RAGGI, REENA Circuit Judge: Background...............................................................132
I.
A. 2001: The Investigation Initial FBI into Tank Shah..........132 Co-Defendant Qaeda....................................132 B. Support Shah 2001: C. 2005: Offers Allegiance Shah and Sabir Attempt Swear to al To Support.............................................133 Provide Material D. Prosecution and Conviction.............................................133 II. Discussion................................................................134 §
A. 18 U.S.C. 2339B Unconstitutionally Vague Is Not Applied as to Sabir’s Case................................................................134 Statutory 1. The Framework...........................................134 Vagueness Sabir’s a. Claim.............................................136 Vagueness Sabir Fails to Demonstrate Facial or Overbreadth.........136 b. Sabir Fails To Unconstitutionally Demonstrate that 2339B Is Vague Applied to his Case...................................138 Judge Raymond 1. Chief designation, District J. Dearie of York, sitting by Eastern District of New
(1) Applied........138 Properly Reviewed as Vagueness Claim Is Sabir’s (2) As-Applied Review..........................139 The Standards for (3) Statutory Proscriptions Challenge to the Vagueness Fails.....................................................140 (4) 2339B Exception Does Not Render The “Medicine” Applied Unconstitutionally Vague as to Sabir..................142 Support Sabir’s Conviction............144 To The Trial Evidence Was B. Sufficient Conspiracy..............................................144 1. Count One: Attempt................................................145 Two: 2. Count a. Intent.........................................................145 Step................................................146 b. Substantial (1) Expands Attempt Step” Requirement The “Substantial Law...................................146 Beyond the Common
(2) Identifying Step Reference to Crime Substantial Being Attempted..........................................147 (3) Step Towards the Manifests a Substantial The Evidence Support in the Form of Personnel.....148 Provision of Material Step View of the Substantial The Dissent’s Mistaken Requirement..............................................149 *5 (a) Express Than a Radical Idea When He Did More Produced Himself as a Doctor Sworn To Work Under Qaeda................................149 of al the Direction (b) Subsequent of Personnel and the Provision The Provision Expert Personnel Are Distinct Services Such Support..............................150 Forms of Material (c) Attempt No Upholding Conviction Raises Double Sabir’s Jeopardy Concerns.....................................153 (d) Jury Finding of a Conduct Precluded No Government Step .......................................153 Substantial Reasonably Rejected Challenge............154 Sabir’s Batson C. The District Court Prospective #5...............................................156 1. Juror Prospective #26..............................................156 2. Juror #27..............................................157 Prospective 3. Juror Evidentiary Challenges Uniformly Without Merit...............158 D. Are Testimony...........................................158 Expert 1. Witness Testimony Requirements the Enumerated a. Kohlmann’s Satisfied 702...................................................158 of Rule Helpful Jury.....................159 Testimony Was b. Kohlmann’s Testimony c. Was Relevant'..............................159 Kohlmann’s Testimony Beyond d. Did Not Reach the Government’s Kohlmann’s Rule 16 Proffer...............................................160 Co-Conspirator
2. Statements..........................................160 and the with the Informant a. Shah’s Recorded Conversations 801(d)(2)(E).....160 Admissible Under Fed.R.Evid. Undercover Were Violate Sabir’s The Admission of Shah’s Statements Did Not b.
Right to Confrontation.........................................162 Prior Inconsistent Statement.........................................163 Evidence.............................................164 4. State-of-Mind Objections.................................................164 5. Rule 403 a. The Shareef Materials...........................................165 Mosque Incident...............................165 Poughkeepsie b. Mujahideen in Bosnia...................................165 c. Activities E. Issues .....................................................166 Summation
F. Juror Misconduct......................................................168 III. Conclusion Sabir, Background, Rafiq Defendant whose birth I. Wright, name is Rene is a United States A. 2001: The Investigation Initial FBI who, physician May citizen and licensed into Tank Shah Co-Defendant allegiance swore an oath of to al Rafiq Defendant Sabir is a New York promised to be on call to treat physician, licensed trained at Columbia organi- wounded members of that terrorist University, specializes who in emergency zation in Saudi Arabia. Convicted after a medicine. the Federal Bureau of jury trial in the United States District Investigation began investigating Sabir’s Court for the Southern District of longtime New friend Tarik possible Shah for the (Loretta money insurgents transfer of Preska, Afghan- Judge) York A. Chief part istan. As of that investigation, an conspiring provide actually provid- FBI confidential informant known as attempting provide material sup- “Saeed” cultivated a relationship with port organization to a terrorist in violation Shah, in the course of which Shah was 2339B, of 18 U.S.C. and sentenced to a speaking openly recorded about his com- incarceration, 300-month term of war) jihad (holy mitment to in order to challenges now his conviction on various (Islamic law) establish Sharia and about (1) grounds. Specifically, he contends that his wish to “deadly and danger- unconstitutionally vague 2339B is ous” martial arts training mujahideen (2) overbroad, the trial evidence was insuf- warriors). (“GX”) (jihad Gov’t Exh. 802T conviction, ficient to 1-2; 2-4; 3; GX 803T at GX 804T at prosecution’s peremptory jury 590-91, challenges Trial Tr. at During 601-03.3 these *6 conversations, (4) Shah bias, repeatedly exhibited racial identified evidentiary rul- 1; Sabir as “partner.” his GX at 801T GX ings deprived him right of confron- 3; 807T at see Trial Tr. at 903-04. (5) trial, tation a fair the district and/or court abused in its discretion addressing 200j: B. Shah Support al Offers alleged juror misconduct, and pros- Qaeda ecution’s rebuttal deprived summation him On March Saeed and Shah trav- of a fair trial. For the reasons explained eled Plattsburgh, York, New where in opinion, this we conclude that these Saeed Soufan, introduced Shah to Ali arguments merit. Accordingly, lack we undercover FBI agent posing aas recruit- affirm judgment of conviction.2 Qaeda.4 er for al In a series of recorded Qaeda separate today, 2. In a order issued we dismiss 4. Al is the most notorious terrorist appeal of Sabir’s co-defendant group Abdulrah- presently pursuing jihad against the man Farhane. leaders, February United States. its including Osama Ayman bin Laden and al Zawahiri, 3. Trial evidence indicated beginning (religious issued an infamous fatwa mid-1990s, decree) taught pronouncing Shah in fact duty it the martial individual locations, every arts classes at including numerous Muslim to kill Americans and their al- mosques Maryland two in suburban military and an- lies—whether civilian or —in York, upstate country other two in New where as well at that could be done. For a Qae- his own martial City. arts school in New detailed York discussion of this and al fatwa Participants in these up classes testified that da’s terrorist including activities to 2004— taught deadly weapons Shah them the bombings use of the 1998 of American embassies in Tanzania, fighting techniques, and lethal Kenya while exhort- and people; which killed jihad. them Cole, to embrace bombing the October 2000 of the USS freely city. about the Soufan, to move detailed blanche” Agent Shah meetings with Id. at 67. expertise and offered martial arts his Qaeda combat- train al abroad to
travel were, and To ensure that Shah Sabir Sabir, about also told Soufan ants. Shah fact, for knowingly proffering support ter- had doctor” who been emergency room rorism, purpose “an that the Soufan stated ” than 25 war, “[ejxpel for more is to jihad “trusted “our ... our friend[]” peninsula,” the Arabian id. Explaining infidels from 902T at years. GX identified “Sheikh repeatedly and he “heart,” proposed Shah he knew Sabir’s (in context a clear reference Osama” Qaeda pair, as “a join two men that the Laden) of that as the leader Osama bin 23. At a Id. me and a doctor.” 31, 34, 59, 87, effort, see, e.g., id. at 98-99. Saeed, re- meeting with Shah subsequent war to agreed to the need for quickly Shah person spoken that he had ported and the from “[ejxpel the Jews Christians plan. about Sabir Peninsula,” id. at while the Arabian next met Agent Soufan Shah fighting such a observed those Sabir Orlando, Florida, in at which April way in the of Allah” “striving war were syllabus agreed prepare time Shah deserving” of his id. at 66. help, and “most as well as a training arts course a martial mujahideen needing medical permit To questioned also Souf- training video. Shah Riyadh, him in to contact assistance Qaeda meeting about al suicide an at this personal with his provided Soufan whether he could re- bombings and asked numbers. See id. at telephone work ceive, training. provide, as well as noted 83. When Shah Soufan information
writing down this contact risk, security might create a Sabir encoded Swear Alle- Shah and Sabir C. 2005: using provided numbers code Attempt To giance to al at 49-53. Soufan. See id. Support Material Provide participated and Shah then ba- May 2004 the time between For most of an oath of a ritual in which each swore yat, *7 2005, out of the United May Sabir was and Qaeda, promising to al to serve allegiance States, military hospi- working at a Saudi protect to of Islam” and as “soldier ” 20, 2005, during a May Riyadh. tal in On and “the path on the of Jihad “brothers York, met with Saeed to New visit 106-08, Qaeda.” Id. at 114-16. path of al apart- Bronx Agent at Shah’s and Soufan further swore obedience to “the The men would told Soufan that he ment. Sabir pledge,” whom Soufan guardians Riyadh. He ex- returning to soon be Osama,” expressly identified as “Sheikh meeting mujahi- interest pressed i.e., Laden, and his second Osama bin agreed Arabia and operating deen Saudi command, Zawahiri.” Id. Ayman “Doctor assistance to who provide to medical 98,108-10,115. 15, GX 906T at
were wounded. See and Conviction D. Prosecution ideally situated suggested that he was He May on because he and Sabir were arrested provide such assistance Shah in the and thereafter indicted “carte Riyadh a car in and would have (2004). 11, lives; Report See also Commission September and the which took 9/11 Moussaoui, 263, 591 F.3d the World Trade airplane attacks on (4th Cir.2010); 2,973 re Bom Terrorist Pentagon, 273-74 which killed Center and Africa, bings East U.S. Embassies in on persons The National Commission —-see (2d Cir.2008). States, 103-05 Upon Attacks the United Terrorist Southern District of charges New York on on conspiratorial both the and substantive May between October 2003 and him, and, charges against on November they conspired provide sup- material 2007, the district court prin- sentenced him port or resources to the organiza- terrorist cipally to 300 months’ incarceration. This Qaeda, 2339B; § tion al see 18 U.S.C. appeal followed.
(2) provided or attempted provide such 2339B, §§ II. Discussion support, see id. 2. See Indict- ¶¶ 1-2, Shah, ment United States v. S4 05 § A. 18 U.S.C. 2339B Is Not Unconsti- 673(LAP) (S.D.N.Y. Cr. filed June tutionally Vague Applied as to Sa- 2005).5 The two counts used identical lan- bir’s Case guage to types describe three of material In raising a constitutional challenge to support provided, defendants attempt- conviction, his Sabir relies on the same provide, ed to or conspired provide: argument urged he in the district court in (i) one or more (including individuals unsuccessfully seeking dismissal of in- themselves) Qaeda’s to work under al dictment: § that 18 U.S.C. 2339B is void direction and control organize, and to vagueness and overbroad in defining manage, supervise, and otherwise direct proscribed. conduct (ii) See United States operation Qaeda, of al instruction Shah, F.Supp.2d teaching 496-500 designed impart a spe- (S.D.N.Y.2007). Upon review, de novo cial skill to further see illegal objectives (iii) Arriaga Mukasey, Qaeda, of al advice and assis- Cir.2008), scientific, we conclude argument tance derived from that the technical without merit specialized and other as 2339B knowledge presents no to fur- illegal objectives ther the overbreadth Qaeda. of al concerns and is not unconsti- tutionally vague applied ¶¶ Sabir’s con- Id. 1-2. The two alleged counts further duct. that Shah would provide “martial arts training jihadists,” and instruction for 1. The Statutory Framework
while Sabir would “medical sup- port jihadists,” wounded both defen- Preliminary to explaining our reasons “knowing dants that al engaged had for rejecting vagueness challenge, engages activity” and “ter- we review the statutory relevant frame- rorism.” Id. 2339B(a)(l) work. Title 18 U.S.C. im- After pleaded Shah guilty April 4, poses on liability criminal anyone who indictment, to Count One of the “knowingly trial provides material *8 against Sabir April commenced on 24. On foreign resources to a organiza- terrorist 21, 2007, May jury tion, guilty found Sabir or attempts or conspires to do so.”6 5. Shah and Sabir were not named in Counts of the Antiterrorism and Effective Death Pen- n indictment, Three and Four of charging alty ("AEDPA”), Act of 1996 Pub. L. No. 104- 132, Faruq 303(a), 1214, conspiring § Mahmud Brent with pro- (1996), to 110 Stat. 1250 providing 2339A, support supplement vide and § material in the 18 U.S.C. entitled "Pro- personnel terrorists,” viding form of organization support material terrorist which ¶¶ years Lashkar-e-Taiba. was enacted part See Indictment two 3-4. earlier as of the We do Violent charges not discuss these Crime further in Control and Law Enforcement Act, 103-322, opinion. 12005(a), § Pub. L. No. 108 1796, (1994). Stat. statutory pro- 2022 These 2339B, 6. Section "Providing entitled material visions substantively have been amended support Qaeda's designated first, or foreign resources to response twice: Septem- to al organizations” terrorist part States, was enacted as ber 2001 attacks by on the United states, 2339B(g)(4). § liability Section 2339A expressly conditions The statute pertinent part: knowledge person having on a (1) support the term “material or “designated is a ter re- organization
relevant tangible property, sources” means engaged or “has or organization” rorist service, intangible, including or or cur- activity” or engages in terrorist “terror rency monetary or instruments or fi- specified pro various ism” consistent securities, services, nancial financial 2339B(a)(1); § visions law. 18 U.S.C. lodging, training, expert advice or assis- Project, see Holder v. Humanitarian Law tance, safehouses, false documentation - -, U.S. S.Ct. identification, or communications equip- (2010) (holding that “knowl L.Ed.2d 355 ment, facilities, weapons, lethal sub- edge organization’s connection to about the (1 stances, explosives, personnel or terrorism, intent specific further the more individuals who be or include activities,” organization’s terrorist is men oneself), transportation, except and required prove tal violation of state materials; religious medicine or 2339B).7 § (2) the “training” term means instruc- “material identifying support or teaching designed impart tion or to a provision designated resources” whose skill, specific opposed general as proscribed, is organization terrorist knowledge; and
§ 2339B
the definition
references
“expert
the term
advice or assis-
(including
term “in section 2339A
the defi-
tance” means advice or assistance de-
‘training’
‘expert
nitions
and
scientific,
advice
from
rived
technical or other
section).”
Id.
specialized
knowledge.
assistance’
3,000
Strengthening
people,
Uniting
by
nearly
that killed
America
innocent
Required
Appropriate
plotting
again.
Providing
Tools
to In-
that is
strike us
And we
(“USA
tercept
them.”);
Terrorism
and Obstruct
Act
will do
it takes to defeat
whatever
Act”),
107-56, 810(d),
Lichtblau,
§
Pub. L. No.
PATRIOT
Eric
Bush Seeks to
Con-
Affirm
(2001);
second,
Times,
Terror,
tinuing
Aug.
Stat.
War
N.Y.
Intelligence
proposal
Reform and Terrorism Preven-
(quoting
at A10
administration
108-458,
("IRTPA”),
Congress
L.
“acknowledge again
tion Act
Pub.
No.
and explic-
(2004).
6603(c),
itly
engaged
Stat.
3762-63
remains
this nation
Qaeda
As
convicted under
Sabir stands
the latest
armed
... and
conflict with Al
associ-
statute,
organizations,
already
we cite
in this
pro-
iteration of
thereto
ated
have
who
opinion.
claimed
at war with us and
themselves
who
Americans”).
slaughter
are dedicated to the
Qaeda’s
The
for its
executive locates
actions in
designation
organi-
7. Al
Congress's September
2001 Authorization
219 of
pursuant
zation
to Section
the Immi-
Force,
107-40,
Act,
Military
for Use of
Pub. L. No.
gration
Nationality
U.S.C.
See,
(2001).
55,112
e.g.,
Stat.
Harold
undisputed.
Reg.
Fed.
See 64
Koh,
Adviser,
(1999);
51,088
Hongju
Department
(2001);
Legal
U.S.
Reg.
66 Fed.
68 Fed.
State,
56,860
Meeting
(2003).
the Annual
Reg.
Address to
The
States’ re-
not, however,
Society
American
International Law:
sponse to al
has
been
International
Obama Administration and
Law
designation.
such
Two
limited to
successive
*9
(Mar.
2010),
http://www.state.
available
that
administrations have indicated
the nation
Qaeda.
gov/s/l/releases/remarks/139119.htm (explain-
is
"war” with al
Press Release
Qaeda's
light
"horrific”
that in
of al
at-
Strength-
by
of
President Obama on
Remarks
States,
the
the United
ening
tacks on
Intelligence
Security,
and Aviation
Jan.
Qaeda”
("We
We
is “in an armed conflict with al
that is
are at war.
are at war
Qaeda,
by
against
far-reaching
justified
both international
domestic
network of
9/11,
law).
violence and hatred that attacked us on
2339A(b).8
pert
§
advice and assistance” to terrorist
Id.
organizations are
afford in-
overbroad and
respect
“person-
of
provision
With
persons
sufficient notice to
tra-
who
nel,” §
liability
persons
2339B limits
prohibitions
inadequate
duce those
“knowingly provided, attempted
have
who
for
standards
authorities who must enforce
conspired
or
a for-
provide,
them. He contends further that the statu-
eign
organization
terrorist
or more
tory exception
vague
too
“medicine” is
(who may
include him-
individuals
be or
put
to have
him on
it did
notice that
not
self)
organiza-
to work under that terrorist
encompass his
as a
consultative services
organize,
tion’s direction or control
toor
physician.
supervise,
direct
manage,
or otherwise
that
operation
organization.”
Id.
a.
Fails to
Demonstrate Facial
2339B(h).
§
The statute states
“[i]n-
Vagueness or Overbreadth
independently
who act entirely
dividuals
§
Sabir contends that
is
2339B unconsti
foreign
organization
terrorist
ad-
tutionally vague both on
face and as
its
goals
objectives
its
or
shall not
vance
applied to his
In support
case.
of his
to be
working
considered
under
for-
challenge,
facial
primarily
Sabir relies
on
eign
organization’s
terrorist
direction
the overbreadth doctrine. This confuses
Id.;
control.”
see Holder v. Humanitari-
Supreme
the issue. As the
recently
Court
Project,
an
(empha-
Law
137 Williams, that, on Con despite powers conferred 553 v. speech. of Amendment, he held gress by Eighteenth 1830, 292, 170 L.Ed.2d 285, 128 S.Ct. U.S. prescribe to such medi right constitutional (2008) original). Sabir’s (emphasis in 650 patient’s he deemed best to effect cines as applicable legal standards recitation Gabbert, cure); also Conn v. 526 U.S. see conclusory declaration and his 291-92, 1292, 286, 119 S.Ct. 143 L.Ed.2d to close § do not come is overbroad 2339B (1999) (observing is no due that there 399 this burden. carrying practice process right profession to one’s reject- Court stated Supreme As the process restraints and that due free of challenge to Amendment a First by prohibition of only “complete violated is 2339B, free to persons § leaves the statute Dent v. right engage calling”); to the they any topic,” anything wish “say 9 Virginia, U.S. S.Ct. West v. Humani- including terrorism. Holder (1889) (“[Tjhere 231, is no L.Ed. 623 2722-23. Project, at Law 130 S.Ct. tarian right prac of to arbitrary deprivation [the advocacy prohibit independent not It does where exercise is not tice its medicine] 2723, It id. at 2728. does any kind. See of permitted comply of failure to because membership in punish or mere prohibit not imposed by the state for conditions organizations. with terrorist or association particu of protection society.”). With 2723, Thus, it does not at See id. Amendment, lar reference First seek Parent plurality of the Court in Planned Pennsylvania Southeastern Ca hood form or in the suppress opinions ideas to of 2791, 120 U.S. 112 S.Ct. sey, 505 Rather, speech.’ [it] political ‘pure (1992), rejected a First L.Ed.2d ‘material which support,’ prohibits] challenge law re Amendment to state not form of often does take the most provide to quiring physicians patients does, the at all. And it speech when medical specific information about certain carefully only a drawn to cover statute sure, risks, observing that “[t]o to, category of under speech narrow not to rights First Amendment physicians’ of, with for- coordination direction only part ... speak implicated, are but knows to groups speaker eign medicine, subject to rea practice organizations. be terrorist licensing regulation sonable do not Id. at 2723. Such circumstances State,” (plurality id. at S.Ct. 2791 overbreadth. evidence claim Because Sabir thus cannot opinion). extent Sabir asserts To treatment for “right” medical § “a limiting overbroad in doc 2339B is ... that is not terrorists “subordinate medicine,” Appel practice right tor’s Congress make laws neces power 14-15, authority Br. at he cites no lant’s defense, sary proper” the nation’s right locating such a within the Constitu Yellowley, 272 U.S. Lambert I, tion, 210; § much the First Amendment. less art. he see U.S. Const. S.Ct. § un a claim 2339B is long Court has held cannot mount Supreme constitutionally overbroad. right no medicine practice “there is police pow is not subordinate to the which overbreadth Nor can Sabir demonstrate power ... er the states and also to requiring by faulting 2339B for not necessary and Congress to make laws ... “specific to further proof of intent the exercise its constitutional proper” 24; Br. at Appellant’s activities.” authority. Yellowley, Lambert v. U.S. Project, v. Humanitarian Law see Holder (construing 71 L.Ed. 2339B S.Ct. intent). J.) The ar- of such (Brandeis, require proof claim to (rejecting physician’s *11 138
gument
challenges
not
in the
to a
as
grounded
applied
is
First
statute
Fifth,
in
specifically,
Amendment
Chapman
but
defendant’s case.
v.
See
United
States,
process requirement
467,
in the due
500
U.S.
111 S.Ct.
supported by
(“First
conviction
evidence of
(1991)
be
In Sabir fails to state claim— Holden, 142, 148, Blodgett 275 U.S. much less demonstrate —that 2339B is (1927) (Holmes, J.); S.Ct. L.Ed. 206 either facially vague in violation due Sullivan, see Rust U.S.
process or overbroad in violation (1991) 1759, 114 S.Ct. L.Ed.2d 233 (noting First Amendment. “categorical” duty courts’ to seek “every ... reasonable construction to save a stat
b.
Fails
To Demonstrate that
unconstitutionality”
ute from
(emphasis in
Is Unconstitutionally
2339B
original;
internal quotation marks omit
Applied
Vague as
to his Case
ted)).
Vagueness
Properly
Claim Is
Supreme
To the extent the
Court has
Applied
Reviewed as
suggested that a
challenge may
facial
In
the absence
First
against
Amendment con- maintained
statute
does not
cerns,
generally
vagueness
courts
view
protected by
reach conduct
the First
Project,
applied
Holder v. Humanitarian Law
review even
First
where
Amendment
Supreme
expressed
preference
rights
implicated.
Court
for as-
are
See
139
is,
“statute,
fact,
challenged
as writ-
Amendment,
test
whether the
the identified
analysis,
as-applied
ten,
on
re
only a variation
notice sufficient to alert ‘ordi-
provides
to show “that the
quiring the defendant
nary
prohib-
is
people
to] what conduct
[as
”
in all
impermissibly vague
of its
law is
at
Arriaga Mukasey,
ited.’
v.
521 F.3d
Estates
Village
applications.”
Lawson,
of Hoffman
224
v.
461
(quoting Kolender
U.S.
Inc.,
Estates,
v.
455 U.S.
Flipside
1855).
Hoffman
357,
at
test does not
103 S.Ct.
This
“
”
1186,
497,
489,
102 S.Ct.
Applied Review
was not
the enforcement before the court
latitude that
the result of
unfettered
as-applied review of the “notice” re-
On
factfinders
quirement of due
ask law enforcement officers and
process, courts
Morales,
precluded
Supreme
Chicago
way that
City
527 U.S.
court
in a
v.
(1999) (de-
adopting a
Court from
narrow construction
S.Ct.
144 L.Ed.2d
id. at
claring
loitering
avoiding constitutional concerns. See
local
ordinance unconstitu-
60-64,
1849;
Sabir,
face),
vague
see
tionally
cited
also
its
J.,
Rybicki,
(Raggi,
approach to
facial
150-52
warrants no different
(discussing
distinguishable
concurring)
vagueness claim.
circumstances
Morales
precluded
case in
the ordinance
Morales that
from this
there
Estates/Sal-
Hoffman
(1)
analysis). Because
these con-
in-
emo
none of
reached
substantial amount of
issue
conduct, (2)
present,
rely
require-
cerns
on traditional
a mens rea
is here
nocent
lacked
concerns,
considering
as-applied
Sabir's
mitigate
review in
overbreadth
ment
vagueness challenge.
interpreted by
supreme
been
the state
had
¶¶
other,
Qaeda,
might
hypothetical applica-
serving
have
Indictment
1-2.
”
(quoting
tions of the statute.’
Id.
Farrell Holder v.
Project,
Humanitarian Law
494).
Burke,
449 F.3d at
Supreme
person
held that
Court
of or-
“[a]
*13
dinary intelligence would understand that
case,
principles
these
to
Applying
this
on resolving disputes
instruction
through
vagueness
no
identify
unconstitutional
international
law falls
within
statute’s
§in
applied
2339B as
to
case.
Sabir’s
definition
it
‘training’
imparts
because
”
skill,’
Vagueness Challenge
‘specific
Sabir’s
to the
not ‘general knowledge.’
Statutory Proscriptions Fails
S.Ct. at
That conclusion is even
here,
apparent
more
the trial
where
evi-
contends that
the statutory
dence showed that the martial arts train-
“training,” “personnel,”
terms at
issue—
proposed
Shah
provide
specific
to
was
“expert
and
assistance and advice”—are
deadly
hardly
and
and
a matter of general
too
inherently
vague
provide
to
the notice
See,
(re-
knowledge.
e.g.,
GX 814T 3-4
required by
process.
direction
due
cording
explanation of
Shah’s
how to kill a
general complaint
Such a
is now foreclosed
throat).
man by ripping
Moreover,
out his
by Holder v.
Project.
Humanitarian Law
al Qaeda’s history
using
for
murderous
Supreme
Court there observed that
terrorism in an attempt to intimidate civil-
require
these terms did not
the sort of
ian populations
governments,
see 18
“untethered,
subjective judgments” that
§
(defining
U.S.C.
terrorism)
par-
had
it to
down
compelled
strike
statutes
—
ticularly American
civilians
the United
tying
culpability
vague
criminal
con
government
States
so well known that
cepts
as
or
“annoying”
such
“indecent”
—is
no
person
reasonable
could doubt
conduct.
To the extent Sabir was convicted of knowingly provides, individual attempts to provide conspiring Shah to provide, conspires “train- or a foreign ing” i.e., “instruction or teaching organization de- with one or more — signed impart skill, a specific individuals, himself, op- as including “to work un- posed general knowledge,” der organization’s U.S.C. that terrorist direction 2339A(b)(2) a known terrorist or- or to organize, manage, control or super- —to ganization, a person “ordinary vise, intelli- operation.” otherwise direct [its] gence,” Grayned Rockford, 2339B(h). v. City Quite U.S.C. apart from U.S. at would require Shah’s to act offer as a arts martial trainer nothing than more “common for understand- that organization’s pursuit ing,” George, jihad, Jordan De U.S. at offer to serve as an on-call recognize organization, S.Ct. doctor standing this for the ready prohibition plainly encompassed mujahideen “martial treat wounded in Saudi arts training jihadists” Arabia, squarely instruction falls within the core of independently, adequately than defeating suggestion rather prohibition, this vagueness). con- notice that his avoided that he lacked either or that statute was unlawful duct prohibition on the Nor is statute’s to him. arbitrarily respect enforced and ad- provision “expert assistance 494; Burke, 449 F.3d at Farrell v. organizations vice” to terrorist unconstitu- at 129. Rybicki, 354 F.3d tionally vague applied to Sabir. As conclusion, avoid In an effort to observed, correctly court the med- district life-saving argues his offer of a licensed expertise physician ical simply treatment was consistent medical *14 “scientific, or plainly constitutes technical physician as a obligations his ethical knowledge” specialized under 18 other sup- any provision of of and not reflective § v. 2339A.11 See United States U.S.C. rec- organization. port for Indeed, Shah, n. F.Supp.2d 474 at 497 5. this characterization. support does not ord expertise requires specialized more such for performing not prosecuted knowledge than the instruction in relief hospital emergency duties as a routine Supreme held application Court treating persons physician, admitted room “comfortably” within of scope to fall Qae- al coincidentally happened to be who v. “expert advice or assistance” Holder prosecuted for Sabir was da members. Project, at Humanitarian Law 130 S.Ct. Qaeda on-call offering to work for al as its Any person ordinary intelligence 2720. of doctor, mujahi- available to treat wounded readily recognize expert such would brought hospi- not to deen who could (well scope outside the of one’s assistance they likely would precisely tal because duties), hospital regular the stated activities. been arrested for terrorist have object permitting fighters of al to 49, offering 906T GX at See ” exactly “on the of Jihad path advance Qaeda, simply al not support for Sabir did support proscribed by of material the sort his oath. He swore Hippocratic honor v. Arriaga Mukasey, § 2339B. See 521 allegiance Qaeda, al further oath of 224; Rybicki, at States v. F.3d clear his treatment of wound- making Geren, 129; Watson v. 354 F.3d cf. as provided would be not mujahideen ed (2d Cir.2009) 115, 119, (up- F.3d 134 of but as “one independent physician objector conscientious claim of holding Islam,” obey duty the soldiers of bound who to serve in United doctor refused leaders, including Qaeda’s bin al Osama Army treating based on belief that States Laden, his “brothers protect fellow would be functional wounded soldiers ” path and “on the of path of Jihad on weaponizing beings). of human equivalent Qaeda.” at 114-16. No reasonable al Id. Further, proffered sup- because Sabir’s understanding with a of person common as training, person- whether viewed objectives port, could doubt Qaeda’s murderous assistance, nel, squarely fell so support squarely expert that such material fell § core prohibition, of of 2339B’s prohibitions 2339B. within within that law to conduct Project, application Law 130 the Holder Humanitarian arbitrary limiting product have (holding at 2721 that statute cannot been S.Ct. Burke, Farrell v. working under ter- law enforcement. See “personnel” persons control, at 494. organization’s direction or rorist 702, governing expert witnesses. "expert term advice
11. This definition for the
Fed.R.Evid.
or assistance” is familiar
from
”
(4)
Co.,
337,
The “Medicine
Does
Exception
341,
Not
son v. Shell Oil
519 U.S.
(1997), and,
§ 2339B Unconstitutionally
Render
S.Ct.
To Support tent.”). Sabir’s Conviction trial evidence this case easily satisfied these elements. contends that the evidence was support insufficient to conviction. The Testimonial evidence established sufficiency, rule constitutional derived long Shah and Sabir had voiced inter Clause, from the Due Process instructs supporting jihad mujahideen. est conviction cannot be obtained “ex See, e.g., Trial Tr. (reporting at 193-96 cept upon proof beyond a reasonable doubt jihad Shah preaching support for Osa every necessary fact to constitute the ma bin Laden in late 1990s at Poughkeep charged.” crime ... Winship, In re mosque); (recounting sie id. 358, 364, U.S. S.Ct. 25 L.Ed.2d mujahideen 2003 conversation with fighter (1970); v. Agui accord United States inquiring help ji how Sabir could lar, Cir.2009). 585 F.3d A ). against had It is background that a raising sufficiency defendant challenge jury would listen the recorded conversa a heavy reviewing bears burden because a 4, 2004, tion March in which pro Shah totality court must consider the posed to a agent federal undercover evidence in the light most favorable to the Shah and Sabir —close friends for 25 prosecution uphold the conviction if years join Qaeda “a pair, me and a — “any rational trier of fact have could found doctor,” organization’s pur beyond the essential elements the crime jihad. suit GX 902T 23. More sig Virginia, reasonable doubt.” Jackson nificantly, during May 2005 meet 443 U.S. ing at which Shah formally and Sabir (1979) (emphasis L.Ed.2d 560 original); allegiance promised support swore Aguilar, accord United States v. *17 Qaeda, al by providing Qaeda Shah al at 656. Applying principles these to Sa training members with martial arts case, reject sufficiency bir’s we his chal by treating Qaeda Sabir al wounded mem lenge as without merit. Riyadh, 106-16, bers see 906T GX acknowledged Sabir he that and Shah had 1. Conspiracy Count One: long talked “for a about time” supporting In his challenging conviction for jihad, id. plainly at 110. Sabir viewed his conspiracy provide to support material to a May Shah’s actions at the meeting organization, known terrorist Sabir con part agreement. their common tends principally government that Agent When Soufan observed that neither prove failed to an agree existence of man was obligated support Qaeda, to al ment to violate 2339B. are not per We responded Sabir that to fail to do so would suaded. To conspir convict a defendant of (Shah)” be my “abandon[ to brother ] acy, government beyond must prove respect very thing to agreed “the we upon reasonable doubt “both the existence of ... in the place.” first Id. conspiracy alleged and the defendant’s membership in it.” Accordingly, identify United States Cha no merit in Sa- vez, Cir.2008); sufficiency see bir’s to challenge his conviction (“The also id. of any essence conspiracy conspiracy provide for support material is, course, agreement, and in order to to a known terrorist organization. his work in a After Sabir advised that Attempt
2.
Two:
Count
put him in
Riyadh military hospital would
argu
meritless is Sabir’s
Equally
years, Agent
Arabia
Saudi
for two
Soufan
that
evidence was insufficient
ment
that
could
help
“[a]s
stated
attempting
conviction for
support his
Mujahid.”
... as a
GX 906T at
a doctor
support to a
for
material
known
provide
assent,
only signaled
he
19. Sabir not
A
organization.
conviction
eign terrorist
a need
“feel sure within
emphasized
move,
myself that if I make
certain
that a defen
requires proof
attempt
for
to be
Id. To
going
move is
effective.”
(a)
to commit the
had the intent
dant
assurance,
provide
Agent
Soufan clar-
(b)
engaged
conduct
object crime and
helpful
could
to al
ified how doctor
its
step towards
to a substantial
amounting
pursuit
jihad.
He stated that
Qaeda’s
See, e.g.,
commission.
bin
himself had told Soufan
Osama
Laden
(2d Cir.2003).
Yousef, 327 F.3d
if they
“we
doctors
are trusted.”
need
explained that
at 32.
“broth-
Id.
Soufan
a.
Intent
get
sometimes
“hurt with
bullet”
ers”
“operation[s].”
during “training” and in
sufficiency
challenge the
Sabir does
“go
cannot
to a
they
Id. at 48-49. Because
establishing his intent to
evidence
organization needs “doctor
hospital,” the
support
foreign
to a
ter-
material
provide
keep
...
...
protect
[to]
them
brothers
could he.13
Nor
organization.
rorist
healthy.” Id. at 49.14
the other brothers
already
addition to Sabir’s statements
readily
agreed
sup-
[132,
supra
opinion, see
quoted in this
stating,
you
me
another
port,
give
“Let
140, 143-44],
powerful ev-
which constitute
number,”
he
whereupon
supplied
per-
intent,
following
requisite
idence
number, which,
telephone
sonal mobile
May
assistance,
transcript excerpts
from
into
with Soufan’s
he rendered
Id. at 48-50.15 Sabir understood
support this element.
code.
meeting further
(internal quotation
attempted
ghanistan
marks omit-
required
prove
13.
intent
ted)).
organ-
foreign
material
not be
with an intent
ization should
confused
intent
Just as
latter
to further terrorism.
provided Soufan with a
Sabir had earlier
prove
required to
an actual
2339B
is not
response
to the undercover
contact number
violation,
Humanitarian Law
see Holder v.
“anything”
agent’s
offer of assistance
*18
("Congress
Project,
plainly
S.Ct. at 2717
130
might
"need”
Saudi Arabia. GX
Sabir
necessary
offer,
for a
spoke
the
mental
state
to
extending
the un-
this
906T
2339B,
knowledge
chose
violation
and it
clear
such assistance
dercover made
that
organization’s connection to terror-
about the
mujahideen:
“[W]e
come from
have
would
ism,
organi-
specific
not
further the
brothers,
God,
intent to
mujahideen....
thank
lot of
activities."),
it
re-
zation’s terrorist
is not
very
[Tjhey
happy
will uh be
to assist another
conspiracy
attempt
to
quired
prove a
to
[Tjhey
jobs
still work in their
brother....
Nevertheless,
in this
violate that statute.
government
...
uh their hearts
but
case,
proving Sabir’s
much of the evidence
right
track.”
Id. at 15
and minds are on
support
provide
also indi-
intent
to
material
(italics
transcript
from
reflect
translation
terrorism.
cates his intent to further
English).
prompting,
to
Without
Sabir
Arabic
them,”
stated,
propos-
to
"I would like meet
"Even if
ing
exchange of contact numbers:
to
doc-
an
of terrorist efforts
recruit
14. Evidence
give
person
I can
you just
one
contact
v.
me
tors
adduced
trial
in United States
was
there,
Cir.2010)
Abu-Jihaad,
102,
give
my, my
you
mobile
but I can
109
over
630
there,
give.”
can
I
post soliciting
phone over
number
(describing
persons to
website
at 40.
in Af-
Id.
medical services”
"battlefield
Step
b.
purpose
that the
code
to conceal
Substantial
working
Qaeda:
for al
the fact that he was
”
(1)
Requirement
The
Step
“Substantial
“may
learn the number
Persons who
Attempt
Expands
Beyond the
significance.... They
...
[its]
understand
Common Law
recognize
telephone
not even
it as a
step” requirement
for
“substantial
number.” Id. at
understood
51. He also
attempt
from
derives
the American Law
number
be provided
the coded
would
Code,
Institute’s Model Penal
which in the
Qaeda operative,
to a
al
who would
trusted
early
sought
1960s
to
the ambit of
“widen
identify himself as “Mus’ab” when contact-
Ivic,
attempt
liability.” United States v.
ing
jihadist.
Sabir on behalf of a wounded
(2d Cir.1983)
J.)
51,
(Friendly,
700 F.2d
information,
responded
to
“God
(Pro
5.01(l)(c)
(citing Model Penal Code
(italics in
Id. at
willing.”
transcript
1962)),
posed Official Draft
overruled
English).
reflect translation from Arabic to
grounds by
Org.
other
National
Wom
for
en,
Scheidler,
249, 254-55,
Inc. v.
510 U.S.
conversation,
Still
later
in the
when
(1994).
most help.” Id. at 66. J.) (Holmes, N.E. (recogniz When Soufan further stated it was preparations may that “some amount mujahideen attempt” they difficult take hospital “very when come near act”). accomplishment to the treatment, By emphasized that his requiring proof only of a step” “substantial military him identification allowed to travel crime, in furtherance of the intended freely Arabia, thereby around sug- Saudi Model Code ushered in a broader view of injured gesting go he could attempt. person. “[I]t’s almost like carte effectively you go you
blanche.... It’s like can This court adopted where the Model attempt Code’s formulation of in United go want to with anybody this.... And Stallworth, 1040- it, they sees don’t touch you.” Id. at 67. (2d Cir.1976). The Stallworth defen- Later, sought Soufan to confirm this un- dants were arrested their planned when derstanding, stating very ID will be “[t]hat *19 robbery armed “in progress” was “[a]ll good you for ... can you because definite- that stood between and success was [them] mujahideen now,” ly help to which Sabir group agents police a F.B.I. offi- of “Yes, responded, yes.” at 69. Id. cers.” Id. at 1041. such As evidence With clearly evidence of his intent thus would have attempt demonstrated even established, Sabir sufficiency focuses his law, significance under the common of challenge on step” the “substantial ele- rests on case its facts but on the ment of attempt. approving court’s citation to the Model
147
v.
(quoting
at 66
United States Man-
range
a
of con- F.2d
identification of
Code’s
988);
F.2d at
proximate
ley,
desired
632
accord
always
duct—not
might
Crowley,
nevertheless con-
at
An act that
v.
318 F.3d
408.
criminal end—that
“strongly
step
step
a
when
may
substantial
constitute a substantial
towards
stitute
of the defen-
may
of the firmness
corroborative
the commission of one crime
not con-
5;n.
intent.” Id. at 1040 &
criminal
with
to a
step
respect
dant’s
stitute such a
differ-
(observing
applica-
that
id.
see also
at
generally
ent crime. See
United States v.
impor-
“emphasizes
Ivic,
of Model Code
tion
(observing
preparation,
example, in
v.
For
United States Delvec-
commission
necessary
act
before the actual
chio,
Cir.1987),
any
agreement
or
heroin”
reached
with
of
Subsequent
Expert
Provision
Ser-
supplier
acquire
heroin
heroin for
of
by
distribution).
vices
Such Personnel Are Distinct
planned
Support
Forms Material
of
context,
Viewed in this
oath
Sabir’s
allegiance
Qaeda
al
Judge
evidenced more than
Chief
Dearie submits that
the
“mere
in that
membership”
by
terrorist or-
time and
distance
be traveled
ganization. Holder v.
actually provided
Humanitarian Law before he
any medical
Project,
(holding
Qaeda
not
otherwise,
concluding
Judge
Chief
personnel’s
the
step towards
substantial
that the recruiter
in the
Dearie submits
or not Sa-
of services. Whether
provision
He has
hypothetical
something.
“has done
were a substan-
May
2005 actions
bir’s
the
provided
organization.”
to
service
provision
expert
of
medical
step
the
tial
contrast,
By
he submits that Sabir
Id.
terrorists,
that
we conclude
to
services
conspire.”
more than
nothing
“has done
in the
step
provi-
a substantial
they were
disagree.
Id. at 179.22 We
Section
personnel.
himself as
sion of Sabir
2339(B)
providing personnel
criminalizes
that,
illustrate,
instead of
assume
To
(ie., volunteering
through self-recruitment
doctor
al
himself
an on-call
to
offering
as
to
the
of a
oneself
serve under
direction
a doctor who
Sabir had recruited
Qaeda,
no
than
organization)
terrorist
less
identically
to
was,
respects,
situated
in all
through
another
(securing
recruitment
that Sabir then
Assume further
himself.
direction).23
to
such
person
serve under
meeting
in New
brought
that doctor to
as an
doc-
By volunteering himself
on-call
allegiance to
swore
York where
doctor
rendered,
al
at-
Qaeda,
tor for
Sabir
or
al
supposed
Qaeda, promised
render,
that
tempted
organization as
to
an
he
work as
on-call
member that
would
in producing personnel
much of a service
gave
organization,
for
doctor
as the recruiter who solicited a doctor for
so that wounded
contact numbers
member
purpose.
that
To hold otherwise would be
could reach the
jihadists
Saudi Arabia
apply
sufficiency
standard of
to
different
Even the
necessary.
when
dissent
doctor
provision
on
personnel depending
of
would be suf-
concedes
such evidence
being provided is one-
person
whether the
prove
“guilty
attempting
ficient
another,
self or
a distinction for which
although
personnel,”
the re-
provide
equal-
in a
support
there is
statute that
no
provide actual
cruited doctor would not
ly proscribes
provision
of oneself or
time in
services until some
medical
of a
another to work under
direction
from
and after he traveled
New
future
organization.
terrorist
Dissenting Op.,
to Saudi Arabia.
York
suggests
a con-
Judge
Chief
Dearie
Sabir would be
post at
Because
[179].
stitutional concern arises when a defen-
provide personnel
guilty
attempting
prosecuted
himself
hypothesized,
providing
we dant
in the circumstances
party
personnel
rather
than a third
as
necessarily
it
follows
he is
think
a de-
facts. He is because in the former circumstance
equally guilty on the record
“
effect,
punished for, in
fendant
‘could be
attempting
himself
guilty
speak
support
out in
May
providing
al Qaeda
[himself]
personnel
principles
foreign
or
of a
yet
attempting
program
to of
guilty
if he is
even
course,
Dictionary),
import
conspire
English
Oxford
is of no
could not
22. Of
conspiracy
statutes,
agent. Sabir’s
the undercover
18 U.S.C.
here where the relevant
supported by
case is
conviction
2339B,
2339A(b)(l),
"personnel”
§§
state that
Shah,
agree-
agreement an
co-defendant
may be or
means "1 more individuals who
May
ment reached even before
Franklin,
oneself,” see, e.g., Colautti v.
include
meeting.
U.S.
392 n.
(1979) (referencing rule of con-
L.Ed.2d 596
dictionary
"per-
The fact
defines
statutory definition controls
struction that
"body
people,”
by
reference to
sonnel"
terms).
meaning
Dissenting
(quoting
Op., post
7]
n.
[180
see
organization,
activity protected
terrorist
mer focuses on submission to the direction
”
the First
Dissenting
Amendment.’
and control of a
organization.24
post at
Op.,
(quoting
[182
n.10]
importance
The
of the distinction we
Stewart,
draw between the
necessary
evidence
Cir.2009) (dictum)).
Court,
Supreme
prove
provision
a defendant’s
personnel
however,
otherwise, explain-
has now held
organization
person-
to a terrorist
and that
the material
statute
subsequent provision
nel’s
of services to
persons
engage
“indepen-
leaves
free to
*24
organization
the
beyond
reaches
this case.
advocacy,”
only
proscribing
dent
conduct
Experience
organiza-
teaches that terrorist
to,
with,
“directed
or con-
coordinated
frequently
tions
persons
recruit
into their
by foreign
trolled
groups.”
terrorist
places
at times
ranks
from
removed
v.
Project,
Holder Humanitarian Law
130
any
they
Thus,
might
service
render.
2728;
(observing
S.Ct.
see id. at 2721
supplies
someone who
suicide
or
bombers
‘personnel’
that
2339B “makes clear that
pilots or chemists or
simple
not
independent
advocacy”
does
cover
doctors or
foot
to
(emphasis
original)).
soldiers
organization may
terrorist
reasonably be
provide
understood to
the
Here,
there
question
is no
that Sabir
organization with
support
material
the
providing
was
himself to
under
work
personnel
form of
when the recruited indi-
direction and control
Qaeda
jury
of al
—the
pledge
viduals
to work under the direction
him solemnly
heard
By
swear to do so.
organization,
of the
they
even though
may
dismissing this evidence as “insubstantial”
upon
not be called
to
any particular
render
“immaterial,”
demanding proof
of
months, years,
service for
or
all. By
greater
level
“engagement, activity
of
or
the same reasoning, when
conviction,
person sup-
compliance”
support
to
Dissent-
plies himself
Op.,
[183],
pilot
as the
ing
post at
bomber or
or
dissenting
our
col-
persists
sought by
doctor
league
organiza-
conflating
provision
terrorist
tion,
personnel
provides
he
provision
certainly
attempts
services
to
—or
by
personnel.
that
provide
While the latter form
support in
form
—material
support
of material
may
proof
require
personnel
as soon as he
to
pledges
work
particular engagement
activity,
or
the for- under the direction of
organization.
Many
(D.Conn.2009)
district
F.Supp.2d
court cases cited
(holding
401
control,
dissent
treat direction and
not a
that defendants transmittal of national de
particular
activity,
level of
the critical
as
fact
publisher
fense information to
linked to al
Qaeda
assessing
provision
personnel charge.
was
prove
insufficient to
defendant’s
See,
Taleb-Jedi,
e.g., United States v.
provision
566
personnel
of himself as
in absence
(E.D.N.Y.2008)
F.Supp.2d
(rejecting
176
of evidence as to whether information was
challenge
defendant's First Amendment
provided
response
publisher's request—
proscription
providing personnel,
on
observ-
permit
would
finding
which
that defendant
ing
prohibits
person
statute
from
provided
work-
personnel
had
himself as
on defendant's
— or
organization’s
under “terrorist
not),
direction
whim —w h ich would
aff'd
work);
benign
or control’’
144;
no matter how
grounds,
other
630 F.3d at
United States
Lindh,
Warsame,
F.Supp.2d
United States v.
F.Supp.2d
(E.D.Va.2002) (holding
provision
(D.Minn.2008)
(holding
par
that defendant’s
Qaeda
personnel requires proof of
than
ticipation
more
defen-
camp
in an al
training
—a
presence’’ among
dant's "mere
members of
easily
circumstance where control could
be
"
organization:
'Personnel' refers to
provision
inferred — sufficed to demonstrate
employees
individuals who function
personnel,
as
himself
but mere communica
quasi-employees
who serve under the
tions with al
associates after return to
—those
foreign
control.”);
entity's direction or
see
Canada — a circumstance where control was
Abu-Jihaad,
United
not).
also
apparent
not
— could
circumstances,
attempt
personnel
ac
An
organization
provide
does
both
action,
asset,
require proof of
an
person
not
concerted
important
reserve
quires an
conspiracy.
element of
More-
planning
its
of essential
nel,
can facilitate
which
over, a conspiracy requires only proof of
objectives.
generally
terrorism
future
personnel, not
agreement
Project,
Law
v. Humanitarian
Holder
toward
step
provision.
substantial
such
material
(recognizing
at 2725
S.Ct.
See,
States,
e.g., Blockburger v.
directly furthering
terrorism
jeopardy (d) No Government Conduct Precluded a Dissenting Op., conspiracy conviction. See Jury Finding Step a Substantial post do not this at We share [181].25 concern, suggests as which himself does not Insofar the dissent that Sa- Sabir See, Club, 145 e.g., Norton v. Sam’s bir’s words or actions were somehow raise. (2d Cir.1998).26 114, 117 by the prompted agent,27 the undercover concern, raising dissenting arguing conspiracy our col- that the and substantive 25. In this "[c]onspiracy charges league charges against submits that un- actually “are him encom- completed conduct,” Tr., accompanied by a substantive Sentencing passed in the same rare, relatively troubling are and can be 28, 2007, 13-14, crime this is Nov. not a double the evidence leaves one to when available claim, Dixon, jeopardy see United objective speculate whether the criminal 688, 704, U.S. 125 L.Ed.2d Op., Dissenting would have been realized.” Corbin, (reversing Grady v. exception post [182]. We take to this broad U.S. S.Ct. L.Ed.2d sufficiency challenge generalization. A to a (1990)). conviction, standing conspiracy whether count, together alone or substantive "chanted 27. The dissent submits requires par- a review of the evidence in that mantra of a terrorist” because he was Here, Judge joins ticular case. Chief Dearie government agent inspired by by the "led unanimously affirming panel in Sabir’s Dissenting Op., post at co-defendant.” his conspiracy conviction. report What is that before [182]. it fails at, bay under- Although attorney swore he detailed his urged the dis- Sabir’s sentences, standing "deepest significance,” impose oath’s trict court to concurrent patently entrapment insinuation of is so warriors and not victims of innocent ter- waived unwarranted Sabir himself rorism. court, preclud- in the district defense sum, totality conclude that the Trial ing appeal. its consideration on the evidence was than more sufficient to 2387-89; Tr. at see also permit jury reasonable to find that on Cir.2007) Quinones, 511 F.3d 20, 2005, May Sabir took a substantial step waiver). if (discussing true Even the dis- provision intended culminate in the imply something sent intends to less than personnel work himself under the entrapment, question of whether Sa- Qaeda. direction of al Accordingly, we May bir’s recorded statements on uphold convictions for both conspiring solicited,
were firm or volunteered attempting material sup- equivocal, one by of fact to be decided port to a foreign organization. jury, advantage had the which distinct over of hearing this court both the record- C. District Court Reasonably Re- May 20 meeting trial jected Challenge Sabir’s Batson testimony. Sabir, African-American, who is course, evaluation, Of making its argues prosecution’s that the per use of jury presumably considered facts elided challenges emptory to excuse five African dissent, Sabir, which show that far from jury Americans his case violat *26 from being gullible Qaeda mark for ed the Fourteenth guaran Amendment’s recruitment, highly was a educated United equal protection tee of as construed the citizen, indeed, scientist. trained Supreme Court in v. Kentucky, Batson 476 presume jury We the also considered Sa- 79, 1712, 106 90 U.S. S.Ct. L.Ed.2d 69 that, bir’s statements meeting before (1986).28 After an inquiry, extensive the 20, Agent May 2005, on Soufan Sabir had rejected court argument, district this find (1) agreement both reached with Shah that ing that each challenges of the five the provide two would sup- men material supported by credible non-diseriminatory port 110, Qaeda, to al see GX 906T at and “represents reasons. Such a ruling a find (2) he only decided that could such fact,” ing of which not we will disturb in support working within of exper- his area the absence clear error. Hernandez v. tise physician, as a see id. at 65-66. York, 364, 352, 369, 500 New U.S. 111 S.Ct. context, jury the reasonably could 1859, (1991) 114 L.Ed.2d (plurality 395 Agent have concluded Soufan’s state- Lee, opinion); see United States v. 549 ments lead did not Sabir into words and (2d 84, Cir.2008); F.3d 94 United States v. actions about which he had reservations. (2d 1313, Cir.1996). Taylor, 92 F.3d Rather, Soufan’s statements served to en- identify We no such error this case. sure that when Sabir himself volunteered three-step guides A inquiry a district as an on-call for al sup- doctor court’s evaluation of a Batson challenge: numbers, plied contact he knowing did so fully intending First, provide personnel prima defendant must make a for purpose the of treating jihad wounded showing facie peremptory that a chal- GX (discussing 906T at 112-13 jurors historical ori- of the Four twelve who deliberated oath, gin explained which Sabir "formed a in Sabir’s case were African Americans. Of ” trust not be could achieved in "oth- four, those one was excused before verdict. way you complete er ... because cannot be 23(b). See Fed.R.Crim.P. it”).
without
jurors
prospective
of African
on the basis
exercised
lenge has been
Americans —
5,
26,
gov-
#
# 27—the reasons
second,
showing
has been
#
race;
if
“clearly
a race-
made,
pretextu-
must offer
were
prosecution
ernment advanced
striking
juror
59,
for
basis
Br. at
61.29
Appellant’s
neutral
al.”
third,
light
par-
question;
large-
argument is based
pretext
submissions,
must
trial court
ties’
prose-
exclusively
ly though
—on
—
has
the defendant
whether
determine
prof-
purported
apply
failure to
its
cution’s
discrimination.
purposeful
shown
excusing
for
reasons
fered race-neutral
476-77,
Louisiana,
552 U.S.
v.
Snyder
similarly
situated
African Americans
170 L.Ed.2d
jurors of other races or eth-
prospective
(internal
marks and brackets
quotation
can
inconsistency
demon-
nicities. Such
omitted).
appeal, we
of this
purposes
For
discriminatory
intent. See Mil-
strate
“minimal
satisfied
assume
Dretke,
231, 241, 125
v.
545 U.S.
ler-El
showing,
facie
Overton
prima
burden” of
(2005) (ob-
2317,
29. Because Sabir does not
Lee,
rejection of his Bat-
As
lenge the district court’s
See United States
observed,
argument
respect
to the two other
with
correctly
ju-
son
court
the district
prosecu-
Americans excused
African
put
professed willingness to
their reser-
rors’
jurors
# 49—we
prospective
#14 and
only
prosecution
that the
vations aside meant
tion —
point
See United States
deem the
abandoned.
cause, not
secure their removal for
could not
Cir.
Draper,
179 n.
credibly
race-neutral
that it could not retain
2009).
that the record
nevertheless note
We
supporting
exercise of a non-
concern
challenge.
support any
The
does not
such
challenge.
discriminatory peremptory
Fur-
expressly
prose-
found that the
district court
ther,
prosecution’s
respect
to the
stated
with
credibly concerned about
these
cution was
prospective juror
diffi-
# 49’s
concern about
expressed
prospective jurors’ initially
reserva-
comprehension,
acknowl-
culty
the court’s
techniques
investigative
certain
tions about
edgment
it had itself observed the diffi-
case,
gather
were used to
evidence in
finding
this too was a
culty supports its
#14)
i.e., wiretapping (prospective juror
excusing the
reason for
credible race-neutral
(prospec-
informants
the use of confidential
juror.
49).
finding
credibility
juror
tive
#
Such
1. Prospective Juror #
residency
requirement
appointment.
for
court, however,
The district
concluded
government
The
cited three race-neutral
from its
questioning
juror
own
of the
excusing prospective juror
reasons for
# 5:
he manifested “excessive defensiveness”
(1)
appointment
his failure to secure
about
relating
circumstances
to his
police
might
Boston
force
him
cause
failure
police
to secure the
appointment,
(2)
against
enforcement;
lean
law
he was
provided
which
government
with a
equivocal
somewhat
about
ability
his
to set
credible race-neutral basis for concern
aside the view that he was frequently a
about
ability
to be impartial toward law
discrimination,
victim of race
see Voir Dire
enforcement officials. Voir Dire Tr.
(“I
Tr. at 11
think I
give
can
it
college
123. This finding turned largely on the
try
and be as fair as
person
other
district court’s assessment
juror’s
(3)
be.”);
could
his employment work
demeanor and credibility, a
“pecu-
matter
ing with autistic
might
children
him
make
liarly within
province,” Snyder
[its]
v. Lou-
sympathetic
less
prosecution
witnesses.
isiana,
In challenging conclusion, entific guilt evidence of in every case.30 suggests that job the lost opportunity was While the district court agree did not effectively irrelevant prospective juror prosecution’s characterization of the # 5 conceded that satisfy he did not prospective juror’s appearance, it found 30. "CSI: Investigation,” Crime Scene along by solve applying crimes science and technol- NY,” with "CSI: Miami” and “CSI: ogy are a physical to the review of evidence. See popular trio of television series about ficti- "CSI: Crime Investigation,” Scene http:// tious investigators teams of forensic www.cbs.com/primetime/csi/. who concerns, Accordingly, identify no clear error including the other identified rejection of in the district court’s focus, credible to constitute juror’s lack of challenge respect prospec- Batson prosecution’s grounds for race-neutral juror tive # 26. challenge. peremptory of a exercise pretext claim of maintaining his # 27 Prospective Juror prosecution that the observes appeal, Sabir offered two race-neutral prosecution The American veni- excuse non-African did not juror excusing prospective reasons care, in health nota- who worked
repersons (1) thirty-year career in person’s # 27: juror # who worked bly prospective City Department the New York Social did it excuse hospital. Nor a veterans’ sympathet- him might cause to be Services with ties to Mus- non-African Americans as well as persons ic to difficult straits juror # lims, who prospective such as authority, skeptical government more argument ig- a Muslim. had dated (2) frequent viewing television pro- neither of these the fact that nores might the three “CSI” television shows range of jurors demonstrated the spective make him reluctant to convict the ab- juror by prospective presented concerns of scientific evidence. See Voir Dire sence presented a fo- Tr. at 131. Certainly, # neither 26.31 # juror prospective concern. As to
cus
(2d
Duncan, 435
In Messiah v.
F.3d 186
found that she
expressly
court
the district
Cir.2006), we observed that
is not
“[i]t
attitude” than oth-
“a more distracted
had
prosecutor
for a
to think that
implausible”
venire,
mani-
which she
er
members
who has dedicat
provider
“a social service
by
“looking over toward
persistently
fested
helping
life to
others
professional
ed his
Voir
during
questioning.”
her
left
for a defen
might
sympathy
have more
to the district
jurors.
Tr. at 129. We defer
Id.
prospective
Dire
dant” than other
conclusion,
experience
many
That
like
others
voir dire
at 200.
court’s considerable
may
observations,
informing peremptory challenges,
Sny-
see
making demeanor
stereotype,
not one
group
based on a
but
Louisiana,
477, 128
552 U.S. at
der v.
J.E.B.
equal protection.
that violates
that such distract-
and we note
S.Ct.
Cf.
T.B.,
127, 142
v. Alabama ex rel.
511 U.S.
itself,
is,
race-neu-
a sufficient
edness
14, 114
1419, 128
n.
S.Ct.
L.Ed.2d 89
per-
of a
ground
tral
exercise
challenges
(distinguishing
peremptory
challenge,
generally
see
Brown v.
emptory
occupa
based on
based on race from those
Cir.1992) (“An
116, 121
Kelly, 973 F.2d
tion).
and demeanor of
of the conduct
impression
during the voir dire
juror
prose-
for the
prospective
Similarly,
plausible
it was
juror
regularly
basis for the
who
legitimate
cutor to think that
forensic
watched television shows which
peremptory challenge.”).
exercise of
*29
Douglas,
generally United States v.
tiality.
challenges
prosecution's
Sabir
the
31. Because
(noting
juror
that "this Court has
prospective
Fields, (5th scientific, technical, If or special- 355 n. 39 other 483 F.3d Cir. knowledge ized will 2007) assist the trier claim (observing that that “CSI” fact to understand the evidence or jurors shows cause demand scientific issue, qual- determine a fact a witness evidence was even “plausible” though not skill, by ified as an expert knowledge, “proven empirically”). experience, training, education, may or having The district court found pros- testify thereto the form of an opinion profession ecution in its credible of these (1) otherwise, if testimony prospective concerns with respect juror data, (2) based upon sufficient facts or #27, identify we no clear error in its testimony product is the of reliable rejection argument Batson Sabir’s methods, (3) principles and wit- respect to the exercise this peremptory applied ness has the principles and challenge. reliably methods to the facts of the case. sum, reject equal Sabir’s protec- The assigns law district “gatek courts a challenge tion to his conviction as without eeping” ensuring role in expert testi merit. mony requirements satisfies the of Rule Carmichael, Co. Kumho Tire
D.
Evidentiary Challenges
Are
U.S.
119 S.Ct.
143 L.Ed.2d
Uniformly Without Merit
(1999);
see Daubert v.
Dow
Merrell
Pharms.,
Inc.,
579, 593-94,
509 U.S.
Sabir asserts that his conviction is in-
(1993)
(articu
S.Ct.
two
Qaeda, “Globalterroralert.com”
Helpful
Jury
and al
(3)
Project;
his author-
Investigative
that,
if
even Kohlmann
Sabir submits
papers and
various academic
ship of
qualified
expert,
as an
his testi
properly
(4)
Qaeda;
provision
al
his
book on
Qaeda’s history
al
and struc
mony about
al
on terrorism and
consulting services
jurors’
helpful
because
famil
ture was
agencies; and
Qaeda to various federal
leader,
iarity
Qaeda
with al
and its
Osama
collect, analyze, efforts to
ongoing
Laden,
presumed.
argu
could be
bin
audio,
written,
mate-
and visual
catalogue
little discussion. We have
requires
ment
generally and
relevant
to terrorism
rials
testimony to
approved
expert
the use of
the rec-
Qaeda
including
in particular,
al
criminal
provide juries
background
confessions from
guilty pleas and
ords of
notably organized crime
organizations,
Qaeda operatives.
admitted al
See, e.g.,
families.
United States v. Mat
testimony,
admitting Kohlmann’s
Before
(2d Cir.2007).
era,
115,
489 F.3d
121-22
court also considered —without
the district
explained
As we
in United States v. Amu
parties
record of
objection from
—the
(2d Cir.1994):
so,
a. Shah’s Recorded Conversations with d. Testimony Kohlmann’s Did Not and the Undercover Informant Beyond Reach the Government’s Were Admissible Under Fed.R.Evid.
Rule 16 801(d)(2)(E) Proffer Sabir faults the district court for allow- We review the district court’s decision to ing Kohlmann testify beyond scope admit Shah’s recorded conversations as co- only 34. While árgumenl references Shah’s record- also to reach Shah’s recorded con- ed with the conversations informant agent. versations with the undercover mounting challenge, we understand the
161 the statements at issue that Shah made Fed.R.Evid. under conspirator statements 801(d)(2)(E) then-existing conspiracy error. of a only for clear furtherance 545 F.3d Al-Moayad, finding v. two men.35 Such a between these United Cir.2008). error, (2d urging such by 173 the recorded amply supported was were recordings submits Sabir See Bour statements of both defendants. participate he did not because inadmissible States, 175-76, at jaily v. 483 U.S. and was not at issue in the conversations Tellier, 2775; 83 United States ar- thereof. The in the course mentioned Cir.1996) (observing that F.3d 580 First, it respects. flawed two gument is may themselves be hearsay statements con- recorded the facts. Shah’s misstates admissibility un determining considered re- and Soufan versations with Saeed 801(d)(2)(E), there provided Rule is der by his first Sabir both peatedly referenced corroboration of defen independent some 1; see, at GX “Rafiq,” e.g., GX 801T name conspiracy). participation dant’s as a by profession his 812T at very At the start of his first recorded 3; “doctor,” see, 902T e.g., GX 807T GX Saeed, September meeting with Second, it important, and more at 23-24. “Rafiq” “part- Shah identified as admissibility standard for misstates the ner,” implying agreement a term some 801(d)(2)(E). Rule under pursue the two men to a common between 801(d)(2)(E) out-of- states Rule objective. (explaining GX 801T at as are not excludable court declarations “you Rafiq tight” “me and are real they “by coconspira- made a hearsay if are always Rafiq”); would see me with see the course and in party during a tor of plain Trial Tr. at 600. Shah made that the To admit conspiracy.” furtherance partnership extended to Shah’s martial rule, under this declaration an out-of-court efforts, explaining arts Sabir owned prepon- find the district court must operat- building Harlem where Shah “(a) that there was of the evidence derance training ed his martial arts center. See id. (b) that its members included conspiracy, Thereafter, in recorded conversations whom party against and the the declarant joining al Agent Saeed and Soufan about (c) offered, and that the the statement emphasized his Qaeda, repeatedly Shah during made the course of statement was and indicated that partnership conspiracy.” in furtherance of the the two men would come to the terrorist Al-Moayad, as a ... me and a organization “package (internal omitted); quotation marks 3-4; 902T at doctor.” GX 807T at see GX States, Bourjaily v. United see also pair, “I me (stating come like with 171, 175-76, 107 S.Ct. U.S. doctor”). explained that he (1987). here, and a Shah Where, Shah L.Ed.2d need knew intentions and did not only conspira- alleged are the tors, speak further with him to make this required court to find to the district was ed., 2007) (“Statements McLaughlin 2d ed. are made in the course Where statements existing conspiracy actually defen- conspiracy of an in which the made before joins, be ad- dant later those statements outside the realm of Rule formed fall him, though against even he was not mitted 801(d)(2)(E).”); v. Ba- see also United States conspiracy at the time the member of the dalamenti, (2d Cir.1986) made, theory that he were on the statements (holding co-conspirators that statements already hap- what "assumes the risk for has against defendant under Rule were admissible pened” Jack B. Weinstein & in the scheme. 5 801(d)(2)(E), joined "even if made before he Margaret Berger, Weinstein’s Federal Evi- A. conspiracy”). 801.34[4][a], (Joseph at 801-84 M. dence
commitment,
suggestive
a statement
of an
Sabir submits further
re
Shah’s
*33
corded statements were
un
existing agreement between the two men.
inadmissible
801(d)(2)(E)
they
der Rule
because
were
902T at 23.
See GX
in
conspiracy,
not made
furtherance of the
Moreover,
May
when Sabir
but instead were “idle chatter.” United
Soufan,
Agent
provided
met with
he
inde-
Paone,
(2d
386,
F.2d
pendent
explicit
confirmation for what
Cir.1986).
persuaded.
We are not
Shah
saying
Shah had been
to the informant and
plainly seeking
persuade
to
someone
agent:
undercover
that Sabir and Shah
thought
whom he
could admit him al
to
long
agreed
had
discussed and
support
to
trustworthy
that he and Sabir were
pursuit
jihad.
terrorists’
would,
fact,
provide
material assis
And, I’m, I
you
UC:
will offer
that [the
tance
that organization.
to
That Shah’s
Qaeda],
allegiance
oath of
to al
broth-
statements were
vague
sometimes
er,
up
you.
but it is
to
that,
rambling does not alter the fact
entirety, they
their
were made in further
So, you
SABIR:
know this brother
agreement
ance of an
with
provide
Sabir to
I,
think,
have,
here and
I
we
I
[Shah]
support
material
any
terrorism.
go
my
have to
with
brother because
event, Sabir does not show
any possi
have,
we
we have talked about this for
digressions
ble
from
conspiratorial
time,
long
and because we have
purpose
Shah’s
preju
statements were
time,
it,
long
talked about it a
I feel
Mercado,
dicial. See United States v.
uh, uh,
just
my spirit
not
(2d Cir.2009).
138, 141
it, ...
if
but that
didn’t do it I
I
will
abandoning my
brother. And the
b. The Admission
Shah’s Statements
very thing
agreed upon
it in the
Did Not
Right
Violate Sabir’s
place....
partners.
are
[WJe
first
Confrontation
added).36
(emphasis
GX 906T at 110
Sabir’s reliance on
v. Wash-
Crawford
plainly
This record
supports the district
ington,
541 U.S.
that,
finding
court’s
as of the time of the
L.Ed.2d
to mount a Confrontation
first
recorded conversation at
issue in
challenge
Clause
to the receipt of Shah’s
already
Shah and Sabir had
reached
statements is foreclosed
understanding
tacit
respec-
Saget,
Cir.2004),
use their
ment not ... subject at the trial and is Inconsistent Statement testifies 3. Prior concerning the state- cross-examination Tony Rich Prosecution witness ment, ... and the statement inconsis- in participating testified that while ardson testimony, tent with the declarant’s Maryland, he martial arts classes Shah’s subject penal- oath given was under him “Dr. introduced to met a doctor ty perjury....” grand Richardson’s Rafiq with Rafiq or Sabir or Sabir” Sabir jury testimony indicating that he had a briefly. Trial Tr. at 230- spoke whom he name is friend Texas whose “middle if cross-examination he 31.37 Asked on not, Rafiq Rafiq,” Sabir was [or] Sabir name, as to the Richardson positive was trial strictly speaking, inconsistent “No, I positive. not don’t even answered briefly testimony that the doctor whom he Dr. totally. name It was remember his met at Shah’s martial arts class was Sabir, something to Rafiq Rafiq or Sabir Rafiq Rafiq named “Dr. Sabir or Sabir Id. at 232. Defense counsel that effect.” correctly court ob- Sabir.” As district Richardson sought impeach then served, negative given if Richardson had testimony grand jury from reading aloud question at trial to a about know- answer name Richardson ascribed the which anyone named beside this else Rafiq or Sabir to a friend Rafiq Sabir doctor, testimony grand jury then the Texas. inconsistency. might presented have Q. you Rafiq Sabir? know] [Do question But no was ever asked. such Rafiq. Do A. not—Sabir event, hardly can demon- any by the dis- you prejudiced that he was Q. Rafiq Sabir. Do know Sabir strate jury ruling. grand trict court testimo- Rafiq? duced. made no in-court identification 37. Richardson person whom he was intro- of Sabir as the truth, i.e., Cardascia,
ny
e.g.,
was not relevant
its
United States v.
(2d Cir.1991);
whether
in fact had a friend in 474
Richardson
United States v. DiMa-
Texas,
ria,
Cir.1984)
part
Rafiq
of whose name was
Sa-
jury by acknowledgment Richardson’s length Sabir testified at about his views grand jury statement. It did not re- States, regarding Qaeda, the United quire grand jury actual admission of the See, e.g., its methods. Trial Tr. at 1491 record. (testimony of Sabir that wrong “[s]uicide is *35 Islam”). Further, in all circumstances in Evidence State-of-Mind permitted he was to introduce into evi-
Sabir submits the district dence document he in February wrote refusing court erred in to admit state 2005, which described his vision for an ments he made to federal authorities on Organization” “Islamic Justice dedicated to 5, 2004, entering October when the United “ensuring] justice by for Muslims” lawful States from Saudi Arabia. According to a means. See id. at gov- 1558. The contemporaneous FBI report, Appel see contrary ernment’s evidence of in- 1-3, lee’s Br. Add. these statements re crimes, tent to commit charged howev- personal, educational, counted Sabir’s and er, clearly overwhelming. The tape employment background; circum recorded meeting May supra stances prompting his move from the Unit [132-33, 140, 143-46], reveals Sabir Arabia; ed States to personal Saudi his swearing loyalty to support the terrorist professional Arabia; activities in Saudi organization by providing medical treat- his causes; financial for various ment for its wounded in combatants Saudi appreciation his for life in the United record, Arabia. easily On this conclude Arabia; compared to Saudi and his the exclusion of Sabir’s October intent to return to live in the United States 2004 statements was harmless. See Unit- unspecified some future time and to (2d ed Song, 436 F.3d “make things better” in country. this In Cir.2006) (deeming harmless erroneous ex- statement, one professed not to con clusion of state of mind evidence where done bombing. suicide Sabir submits that permitted defendant “was testify in suf- these statements were admissible because ficient detail theory as to his of the case” they evidenced a state of mind not dis government presented overwhelming posed material support to al guilt); Lawal, evidence of United States v. Qaeda. Cir.1984) (same). We note that both before the district 5. Rule Objections lf.03
court appeal and on presented this argument conclusory in a fashion. The Sabir submits that the district court one-paragraph argument in appellate in admitting erred evidence was more brief (a) does not cite—much prejudicial less discuss— than probative, specifically: rule, 803(3), the relevant see Fed.R.Evid. certain materials per- seized from Shah or our precedents see, construing Shareef, its scope, taining to Mohammad a radical (b) to take over the mos- attempted Shareef cleric; evidence re- testimonial Muslim Shah, Although force of arms. who que in certain incident which a 2000 garding mosque, at the associ- taught martial arts including Shah or Sabir— individuals —not group, participate he did not Poughkeep- of a ated with to take control attempted (c) force; testimony attempt. in takeover Nor did the armed mosque by sie Sabir, occasionally activities Bosnia. who visited Shah mujahideen about this time. Poughkeepsie at about persuaded. are not We court concluded that The district Materials a. The Shareef probative was nevertheless evidence objection raised no Because Sabir evolution of Shah’s state of mind em- trial, we review the materials at Shareef identify cannot bracing jihad. We abuse only plain of that material admission in this conclusion. Shah’s of discretion error. See United States Yousef supporter jihad as a militant evolution point requires little dis- F.3d at 121. The trial was relevant of Sabir because conclusory chal- cussion because Sabir’s close, longstanding men were two error lenge fails to demonstrate “partners,” purportedly so familiar with indicating that Shah of evidence admission minds that one could speak each other’s As views on Islam. Shah held radical supporting jihad. for the other in GX in his various recorded would manifest Indeed, May at the 906T at 110. statements, views fueled the forma- such *36 meeting partners at swore alle- which conspiratorial agree- charged tion of the Qaeda, giance acknowledged to al Sabir support jihad. ment to material discussing ji- that he and Shah had been Further, attempt not even to Sabir does long past had for a time and referenced of such evi- show how the admission agreement their experiences that informed conspirators in a case which dence—in jihad by working to within their support al swearing allegiance to are recorded at respective expertise. areas of See id. rights or Qaeda his substantial —affected 65,110. “ fairness, integrity, ‘the undermined ” judicial proceedings.’ public reputation Mujahideen c. Activities in Bosnia Payne, 591 F.3d (2d Cir.2010) (quoting States v. United testimony from Sabir submits that Olano, 507 U.S. Muhammad, longtime friend of Yahya (1993)). L.Ed.2d 508 Shah, support provided about the he prejudi in was more mujahideen Bosnia Poughkeepsie Mosque Incident b. The fact, probative. cial than In the evidence rulings for remaining review the two We why, in understanding was relevant discretion, see States v. abuse of United Muhammad Sabir would ask about Bah, 116; pro traveling for advice about abroad Mercado, none F.3d at and detect mujahideen. vide medical assistance here. evidence, in Trial Tr. at 286-87. Such turn, to demonstrate that when the district tended submits Sabir an subsequently offered to serve as permit 403 error in court committed Rule in combatants on-call doctor for Kearney, witness Anwar ting prosecution Arabia, acting with the he was mosque Poughkeepsie, to Saudi imam of a the counts necessary support persons knowledge testify group of conviction. teachings followed the of Mohammad who Issues Summation proved
E. each of the crimes element[] charged beyond reasonable doubt. Sabir contends the district court Trial Tr. at 2417-18. (1) him arguing erred from precluding ensued, A sidebar conference which the government summation that had the district court cautioned defense coun- targeted prosecution him for based on his arguing prose- sel to refrain from selective religion, allowing government while jury, advising cution to the such argument; contrary per- make a defense should raised with the court mitting to vouch government for its post-trial motion.38 Defense ini- counsel argu- witnesses. the first tially instruction, complied with but ment, us to the points following ex- subtly then more returned to the selective cerpt from the summations. prosecution attacking theme the FBI for way “deciding] Dr. Sabir is which [against [DEFENSE COUNSEL]: case going” Sabir] an on the based an internal important piece chess board. perception of what was “correct” without important piece He’s an to the FBI in- regard “reality” to whether demonstrated vestigation, important and he’s piece otherwise. Id. at 2431. Everybody Shah. wants Dr. Sabir. government responded The with the fol- Objection. [THE GOVERNMENT]: lowing argument: rebuttal THE COURT: Sustained. Then, argument there was the that the government looking out for sinners. [Tjhere’s [DEFENSE COUNSEL]:.... picked government and chose Dr. a very interesting discourse that oc- Rafiq Sabir sort of trophy as some blam- myself [Agent] curred between government for its efforts [in] Soufan testifying while he was about terrorism; fighting and this from a de- whether or not was an there increase in *37 said, fendant I support who all anti- investigation the FBI of by the Muslim efforts, is, terrorism it except for if Well, community post common 9/11. undercovers, involves the use of except sense, you when talk about common if it involves people infiltrating muja- sense, you was, all know that there and hideen. try to sit you here and tell that there just wasn’t what agenda belies is. Well, government, Judge as the told Objection. [THE GOVERNMENT]: you, is not on trial. It’s game not a THE COURT: Sustained. Ladies and shifting government blame to the gentlemen, the govern- decision blaming agents they do, for what their jobs, ment to investigate individual or putting their lives on the line jury grand finding decision of a terrorism wherever it is. indict an your individual is none concern. The testimony You heard the of both the only jury case; concern has is this whether or agents in Agent former Ali Soufan, the government has or Agent has not and Special Brian Mur- cution, prosecution 38. No light selective motion particularly was ever of the fact that filed in this In an extended colloquy case. investigating agents had knowledge no of Sa- summation, prior to the defense the district by bir until he introduced was into the case already court had cautioned counsel about Shah, given co-defendant that the defense arguments the impropriety insinuating entrapment. had withdrawn claim of targeted improperly prose- Sabir had been
167 emotion”). country bly charged with dis- with As a conse- Both served this phy. they fol- you quence, told a defendant who seeks to overturn tinction. Both investigation where it went. alleged prosecuto- lowed the conviction based up where it ended it went and Where rial misconduct in summation bears a 20, the defendant May 2005. With “heavy v. burden.” United States Felici- bayat to bin Laden. taking (2d Cir.2000) (inter- ano, 102, 223 F.3d 123 omitted). quotation nal marks He must Id. 2487-88. particular show more than that a summa- rebuttal, unsuccessfully Following tion improper. general- comment was mistrial, arguing gov- that the moved for Newton, ly United States v. 369 F.3d improperly had raised the issue ernment (2d Cir.2004) (observing “prosecu- prosecution and vouched for its of selective standing rarely tors’ comments alone” will Reviewing own witnesses. the district (internal overturning warrant conviction discretion, court’s decision for abuse see omitted)); quotation marks United States Smith, 426 F.3d (2d Rodriguez, 968 F.2d Cir. (2d Cir.2005), identify we none. ” 1992) that “it (noting is a ‘rare case’ First, identify no we error improper which summation comments challenged rulings the district court’s prosecution prejudicial will be so as to respect to the defense summation. As we (quoting Floyd warrant new trial v. Mea- explained, prosecution a selective de have chum, (2d Cir.1990))). 907 F.2d “a alleges fense defect the institution of comment, He must show that when prosecution,” and as such “is an issue against “viewed argument entire jury.” than for the court rather Unit Bermudez, jury,” United States v. (2d 1072, 1082 Regan, ed States v. 103 F.3d (2d Cir.2008) (internal F.3d quota- Cir.1997) (internal quotation marks omit omitted), tion marks “in the context of 12(b)(3)(A). ted); see also Fed.R.Crim.P. trial,” signifi- the entire was so severe and Second, identify gov no error in the “substantially cant as to prejudiced” have long rebuttal. The has rec ernment’s law him, trial, him depriving of a fair United ognized particularly that summations —and Newton, 680; States v. 369 F.3d at see rebuttal summations —are not “detached Locascio, United States v. Wexler, exposition^],” (2d Cir.1993). That is not this case. Cir.1935), every *38 summation, In his own defense counsel ... “carefully word constructed before the repeatedly ignored warnings court and in- event,” Donnelly DeChristoforo, v. 416 jury sinuated that Sabir was the 646-47, 1868, 637, U.S. 94 S.Ct. 40 L.Ed.2d prosecution. victim of (1974). selective While it Precisely argu 431 because such role, prosecution’s, was the court’s not the frequently require “improvisation,” ments jury question to instruct the that this lightly every courts will “not infer” that them, government hardly not before carry remark is intended to “its most dan deprived by briefly of a fair trial sure, gerous meaning.” Id. To be alluding improper arguments to these ... prosecution may “appeal pas reminding them of the verdict, judge’s instruction. urging guilty sion” in United (2d Tocco, Wilner, 68, generally United States v. 135 States v. 523 F.2d 74 Cir. (2d Cir.l998)(“[W]here 116, 1975), may it F.3d 130 passionate arguing but conviction, arguments that defense summation makes supports the evidence see Wexler, allegations against government, United States v. 79 F.2d 530 (recognizing prosecutor may respond that are summations “inevita- to them rebut-
168
Rivera,
#8,
tal.”);
using
engine
971 F.2d
the electronic search
States v.
United
Cir.1992)
(2d
876,
“Google,”
had discovered that co-defendant
(noting
defense
883
“
pleaded guilty
unspeci-
Tarik
had
‘open the door’ to other-
Shah
argument
rebuttal”);
charges
fied
and then communicated
prosecution
wise inadmissible
Marrale,
658,
jurors.
fact to
submits that
v.
695 F.2d
other
United States
Cir.1982)
(2d
failing
grant
court erred in
(noting
“prosecutor
the district
667
ordinarily
respond
pre-verdict
entitled to
to the
motion for mistrial or his
evidence,
issues,
trial,
pro- post-verdict motion for a new
see
hypotheses
defense”).
33,
juror
by the
Fed.R.Crim.P.
based
mis-
pounded
persuaded.
conduct. We are not
Similarly,
identify
we
no error in
We review
abuse of discretion the
prosecution’s response to the defense
handling
alleged juror
district court’s
credibility
compe
agents’
attack on its
misconduct,
Vitale,
see United States v.
Perez,
tency.
v.
144
See United States
(2d
190,
Cir.2006);
459 F.3d
its denial
(2d Cir.1998)
204,
(recognizing
mistrial,
Smith,
aof
see United States v.
leeway” in comment
prosecutors’ “greater
(2d
567,
Cir.2005);
426 F.3d
and its
ing
credibility
on own witnesses’
after de
trial,
denial of a Rule
33 motion for new
attack).
prosecutors may not
fense
While
McCourty,
see United States v.
562 F.3d
they may
strike “foul” blows
strike “hard”
(2d Cir.2009).
458,
so,
doing
we
ones,
States,
78,
Berger v. United
295 U.S.
flexibility,”
accord the district court “broad
629,
(1935),
55 S.Ct.
Abrams, 708. The district Trial Tr. at juror 2698-2700. Because no court acted well within its discretion indicated that he or she would have a asking Juror # generally instead 8 more problem instructions, following these see whether she had uncovered informa- Thai, United States v. 29 F.3d at beyond guilty tion the fact of Shah’s plea district court reasonably concluded from and, upon receiving negative response, totality of the circumstances that the making no inquiry particular further to misconduct at issue did not warrant either Sabir. trial, a mistrial or new see United States v.
We further conclude that
Greer,
the district
173;
285 F.3d at
United States v.
court did not abuse its discretion in declin- Abrams,
vidually.
whole,
Addressing
jury
as a
summarize,
the district court
To
repeated
instead
we conclude
certain
that:
potentially
instructions
implicated by Ju-
1.
Title 18 U.S.C.
2339B is not over-
ror
specifically
#8’s actions. These
in- broad
unconstitutionally
otherwise
the following:
cluded
vague
applied
to Sabir’s case.
your
It is
function in this case to decide
2. The trial evidence was sufficient to
issues
fact. Your decision on the
support Sabir’s conviction for conspiring
issues of fact is to be
solely
based
on the
and attempting
sup-
material
evidence. Nothing
say
I
is evidence.
port to a known terrorist organization.
Nothing any
lawyers
say is evi-
3.
jury
selection in Sabir’s case did
Questions by
dence.
themselves are not
not
Equal
violate the
Protection Clause as
Objections
evidence.
are not evidence.
construed in Batson v. Kentucky, 476 U.S.
Testimony that has been excluded or
79, 106
S.Ct.
grand jury transcript as pri- evidence of a *41 motive, plan, design, feeling, to Fed. mental pursuant statement inconsistent or 801(d)(1)(A); health), bodily but not includ- pain, R.Evid. or memory a statement of belief to the dis- not decide whether d. we need prove the fact remembered or believed holding in evidence trict court erred execution, unless it relates to the revoca- mind on Octo- state of professed of Sabir’s identification, tion, or terms of declar- Fed. inadmissible under ber ant’s will. 803(3) would, in any error R.Evid. because case; event, harmless in this any hearsay All in exceptions are rooted one or thought more conditions to ensure suffi- no merit to Sabir’s claims e. there is reliability permit cient a factfinder to have been that various evidence should forego preferred means for test- law’s more under Fed.R.Evid. 403 as excluded ing evidence: cross-examination. probative. than prejudicial 803(3), Rule case of condition is “con- rulings The district court’s summation ie., temporaneity,” the statement must ev- deprive of a fair trial. did not existing idence the declarant’s “then state court acted well within its 6. The district mind,” presumed a circumstance to re- denying Sabir’s motions for a discretion duce declarant’s chance for reflection trial because the record mistrial and new and, therefore, misrepresentation. supports finding its that Sabir was plainly Cardascia, United States v. juror prejudiced by exposure to extrin- (2d Cir.1991); 487-88 see also McCor- Internet information about co-defen- sic (Kenneth mick on Evidence at 267 dant Shah. 2006) (“[T]he ed., special Broun 6th ed. S. judgment The of convictionis affirmed. reliability assurance of for statements of present upon state of mind their rests RAGGI, Judge, REENA Circuit spontaneity resulting probable sinceri- concurring part: ty. guarantee reliability is assured II.D.4 respect to Part With principally by requirement certainly agree I with the opinion, court’s relate to a condition of statements must if conclusion that there was error existing mind or emotion at the time of the (footnote omitted)). the district court’s failure to admit Sabir’s statement.” to federal au- October 2004 statements course, Contemporaneity, of is not a entering the thorities when foolproof safeguard reliability. As com- Arabia, such error was harm- from Saudi observed, things mentators have “few are beyond a doubt. See ante less reasonable misrepresent than one’s easier further, however, go I would [164-65]. thoughts.” Christopher B. Mueller & that there was no error be- and conclude Kirkpatrick, Laird Federal Evidence C. 5, 2004 cause Sabir’s October statements (3d ed.2007) 8:70, (observing fact, not, satisfy requirements did offers less assur- exception “state-of-mind 803(3). explain R. Evid. To Federal against deception ance than some others conclusion, necessary it those discuss require immediacy”). This has that also requirements some detail. to condition prompted a number courts 803(3) hearsay recognizes excep- Rule 803(3) admissibility presence on the Rule tion for suspicious suggesting “no circumstances to fabricate or of the declarant’s then ex- a motive for the declarant statement
[a]
mind, emotion, sensation,
thoughts.”
her
5 Jack
isting
misrepresent
state of
his or
(such
intent,
Margaret
Berger,
A.
physical condition
B.
&
Weinstein
*42
Weinstein’s
Federal
Evidence
United States v.
presented
DiMaria
no
803.05[2][a],
§
at
(Joseph
contemporaneity
803-31 & n.4
M.
or relevance concerns.
2007)
ed.,
McLaughlin
spontaneous
2d ed.
defendant’s
(collecting
utterance to
cases);
approaching
agents
FBI
Kirkpatrick,
only
see 4 Mueller &
came
su-
—“I
get
here to
8:71,
cigarettes
§
some
real
pra,
cheap”—
(collecting
613-14 & n.30
803(3)’s
easily satisfied
cases);
Rule
contempo-
see also 6 John H. Wigmore, Evi-
raneity requirement in that it purported to
dence in Trials at Common Law
reveal the
(James
existing
declarant’s then
state of
ed.,
at 160
H. Chadbourn
rev. ed.
respect
very
mind with
conduct in
1976) (providing for statement of then ex-
which
engaged.
he was
undercover DEARIE, Judge, District Chief support to al provide medical wounded dissenting part. in in at Qaeda somewhere Saudi Arabia some stated, point Fairly in the future. the my strong disagreement
I to voice write that majority further concludes once Sabir that evi- majority’s the conclusion the with services, took a offered these he substan- to legally sufficient sustain dence is becoming organiza- step tial toward I concur. attempt conviction. otherwise remaining “on call” doctor. The evi- tion’s attempt. agree an I This is not is support attempt dence to conviction of the familiar “substantial application Qaeda, an oath to al swearing Sabir’s case-by- formula must be made on a step” acknowledges is not government which the and that in some cases the case basis act, providing a criminal and his contact readily not proof may of the adequacy numbers, Cir- which the decisions this determined, I not such a case. but this is to- step cuit confirm is not a substantial between various agree that the distinction the commission of a crime. ward may prove support forms of material cases, majority correct that a “substan- but this is The meaningful again some label, analysis necessarily begins with a tial-step not such a case. Whatever time, understanding being of the crime proper remote in crime was so substantive 2339B(h) prose- organization’s direction or control.” As disallows 1. Title 18 U.S.C. challenge, 'person- response Sabir's the term reaffirm in to cution "in connection with vague "limiting [any] knowingly provid- definition ... answers person [a] nel' unless has concerns,” ed, rendering provision con provide, conspired attempted to ness Project, organization Law provide foreign stitutional. Holder Humanitarian terrorist U.S. -, (who may be or in- 1 or more individuals - (2010). himself) L.Ed.2d 355 under clude to work conduct have attempted.” Majority Op., ante Sabir’s would sufficed to [147]. charged Count Two indictment Sa- provide himself personnel had circum- attempting “material provide bir with believed, ques- stances been as he a novel Qaeda support” “per- to al in the form of litigants tion that the expressly never con- sonnel, training, expert advice sidered, much less briefed.2 I address assistance, as those are terms defined” these matters turn. 2339A-B, §§ “to wit ... 18 U.S.C. at- provide support tempting] medical II. (4th Superseding In- jihadists.” wounded 3-4.) dictment, # 05 cr Dkt. The issue before us is whether Sabir’s however, majority, does affirm on meeting agent undercover in the ground actions Sabir’s were an Bronx, “swearing an of allegiance oath attempt actual medical Qaeda” and “providing ... contact num- jihadists in to wounded Saudi Arabia. Nor bers for al members reach him in it, light could of this Circuit’s estab- Saudi step Arabia” constitute a substantial precedent, lished discussed below. Rath- (ie., providing personnel toward his him- er, elsewhere, majority focuses con- self) Qaeda’s to work under al direction cluding May or not “[w]hether Majority and control. Op., ante at [150]. 2005 actions were a substantial step Although step” analysis “substantial is of- provision expert medical services to *46 terrorists,” “fraught ten with difficulty,” Sabir’s actions on United this date Ivic, (2d “were a step provision 51, substantial in the v. Cir.1983), 700 F.2d himself personnel.” Majority Sabir case, question straightforward the is Op., ante at [151] (emphasis supplied). readily answered in the negative. may The rule is clear “that enough we case, I court, find in any no that even any grounds affirm on which there ais remotely supports majority’s the conclu- permit record sufficient to conclusions of sion that a attempts defendant a crime Chesley law.” Corp., Union Carbide simply by agreeing to commit the crime (2d Cir.1991) (internal 927 F.2d quo- providing phone a number. Nor does omitted). tation marks There is no dis- government, the single-paragraph its pute the that evidence is sufficient to es- ipse conviction, dixit defense of the offer intent, only tablish element of leaving the authority any position. to support its The import conduct be deter- majority opinion prece- cites established mined. The majority concludes that a recognized dents that recite the law juror find, reasonable could based on the cases, evidence, attempt, but none of regard- that these Sabir took substantial outcome, step justifies toward less of providing person- himself as the majority’s further, nel. Going majority suggests position. Quite contrary. trial, i.e., During government and after ad- his medical skills—to al assistance — Qaeda.”). attempt vanced view that the count defending in this In ap- the conviction on regards support. peal, case actual government speaks medical sup- of “material Summation, Tr., port” generally. Gov’t Trial 05 cr Gov’t at 58. At 5/15/07 Br. oral (“How however, Rafiq try argument, government at 2373-74 did con- case, provide support? attempted provide material In this his firmed that Sabir "medi- services,” expert advice and assistance in the perform form of his cal then offered addi- skills.’’); Mem., Sentencing medical Gov’t present tional research to its "best case” that ("Sabir cr # at might Dkt. took a guilty sub- have been found of at- step providing expert stantial toward tempting personnel. advice he drove to an drugs because purchasing that mere routinely hold
First,
cases
See,
night
late at
with a
e.g.,
home
attempt.
acquaintance’s
not an
is
preparation
roughly
that was
amount of cash
Manley,
large
Cir.1980) (“A
step must be
of the cocaine
substantial
to the value
equivalent
preparation,
affirming
than mere
In
more
the house.
something
found
necessary
last act
conviction,
than the
that “it is
aptly
be less
observed
yet
of the sub-
commission
the actual
any
prelimi-
before
additional
hard to conceive of
crime.”).
notes, a
majority
theAs
stantive
could
nary steps
defendant]
which [the
“of
‘a course
part
must be
step
substantial
acquisition
taken short of the actual
have
in [the]
to culminate
planned
conduct
And in
narcotics.”
Id. at 989.
of the
” Ivic, 700 F.2d
crime.’
commission
Crowley,
Model Penal Code
(quoting
(2d Cir.2003), we found sufficient evi-
5.01(l)(c)).
the conduct
is
It
act
attempt
to commit a sexual
dence of
Here, however,
lit-
there was
dispositive.
his
pinned
after the defendant
by force
was,
just talk that
There was
tle to none.
bed,
in her
put
his hand
victim
by the under-
part, prompted
for the most
her
sought
penetrate
shorts
any
There is no evidence
agent.
cover
By comparison,
meager
fingers.
indicate
might
activity whatsoever
action
Sabir to further
evidence
upon
indeed embarked
had
that Sabir
objective falls far short of a
the criminal
criminality
path
proximate
determined
step.
substantial
support.
material
in providing
Ivic, 700
majority also relies on
Second,
cases in which this Circuit
in the
explores
the outer
F.2d at
case
“
attempt,
‘the
finding
has sustained
constitute a
boundaries of what actions
progressed suffi-
ha[d]
accused’s conduct
case, having al-
step.
substantial
unfair
the risk of an
ciently to minimize
ready acquired explosives and devised
”
F.2d at 988
Manley, 632
conviction.’
*47
attack, one defendant authorized
plan of
(“
necessarily
pre-
is
attempt
‘[A]n
agency
a travel
and the
bombing
the
....’”)
(quoting United
dictive
Judge
the
site.
other
reconnoitered
(2d
Busic,
n.
Cir.
549 F.2d
of at-
Friendly found that
the evidence
1977)).
in
example,
For
United States
“sufficient,
barely
although
so.”
tempt was
Stallworth,
1038, 1041
Cir.
casing
If
the lo-
(emphasis supplied).
Id.
1976),
adopted
we
the
the case which
is “bare-
stockpiling explosives
and
cation
of the Model
step formulation
substantial
limited
how can Sabir’s
ly”
attempt,
an
Code,
evidence of a sub-
Penal
we found
possibly be?
conduct
robbery because
step toward
stantial
invokes,
majority
case the
principal
The
bank,
target
dis-
cased the
defendants
Delvecchio,
attack,
them-
plan
their
armed
cussed
(2d Cir.1987),
the conclu-
compels
861-62
selves,
surgical gloves,
and
stole ski masks
The
attempt
no
occurred here.
sion that
to
moved toward the bank
actually
and
correctly cites this decision as
majority
held that “[a]ll
commit the crime. We
agree-
a
that evidence of verbal
“holding]
and success was
appellants
stood between
more,
alone,
as
is insufficient
ment
without
offi-
agents
police
F.B.I.
and
group
a
support
attempt
to
a matter of law
“probably
timely intervention
cers” whose
conviction,”
“by
at
but finds that
id.
only robbery
possible
but
prevented
to
call in Saudi Arabia
Likewise,
promising to be on
at
Id.
bloodshed.”
and
Qaeda members[ ]
treat wounded
we held that the
F.2d at
Manley, 632
num-
contact
private and work
providing
step
a substantial
toward
defendant took
bers,”
Op.,
[145],
Majority
respective
ante at
crime than were Sabir’s. The
to
engaged
step
every
a substantial
sufficient
Delvecchio defendants worked out
Sabir,
imminent
attempting
aspect
for
of an
pro-
drug
sustain
conviction
deal.
by contrast,
personnel.
viewing
vide himself as
Closer atten-
gov-
facts
favor, agreed
tion to Delvecchio’s facts illuminates the
ernment’s
to be “on
call” as
majority’s reasoning.
halfway
flaw in the
doctor
around the world under
unspecified
conditions
some indefinite
Delvecchio,
found
the evidence
time in the future. Sabir never had the
an attempt
purchase drugs
insufficient
chance to demonstrate whether his actions
even though
partner
Delvecchio and his
would have been consistent with his con-
suppliers,
sought
actually
had
out
an un-
Indeed,
spiratorial pledge.
informant,
agent
dercover
and an
then
undercover
not even
did
“work out the
agreed
buy
kilograms
five
of heroin
terms of the deal.” Id. at 862.
pm
from them at 10:00
the following eve-
$195,000
ning
kilogram
per
specif-
on a
Before
placed
Sabir could have
himself
ic
control,
street corner in Manhattan. At
Qaeda’s
one
under al
direction or
moreover,
two dinner
meetings,
Delvecchio defen-
he
to return
Riyadh.
needed
dants,
Sabir, gave
back,”
like
their contact num- He
that” he
“get
could
“[a]ssum[ed]
agent
bers to the
required locating
informant.
Id. at which
or replacing his
hesitation, however,
861. Without
passport
enlisting
we con-
the aid of the consu-
cluded that
the defendants had not at-
late. GX
14. In
906T at
addition to these
narcotics,
hurdles,
tempted
purchase
because
administrative
Sabir had to over-
“plan
their
heroin
come
possess
only
mobility
had
ad-
restrictions on his
and find
place
vanced to the
stage meeting with their
which to treat
mujahi-
wounded
purported suppliers to work out the terms
deen. Sabir told the undercover that he
(“[EJvidence
of the deal.” Id. at 862
being
forced to live
hospital
alone,
agreement
more,
66-70,
verbal
grounds,
without
agreed
id. at
that he could
insufficient
a matter of
jihadists
law to
not treat wounded
hospital,
conviction.”).
id.,
an attempt
government
ability
doubted his
to leave the con-
failed to
show that
defendants “per-
hospital
fínes of his
“without people watch-
formed
act
carry
movement,”
overt
out
every
70-71,
[his]
id. at
transaction;
agreed upon”
the defendants
he
volunteered that
had no means of
*48
not,
example,
had
transportation,
“set out for the
at 16.3
id.
The Delvecchio
meeting
“attempted
defendants,
contrast,
site” or
to acquire the
completed
stark
all
almost one
necessary
million dollars
such preliminary arrangements,
to
but even
complete
purchase.”
the
upheld
readily
Id. We
then the panel
concluded that no
the
conspiracy
defendants’
attempt
convictions
had occurred.
It seriously cannot be that disputed ways. the Delvecchio a number of Initially, actions, Delvecchio majority defendants’ like those *49 specifics” majority’s most but not "all of the and "con-
4. The conclusion that these actions negotiate government with the step, distinguish- tinue[ ] comprise a thus substantial Rosa, agent[]until prevented him from his arrest begs from Delvecchio and this case Jonsson, doing so.” United States analysis, opinions the since focus on the those (8th Cir.1994) (finding 762 such actions (or respective actions lack there- defendants' Delvecchio). distinguish of) sufficient to agreements initial the un- their after not, instance, agents. Sabir did for dercover meetings, agent initially requested multiple subsequent describe Sa- call 5. The undercover detail, anything phone plan bir’s number in case "there in the utmost settle his criminal provision support providing support actual of material of “material in the form the entirely a matter of and sur- speculation personnel of as soon as he to work pledges If, majority’s phrase, to borrow the mise. under the direction of organization.”6 the step attempt an “a essential” to sustain [182], Op., ante at Majority suggest- In so provision conviction were of a contact num- majority ing, largely the enters untested transactions, for resultant then Delvec- ber waters. statutory wrongly chio must have been decided. sufficiency The few courts to rule on Drawing all in favor conceivable inferences relating “person- challenges the term government, simply way no of the there is even nel” —or to construe the term —have square these facts with the cases cited a of required engagement, activity level or attempt and conclude that an has been compliance far surpassing Sabir’s some- established. someplace
day,
commitment here.7 Com-
III.
Abu-Jihaad,
pare United States v.
(commu-
(D.Conn.2009)
F.Supp.2d
troubling
majority’s
as
“sub-
Just
as the
step”
sensitive
analysis
suggestion
nicating
stantial
is its
defense information to
a person actually
completes
organization
the crime
terrorist
on single occasion
7. The
nee
deviations from the
Majority Op.,
you
stantial
attempting
2004, prohibits
strued
has no
U.S.C.
control the
course,
have occurred.
S.Ct.
quirement
meeting, the
acy
majority’s
crime likewise
da
not reach that
so.
Judge Raggi expresses
the
Sabir's actions
a
finding
bona
personnel,
operative,
(emphasis supplied).
organization's
undercover
Fruit
would have
[i.e.,
Although
footnote
statutory
meeting's
bearing
in the
fide
step,
Sabir]
& S.S.
2339B(h).
definition
181
on behalf of’
rying out attacks
India
providing
self
evidence
insufficient
that the
organization equaled conspiring
evidence
without
terrorist
“personnel,”
as
such information
requested
organization
“personnel”);
recruit as
United
provide
“arrangement!
prior
]”
to a
pursuant
Marzook,
F.Supp.2d
v.
383
States
requested”),
as
“did
that
the defendant
(N.D.Ill.2005) (recruiting another “to
1065
(2d
Conspiracy charges unaccompanied
aby
offense,
Whatever the “sort” of
Sabir was
completed
relatively
substantive crime are
rare,
charged with
mere
membership
troubling
and can be
when the avail-
Qaeda
being
or for
sympathetic
some
able
speculate
evidence leaves one to
radical
Signing
whether
Islamic cause.
the al
objective
the criminal
on to
would have
(as
ease,
loyalists
been
roster of
reprehensible
realized.
In this
such concern
be)
not,
be,
as that
is
compounded by
need to
find the line
could not
issue,
between radical
crime at
since
beliefs
radical action.10
“Section 2339B
The law of
does not
attempt has evolved to
criminalize mere
in a
membership
take the
guesswork
finding designated foreign
out of
line. At
organization.
terrorist
attended,
one meeting Sabir
It
prohibits
he indeed
instead
providing ‘material
terrorist,
chanted the
by support’
mantra of
led
a group.”
to such
Humanitarian
government
Law,
agent
inspired
2718;
by his
130 S.Ct. at
see also id. at 2730
sentences, moreover,
concurrent
principles
foreign
since the
organization,
of a
terrorist
conspiracy
charges
and substantive
"are actu-
activity protected by
an
the First Amend-
ally encompassed
same conduct.”
Stewart,
ment.”
(contrasting
liefs or him- providing crime” of attempting [the] Ma- Qaeda’s control. to work under self only evi- Op., [151]. ante jority control is the tending to show such dence litigants, presumably oath. But the GIORDANO, Plaintiff-Appellant, John alone is agree that the oath majority, best, At imprisonment.11 not a basis inten- agreement the oath reflects AMERICA, INC., MARKET directions, inten- but “mere tion to follow Company, Inc., The Chemins specified crime does tion to commit Defendants-Appellees. Manley, 632 F.2d attempt.” to an amount Docket No. 06-2071-cv. omitted). (internal quotation marks at 988 majority’s apparent preoccu- Despite the Appeals, United States Court mind, state of the inde- pation with Sabir’s Second Circuit. in this case attempt evidence of pendent Argued: Those Nov. 2007. pair phone numbers. remains morsels cannot sustain evidentiary April Final 2009. Submission: substantive conviction. Question Answered: Certified illustrates, history tragically As recent Nov. 2010. any form of material provision Feb. 2011. Decided: organization emboldens to a terrorist and increases the likelihood of organization why That
future terrorist attacks.
is
Con-
criminalizing such
enacted statutes
gress
stated, however, the ma-
activity. Simply
unwisely
at once
re-written
jority has
freedom-of-associa-
attempt,
law of
raised
treaded on dou-
possibly
tion concerns and
“opening the door
jeopardy protection,
ble
to mischievous abuse.” United
‘‘[Tjhe
It
powerful evidence of those crimes.
shows
government’s
In the
own words:
itself,
Rafiq
thinking.
exactly
It
by Rafiq
what
bayat pledge,
pledge
Qae-
aid al
bayat
his sincere commitment
a crime.... The
shows
was not in and of itself
Tr„
crime,
at 2337.
compelling
Trial
05 cr
it
da.”
itself is not the
but
5/15/07
notes
an at-
“[w]hereas
every
defendants in
case
tempt
possess
mentioned
to
focuses on a defendant’s
above,
attempt
were far closer to an
an
acquire,
attempt
efforts to
provide
Although
responded:
guess
they
Sabir told
undercover that he
"I
that it means that if
job”
"living
could “leave
if
hospital
on the
forcing
hospital property,
are
me
in the
to live
property
enough
big
problem,”
of a
GX
might just
then I
have to submit to that and to
906T at
the undercover mentioned Sabir’s
to, uh,
try
way.”
find another
Id. at 67-69.
ID,
“very helpful” hospital
to which Sabir
real,
meaningful.
be
measurable and
supply,
a distinc- would
his efforts
focuses on
(not-
Stallworth,
n.