UNITED STATES OF AMERICA, Appellee, v. KHAWAJA MUHAMMAD FAROOQ, Defendant-Appellant.
No. 21-0707
United States Court of Appeals for the Second Circuit
August Term 2022 Argued: November 23, 2022 Decided: January 30, 2023
Before: KEARSE, PARK, and MENASHI, Circuit Judges.
Defendant-Appellant Khawaja Muhammad Farooq pled guilty to one count of extortion under
We conclude as follows: First, the plea proceedings were not defective because the district court correctly determined that Farooq understood the “nature of each charge” to which he pled.
JOSHUA PHILIP BUSSEN (Brian A. Jacobs, on the brief), Morvillo Abramowitz Grand Iason & Anello P.C., New York, NY, for Defendant-Appellant.
KAYLA C. BENSING (Amy Busa, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, New York, NY, for Appellee.
Defendant-Appellant Khawaja Muhammad Farooq pled guilty to one count of extortion under
We conclude as follows: First, the plea proceedings were not defective because the district court correctly determined that Farooq understood the “nature of each charge” to which he pled.
I. BACKGROUND
A. Facts1
Farooq met Jane Doe in 2013 when she traveled from Pakistan to the United States for business. They remained in touch and began a romantic relationship after she returned to Pakistan. They communicated over Skype and WhatsApp and had some accounts with shared passwords. In 2016, Farooq asked Jane Doe‘s family for permission to marry her, and the family refused. Jane Doe ended the relationship shortly after that. Farooq continued to contact Jane Doe, but she did not respond.
Farooq then began sending emails and text messages to Jane Doe‘s coworkers. He also sent individuals to Jane Doe‘s workplace to ask her to contact him. In early 2018, one of Jane Doe‘s coworkers told her that Farooq was asking Jane Doe to log on to a shared Skype account to see some photos. She logged on and saw sexually explicit photos that Farooq had taken of her without her consent. Farooq threatened to share the photos with her family, coworkers, and village if she did not call him. Farooq knew that Jane Doe is from a conservative village in Pakistan where women may be harmed or even killed if they are perceived to bring dishonor on their families.
Jane Doe shared what was happening with her brother-in-law John Doe. Farooq continued to send threatening messages to Jane Doe: “Don‘t treat anyone like a dog. When a dog becomes crazy, it bites and its poisonous bite can kill a person. . . . You treated me less than a dog. . . . You would not have listened to me, if I had not saved all your pictures.” PSR ¶ 10. He also sent threatening messages to John Doe, stating that he would send the photos to John Doe‘s colleagues, get him fired, and “destroy” him. Id. ¶ 18.
At the time, Farooq worked as a journalist for a Pakistani publication and carried a United Nations press pass. He referenced his press access in his messages to Jane Doe and John Doe, including, for example, by stating to John Doe: “I have started the proceedings with a local TV channel in the US. I am requesting you to stop this non sense [sic] . . . otherwise this news will broadcast on CNN, Fox news and BBC London.” District Ct. Doc. No. 59, Ex. 3. Farooq messaged one of Jane Doe‘s coworkers that “it‘s better for [Jane Doe] to talk to me. Otherwise I will post her nude pictures and whatever [John Doe] is saying about her, on all the university websites and social media.” PSR ¶ 15. Farooq also contacted the Prime Minister of Pakistan, the Chief Justice of the Pakistani Supreme Court, the Consul General of Pakistan to the United States in New York, and the Chief Minister of Punjab with information about Jane Doe and John Doe.
Farooq‘s messages came to the attention of the FBI, and he was arrested in Brooklyn in 2019.
The government charged Farooq with two counts of extortion with threats to injure Jane Doe and John Doe under
1. The Plea Proceeding
In June 2019, Farooq pled guilty to Count Two of the indictment—extortion of Jane Doe under
Defense counsel: Your Honor, if I may add as a matter of law, there are two elements that I think are legal questions rather than factual. I‘ve discussed with Mr. Farooq, and he will stipulate, that the relationship that he sought to have with Jane Doe, if she complied with his requests, is a quote, “thing of value.”
The Court: That‘s what I was going to ask you.
Defense counsel: And is also not something to which he was legally entitled.
The Court: So you would stipulate to the fact that this relationship meets the definition of thing of value for purposes of Section 875(d)?
Id. at 208-09. Farooq also stipulated that his “intention” was to make Jane Doe “feel that if she did not come back to [him, Farooq] would send the pictures to other men.” Id. at 210.
Seven months later, Farooq, proceeding pro se, moved to withdraw his guilty plea, arguing that it was not voluntary and that the statements he made during the plea proceeding were false and coerced by his attorney. The district court denied Farooq‘s motion to withdraw the guilty plea because of the delay between his plea and the motion, the failure to raise any new evidence to support his claims of innocence, and the absence of evidence of coercion. See United States v. Farooq, No. 19-CR-100, 2020 WL 1083624, at *2-6 (E.D.N.Y. Mar. 6, 2020).
The district court also denied Farooq‘s subsequent motions to withdraw his guilty plea after reviewing transcripts that Farooq argued would show his innocence. The court concluded that the transcripts did not support his new theory that Jane Doe consented to the extortion to persuade John Doe to let her return to her relationship with Farooq.
2. Sentencing
The district court sentenced Farooq to the maximum sentence of two years’ imprisonment with one year of supervised release. The district court imposed two special conditions of supervised release at issue on appeal:
[1] The defendant shall endeavor to have retracted any newspaper or press article that he has facilitated the
publishing or posting of, either directly or indirectly, and that contains the true name or other personal identifying information, place of employment, or visual image of John Doe or Jane Doe. [2] The defendant shall refrain from disseminating any information about Jane Doe or John Doe in any medium, either directly or indirectly, including through other individuals, absent seeking and obtaining permission from the Court.
District Ct. Doc. No. 142 at 5.
3. Post-Sentencing Developments
Farooq‘s initial term of supervised release was set to expire in April 2022. In March 2022, the district court extended that initial term to resolve Farooq‘s alleged violation of the conditions of his supervised release. Farooq pled guilty to one count of violating the conditions of supervised release by contacting John Doe. In November 2022, the district court sentenced Farooq to time served and imposed a renewed term of supervised release set to expire on February 9, 2023. The new term of supervised release included the special condition prohibiting dissemination of information about Jane Doe and John Doe, but it did not renew the condition requiring Farooq to seek retraction of articles he published about Jane Doe and John Doe.
II. DISCUSSION
Farooq argues that the district court erred by not separately explaining the “wrongfulness” element of extortion to him during the plea proceeding. This argument is without merit.
Farooq further challenges the special conditions of supervised release on First Amendment grounds. First, the special condition requiring Farooq to seek retraction of articles he published is now moot. Second, the special condition requiring the district court‘s approval before Farooq publishes information about Jane Doe and John Doe is narrowly tailored under the circumstances here.
A. The Plea Proceeding
1. Legal Standards
We review Farooq‘s challenge to the plea proceeding for plain error because he did not object below. United States v. Balde, 943 F.3d 73, 95 (2d Cir. 2019). To show plain error, there must (1) be an error that (2) is “clear or obvious, rather than subject to reasonable dispute,” and (3) the error must have “affected the appellant‘s substantial rights,” and (4) have “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. at 96 (citation omitted).
Farooq pled guilty to extortion under
2. Application
The question here is whether Farooq understood the “nature of [the extortion] charge.”
As an initial matter, Jackson involved jury instructions, which are generally held to a higher standard than the district court‘s guidance during a plea proceeding. See United States v. Saft, 558 F.2d 1073, 1079 (2d Cir. 1977) (“The contention that even in [a plea proceeding] the judge must deliver to the defendant the equivalent of
In any event, Farooq misreads Jackson‘s analysis of “wrongfulness.” The defendant in that case requested a jury instruction separately explaining the “wrongfulness” element of extortion. Jackson, 180 F.3d at 65. The district court rejected the proposed jury instruction because “threatening someone‘s reputation for money or a thing of value is inherently wrongful.” Id. (citation omitted). We clarified, however, that a threat to reputation is not wrongful under
The record reflects that Farooq understood the wrongfulness of his conduct. He stipulated that the relationship he sought to have with Jane Doe is a “thing of value” and is “not something to which he was legally entitled.” App‘x at 209. Under Jackson, that amounted to an admission that Farooq‘s threat was “inherently wrongful.” 180 F.3d at 71. And the threat to Jane Doe‘s reputation—i.e., the dissemination of nude pictures—“had no nexus with any plausible claim of right.” Id. at 70 (noting that threats of disclosure of “sexual indiscretions” are “inherently wrongful“). Thus, Farooq‘s stipulation makes clear that he understood the nature of the charge
B. The Conditions of Supervised Release
1. Legal Standards
We review special conditions of supervised release for abuse of discretion. United States v. McLaurin, 731 F.3d 258, 261 (2d Cir. 2013). But “[w]hen a challenge to a condition of supervised release presents an issue of law, we review the imposition of that condition de novo, bearing in mind that any error of law necessarily constitutes an abuse of discretion.” Id. (citation omitted).
In general, “a district court may impose special conditions of supervised release that are reasonably related to certain statutory factors governing sentencing, involve no greater deprivation of liberty than is reasonably necessary to implement the statutory purposes of sentencing, and are consistent with pertinent Sentencing Commission policy statements.” United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019) (cleaned up). Relevant factors include the “nature and circumstances of the offense,” “the history and characteristics of the defendant,” and the need for “adequate deterrence,” “protect[ing] the public from further crimes,” and “provid[ing] the defendant with needed . . . correctional treatment in the most effective manner.” United States v. Bolin, 976 F.3d 202, 210 (2d Cir. 2020) (quoting U.S.S.G.
2. Retraction Requirement
The special condition of supervised release requiring Farooq to seek retraction of articles he published about Jane Doe and John Doe has expired, so his challenge to this condition is moot. In November 2022, the district court did not renew this condition when sentencing Farooq for the violation of his initial term of supervised release. Farooq asserts that his challenge to the condition is not moot because it is “capable of repetition, yet evading review.” Turner v. Rogers, 564 U.S. 431, 440 (2011). We are unpersuaded.
Expiration or modification of a special condition of supervised release typically moots an appeal challenging that condition. See United States v. Juv. Male, 564 U.S. 932, 936 (2011) (holding that there is no presumption of collateral consequences for an expired sentence); United States v. Johnson, 446 F.3d 272, 276 (2d Cir. 2006) (noting that an objection to a condition of supervised release became moot when the condition was modified). The district court did not renew this condition, and there is no indication that it would reimpose it again.3 Farooq‘s appeal of this condition is thus moot.
Farooq also challenges the special condition of supervised release requiring him to seek the district court‘s approval before disseminating any information about Jane Doe and John Doe. Although this condition restricts Farooq‘s First Amendment rights, we conclude that it was within the district court‘s discretion to impose this condition under the circumstances here. The condition is closely related to Farooq‘s criminal conduct and is narrowly tailored to protect Jane Doe and John Doe in light of Farooq‘s history of threatening them and his background as a journalist.
As a general matter, conditions that would be unconstitutional “when cast as a broadly-applicable criminal prohibition” may be “permissible when imposed on an individual as a condition of supervised release.” Eaglin, 913 F.3d at 96. The constitutional rights of defendants subject to conditions of supervised release may be limited. See, e.g., Farrell v. Burke, 449 F.3d 470, 497 (2d Cir. 2006) (“[W]e note that the First Amendment rights of parolees are circumscribed.“); Porth v. Templar, 453 F.2d 330, 334 (10th Cir. 1971) (“[One on probation] forfeits much of his freedom of action and even freedom of expression to the extent necessary to successful rehabilitation and protection of the public programs.“).
We recognize that the special condition of supervised release prohibiting Farooq from “disseminating any information about Jane Doe or John Doe in any medium . . . absent seeking and obtaining permission from the Court” is a content-based prior restraint on speech. See United States v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005) (defining a prior restraint as a “judicial order that suppresses speech—or provides for its suppression at the discretion of
Under the circumstances of this case, the special condition is narrowly tailored. First, it is “reasonably related” to the “nature and circumstances” of Farooq‘s offense. U.S.S.G. § 5D1.3(b)(1). The charged conduct and the conduct to which Farooq pled guilty related to exposing Jane Doe‘s and John Doe‘s identities and disseminating information that would embarrass and harm them. Farooq pled guilty to emailing Jane Doe and “threaten[ing] to send naked pictures of her to other men in Pakistan unless she came back to [him].” App‘x at 208. Farooq also contacted Jane Doe and John Doe both directly and indirectly through their coworkers. So the conduct covered by the special condition is closely related to the conduct for which Farooq was charged.
Second, the special condition is closely related to Farooq‘s “history and characteristics.” U.S.S.G. § 5D1.3(b)(1). Farooq repeatedly violated court orders throughout the case, including
Third, the condition is narrowly tailored because it restricts public dissemination of information only about Jane Doe or John Doe. It is not a broad prohibition on speaking about the case or criticizing the attorneys or the district court. See United States v. Coleman, No. 98-1299, 1999 WL 278878, at *2 (2d Cir. May 4, 1999) (explaining in dicta that prohibiting the defendant from criticizing the government “or anyone else” would “surely exceed a District Court‘s discretion“). The condition itself limits the restriction to “information about Jane Doe or John Doe.” The district court explained the limited scope of the condition during the sentencing hearing, noting that the purpose was to “prevent Mr. Farooq from continuing to threaten [the victims] through media.” App‘x at 573. So the scope of the condition was limited to information about Jane Doe and John Doe.
Fourth, the condition is limited in duration. Upon Farooq‘s guilty plea to the violation of supervised release, the district court
Finally, the condition still allows Farooq to seek permission from the district court to publish information about Jane Doe or John Doe. In light of these limitations and the record before us, we conclude that it was within the district court‘s discretion to impose this special condition.
III. CONCLUSION
We have considered all of Farooq‘s remaining arguments and have found them to be without merit. For the reasons set forth above, the judgment of the district court is affirmed.
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