall,
defendants convicted of the same
at sentencing.
facts
factors is within or out-
of whether the sentence range, regard- and the Guidelines
side of have judges might of whether those
less they sentence had a different
selected judge. of the district place in the
stood today lip service to majority pays it to which is bound standard of review very engage proceeds then precludes. It af- novo review that Gall
de to the district court’s
fords no deference 3553(a) judgment
considered support “a chosen
factors as whole” parses the district
sentence instead disagreement with opinion
court’s to note single statutory application of
the court’s vastly oversteps This approach
factor. rejects review appellate
the bounds Booker, Rita, Gall,
the central lesson Kimbrough reviewing owe courts the overall sentence se-
deference both justifi- court and the
lected district given Proper
cations for that sentence.
application this deferential abuse-of-dis- *67 requires
cretion standard affirmance. from, regret, respectfully
I dissent majority’s holding. contrary HAXHIAJ, Petitioner-Appellant,
Blendi HACKMAN, Mar-
John United States
shal for Eastern District of Vir-
ginia, Respondent-Appellee.
No. 07-6836. Appeals, States Court
Fourth Circuit.
Argued: March 9, 2008.
Decided: June notes Miranda, regulate which is intended to agents ques- that the United States never of the conduct of American law enforcement face-to-face, tioned Ah Saudi ficers, apply extraterritorially for does not agents accept questions did all of eign significant officials absent involvement proffered agents, States United Martin- American law enforcement. See agents questions also asked of their Saudi dale, (quoting 790 at United F.2d 1131-32 However, government posits own. no Chavarria, (9th v. 443 F.2d States legal reason that these facts this en- remove also, Cir.1971)); e.g., Yousef, at see 327 F.3d counter from the realm of "active” or "sub- 145; Covington, United v. 783 F.2d States Moreover, participation. stantial” neither the (9th Cir.1985); United States case, majority any nor offers Nolan, (10th Cir.1977); 551 F.2d court, presents anal- situation Second, Kilday, 481 at 656. such a F.2d is, ogous one at issue here—that a case per holding potentially se could dis broad officers, foreign request which courage the United States and allies from its States, posed questions United that United cooperating investigations criminal of an drafted, States officials had and then allowed scope. international Both the United States interroga- United States officials to watch the governments may foreign be hesitant tion. engage many if the forms interaction Whatever "active” else or "substantial” questions by mere a United submission mean, participation may when United trigger States States law officer were to enforcement ques- propose law enforcement officials protections suspect Miranda for a in a full by foreign propounded foreign custody tions law enforcement country’s To and control. officials, questions impose particulars and those are asked in the all American of, process upon foreign presence and in criminal law enforce consultation officials, agents law goes ment too far in direction of States enforcement this must dictation, partic- with all its attendant resentments constitute "active” or "substantial” Laden, ipation. and hostilities. Such an unwarranted hin Accord United v. Bin States cooperation (S.D.N.Y.2001) F.Supp.2d drance to would be international formulation, (“Whatever especially fight global precise troublesome the exis-