UNITED STATES of America, Plaintiff-Appellee, v. Fawzi Mustapha ASSI, Defendant-Appellant.
No. 09-1021.
United States Court of Appeals, Sixth Circuit.
June 30, 2011.
570
OPINION
SOLOMON OLIVER, JR., Chief District Judge.
Defendant-Appellant, Fawzi Mustapha Assi (“Assi” or “Appellant“), appeals his
I. FACTUAL AND PROCEDURAL HISTORY
After receiving a Foreign Intelligence Surveillance Act Order permitting the Federal Bureau of Investigation (“FBI“) to intercept calls on Assi‘s phones on February 2, 1998, FBI agents monitored Assi‘s activities. The FBI suspected that Assi would attempt to leave for Lebanon with prohibited items on July 13, 1998. On that day, United States Customs officers stopped Assi at the airport and discovered two Boeing global positioning satellite systems, night vision equipment, and a thermal imaging camera in Assi‘s luggage. Assi remained in the United States, and the FBI continued to monitor him. The day after Assi was stopped at the airport, he was seen throwing items into two dumpsters. Federal agents retrieved the items, which included: (1) a computer printout of addresses of ministries and various departments of the Israeli government; (2) an article entitled, “Charge Particle/Force Field Generator;” (3) an edition of U.S. News and World Report with the cover story of “The Mind of an Assassin, Israel‘s Enemies Within;” (4) an edition of Popular Science magazine with the cover story of “Digital Warrior;” (5) an edition of Popular Mechanics magazine, in which sections of an article entitled, “Felon Busters,” were highlighted; (6) photographs of a person whо appeared to be Hassan Nasrallah, who was the Secretary General of Hizballah; and (7) a course catalogue for “Radar Cross Section/Stealth Technology.” On July 17, 2008, the FBI searched a former residence of Assi and found three additional sets of night goggles. FBI agents interviewed Assi on July 17, 1998, and July 21, 1998.
As a result of this investigation, Assi was arrested on July 23, 1998, on a complaint that charged him with violations of: (1)
On November 28, 2007, Assi pled guilty to count one of the Indictment, namely that he provided material support to a designated foreign terrorist organization, in this case Hizballah,1 in violation of
Special Agent Joseph Testani, Immigration and Customs Enforcement Special Agent Michael Steinbach, and FBI Special Agent Terrence Morisi, testified at the Hearing on behalf of Appellee and about the facts and circumstances of the criminal investigation of Appellant. Professor Augustus Richard Norton (“Professor Norton“), a professor who has extensively studied Hizballah, testified at the Hearing for the Appellant. He testified that Hizballah was a political and cultural organization that had a military component. He testified about how Hizballah participated in the Lebanese political process in 1992 and won 12 seats in the Lebanese Parliament. However, he also testified that although Hizballah was a “very immature organization” when it first formed in 1982, by 1998, it was “playing the leading role in the resistance” against Israel in southern Lebanon.
At the conclusion of the Hearing, the district court issued a written opinion, in which it found that
II. STANDARD OF REVIEW
The issue of whether a district court‘s sentence is reasonable is reviewed under a deferential abuse-of-discretion standard. United States v. Mason, 410 Fed.Appx. 881, 885 (6th Cir.2010) (specifically addressing application of the Terrorism Enhancement); United States v. Sexton, 512 F.3d 326, 331 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). To determine whether the facts warrant an application of sentencing enhancement, however, this court applies a clearly erroneous standard. United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th Cir.2002) (“We conclude that the clear error standard is also appropriate for reviewing sentencing decisions under [Sentencing Guidelines] § 3C1.1 where the sole issue before the district court is a fact-bound application of the guideline provisions.“). We review the district court‘s interpretation of the Sentencing Guidelines de novo. United States v. Anthony, 280 F.3d 694, 698 (6th Cir.2002).
III. LAW AND ANALYSIS
The Terrorism Enhancement,
(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant‘s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.
Title
(g) Definitions.—As used in this section—
(5) the term “Federal crime of terrorism” means an offense that—
(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and
(B) is a violation of—
(i) . . .
2339B (relating to providing material support to terrorist organizations) . . .
A. The Legislative History of § 3A1.4
Appellant argues that the legislative history of
This court has previously determined that, “[t]he [Sentencing] Guidelines should be interpreted as if they were a statute or a court rule, and we will ‘follow the clear, unambiguous language if there is no manifestation of a contrary intent.‘” United States v. Lewis, 900 F.2d 877, 881 (6th Cir.1990) (quoting United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir.1989)). Thе “beginning point” for statutory construction is “the language of the statute, and when a statute speaks with clarity to an issue[,] judicial inquiry into the statute‘s meaning, in all but the most extraordinary circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992). Moreover, “only the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language.” Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984).
* The Honorable Solomon Oliver, Jr., Chief Judge of the United States District Court for the Northern District of Ohio, sitting by designаtion.
B. The Definition of the Word “Government” in 18 U.S.C. § 2332b(g)(5)
In Appellant‘s Amended Brief, he maintains that “the word ‘government’ in 18 USC § 2332b(g)(5) cannot be logically interpreted to include the State of Israel . . . where Israel‘s army invaded the territorial integrity of Lebanon in violatiоn of International Laws and occupied Lebanese territory in continued violation of International Law.”
As a preliminary matter, a review of pertinent case law shows that the term “government” in
As indicated above, Appellant “agrees that the definition of ‘government’ would ordinarily include the State of Israel.” However, Appellant maintains that, by invading and remaining within the borders
We do not accept Appellant‘s assertion that Israel is no longer a “government” under
Here, Appellant does not argue that his acts are not among the harmful acts prohibited or that his acts were not intended to coerce Israel. Therefore, his actions fall under
Appellant raises an alternative argument that if the term “government” includes a foreign government acting outside of its territorial borders in violation of another state‘s territorial integrity, then Appellant has been deprived of his due process right to fair notice that his conduct is a crime. Appellant relies on Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), in support of this argument, which detеrmined that a Los Angeles felon registration law was unconstitutional when applied to someone who was not given notice of the duty to register, and United States v. Salisbury, 983 F.2d 1369, 1378 (6th Cir.1993), which found a voting law unconstitutionally vague as applied to the defendant in that case. We do
Therefore, upon de novo review, we find that the district court correctly determined that the term “government” includes the State of Israel. See Anthony, 280 F.3d at 698.
C. The Terrorism Enhancement
Appellant argues that the facts of this case do not support the application of the Terrorism Enhancement. In support of this argument, Appellant maintains that “there has been no showing that his actions were a calculated effort to influence the conduct of a government by intimidation or coercion” and that “there has been no showing that [he] was acting to retaliаte against conduct by a government.” Appellant argues that his “argument as to the insufficiency of the evidence is predicated on the illegality of the Israeli conduct being legitimately resisted,” as Hizballah is a legitimate resistance and political organization, not a terrorist organization.
In response, Appellee argues that the district court‘s determination that Appellant‘s actions were calculated to influencе the conduct of Israel by intimidation or coercion was correct. Appellee notes that Appellant‘s expert, Professor Norton, who testified at the Hearing, stated that Hizballah‘s military operations in the 1990s were designed to put pressure on and influence the Israeli government to withdraw forces from southern Lebanon.
The district court determined that Hizballah‘s actions against Israel were coercive because Hizballаh conducted military operations against Israeli forces. United States v. Assi, 586 F.Supp.2d 841, 849 (E.D.Mich.2008) (“Plainly, such armed military offensives against Israeli troops qualify as ‘coercion.‘“). The Evidentiary Hearing transcript contains evidence supporting the district court‘s finding that Hizballah carried out military actions against Israeli forces. (E.g., 6/23/2008 Hearing Tr., Dist. Ct. Dkt. 147, at pp. 176-77 (In 1998, Hizballah was “the most professional component of the resistance” against the Israeli Defense Force in Southern Lebanon.); Id., at p. 177 (“On the military level, I would say [Hizballah‘s] operations tended to be the best rehearsed, the most professional and so on.“); Id., at p. 178 (“The typical attack [by Hizballah] would be on Israeli soldiers or thermal [sic] militia allies.“); Id., at p. 181 (Norton explains how Hizballah has a political component and a military component.).) Moreover, Appellant stated in his Supplemental Sentencing Memorandum that “the material he provided was meant to support the resistance in south Lebanon in their armed conflict with the Israeli Defense Force.” Appellant pled guilty to attempting to provide two Boeing global positioning satellite modules, night vision goggles, and a thermal imaging camera to Hizballah. We therefore conclude that it was not clearly erroneous for the district court to find that military actions are coercive in nature. See Jackson-Randolph, 282 F.3d at 390.
Appellant arguеs that, before determining that his actions promoted a federal crime of terrorism, the district court should have considered whether Appellant‘s assistance to Hizballah was justified under International Law. Appellant relies on three International Law doctrines: (1) the right to self-defense pursuant to Article 51 of the United Nations Charter; (2) the Act of State Doctrine; and (3) the principle of comity. Appellee states, in response, that these International Law doctrines would apply only arguably if Hizballah were considered a part of or equivalent to the official government of Lebanon. Appellee maintains that Hizballah is not the Lebanese government and instead is an organization designated as a terrorist organization by the United States government.
We find that the international laws that Appellant cites are not relevant to this case, as all of the treaties and doctrines cited apply to states, not individuals. Appellant attempts to rely on the right to self-defense enshrined in Article 51 of the United Nations Charter. It is beyond dispute that Article 51‘s right to self-defense does not apply to an individual, but instead applies to states, or in limited circumstances, to self-determination movements that take on the legal obligations of states. U.N. Charter, Arts. 4, 51, 110; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Op., 2004 I.C.J. 136, ¶ 139 (Jun. 9) (“Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.“).
Appellant also argues that the Act of State Doctrine and the “international comity doctrine” prevented the district court from applying the Terrorism Enhancement. The Act of State Doctrine does not apply, as it bars оnly a United States federal court from judging the legality of an action taken by a foreign state within its territory. Samantar v. Yousuf, — U.S. —, 130 S.Ct. 2278, 2290, 176 L.Ed.2d 1047 (2010). In this case, the district court judged the legality of Appellant‘s actions, not Lebanon‘s. The doctrine of comity, which is comprised of nonbinding practices that states adopt out of courtesy, is also inapplicable to this case. As stated before, the issue of whether or not to apply the Terrorism Enhancement does not cаll into question the legality of Lebanon‘s resistance against Israel. The district court only needed to determine whether Appellant‘s actions fell under
E. Jurisdiction
Finally, Appellant argues that Appellee does not have jurisdiction to adjudicate the Terrorism Enhancement because it has no “personal stake” in the litigation and has “suffered no injury as a result of Defendant‘s аssistance to the Lebanese Resistance action.” Appellant argues that the Appellee must prove: (1) that “it has suffered an ‘injury in fact‘;” (2) that “the injury is fairly traceable to the challenged action of the defendant;” and (3) that “it is likely . . . that the injury will be redressed by a favorable decision.” Cleveland Branch NAACP v. City of Parma, 263 F.3d 513, 523-24 (6th Cir.2001). In response, Appellee argues that Appellant‘s argument arises from civil cases, not criminal cases. We reject Appellant‘s argument because it does not apply to criminal cases. The decision whether or not to apply the Terrorism Enhancement does not require an analysis of whether the Appellee has standing.
For the foregoing reasons, we AFFIRM Appellant‘s sentence and find that the district court appropriately applied the sentence enhancement found in United States Sentencing Guidelines