United States v. KhanUnited States v. Khan
Lead Opinion
Affirmеd in part; remanded in part by published opinion. Judge Duncan wrote the majority opinion, in which Judge Widener joined. Judge Goodwin wrote a separate opinion concurring in part and dissenting in part.
OPINION
Defendants Masoud Khan (“Khan”), Sei-fullah Chapman (“Chapman”), and Ham-mad Abdur-Raheem (“Hammad”) appeal their convictions after a bench trial on various counts related to a conspiracy to wage armed conflict against the United States and a conspiracy to wage armed conflict against a country with whom the United States is at peace. Khan and Chapman also appeal those portions of their sentences related to multiple violations of
For the reasons explained below, we affirm the convictions of all three defendants as well as the sentences of Khan and Chapman. However, we reverse Ham-mad’s sentence as unreasonable and remand to the district court for re-sentencing.
Because of the lengthy and complex background of this case, we initially describe the facts and procedural history generally applicable to all of the defendants. Facts specific to each defendant will be set forth in the discussion of the arguments of еach.
I.
Between 1999 and September 11, 2001, Khan, Chapman and Hammad attended the Dar al Arqam Islamic Center in Falls Church, Virginia where Ali Timimi (“Timi-mi”), a primary lecturer, spoke of the necessity to engage in violent jihad
In the spring of 2000, members of the group began simulating combat through paintball exercises
Because Hammad and Chapman had prior military experience, they assisted in leading the paintball drills and conducting the training. Chapman eventually took over and increased the drills’ intensity. Chapman told the group that members were going to learn to fight; he enforced Draconian training and imposed physical punishment for infractions of rules that were out-of-character for a recreational
Members of the group had ties to Lash-kar-e-Taiba (“LET”), the military wing of a Pakistani organization initially founded to conduct jihad against Russians in Afghanistan. Between 1999 and 2003, LET primarily focused on expelling India from Kashmir. Both through its website and through other means, LET proclaimed its support for and involvement in a number of violent acts, particularly against India. In addition, LET advertised that it provided free jihad training camps in Pakistan.
One member of the paintball group, Mr. Hamdi, openly discussed wanting to go to fight in Kashmir and ultimately die as a martyr in combat. Hamdi traveled to Pakistan in August 2000 and was admitted to the LET camps. While there, he fired on Indian positions in Kashmir. Upon his return, he rejoined the paintball group and informed the others about LET’S mission to destroy India, Israel, and the United States.
In September 2000, FBI agents visited Chapman and asked him about the paintball activities. After this interview, members of the group discussed whether they should continue in light of the government’s knowledge of their activities. They decided to do so, but with heightened secrecy.
Seeking more intense and realistic fighting experience in the summer of 2001, Chapman traveled to the LET camps in Pakistan. While there, he participated in training and fired various rifles and handguns, including at least one automatic weapon. During that time, Chаpman also met an LET official in Pakistan by the name of Singh. In 2002, Singh tried to purchase over the internet a wireless video module and a control module for use in an unmanned aerial vehicle (“UAV”). Singh selected an airborne video system with a camera and transmitter able to transmit video images from a UAV back to a receiver from as far as 15 miles away. The video camera could be used in military reconnaissance and in helping aim artillery and other weaponry across enemy lines. Singh placed his order from England, but the vendor was unable to confirm the overseas credit card. Chapman and Khan assisted Singh in completing the purchases. In the summer of 2002, Singh visited Virginia, staying first with Chapman and then with Khan.
The terrorist attacks of September 11, 2001, affected both the focus of the paintball group and the relationship of its members to the Dar al Argam Islamic Center. That night, Timimi argued that the attacks should not be condemned. He was thereafter not invited to lecture at Dar al Ar-gam, and the tapes of his speeches were destroyed. However, on September 16, 2001, Timimi met with the paintball group, including Khan and Hammad, at a member’s house. Chapman, still at the LET camps, was not present. Timimi said that the September 11 attacks were justified and that it was the obligatory religious duty of those present to defend the Taliban against the American troops that were expected to invade Afghanistаn in pursuit of Al-Qaeda. The discussion focused on training at the LET camps as necessary preparation to fight with the Taliban against the United States. Several of the members, including Khan, expressed their intent to train at the LET camps and to fight in Afghanistan after their training was complete. For purposes of their travel, they agreed that Khan would be their “emir,” or leader.
American troops began a ground war against the Taliban on or about October 20, 2001. By mid-November 2001, American and allied troops were defeating Taliban forces throughout northern Afghanistan. On November 13, 2001, the Taliban withdrew from the Afghan capital of Kabul, and forces allied with the United States took control of the city. By November 15, Taliban forces had retreated to Kandahar. In November 2001, while at LET camp, Khan learned through radio reports that American forces were quickly defeating thе Taliban in Afghanistan. Further, he learned that Pakistan had closed its border with Afghanistan and that LET would not facilitate his travel there. Moreover, Pakistani authorities were aggressively removing foreigners from the camps. As a result, Khan left the camps in the fall of 2001 without ever having reached Afghanistan.
The government’s investigation into the activities of Khan, Chapman, Hammad, and their colleagues became public in February 2003, when a search warrant was executed at Timimi’s house. On March 24, 2003, the FBI approached Caliph Abdur Raheem (“Caliph”), one of the paintball members who was tried with defendants in this case and acquitted, and obtained a statement from him. Caliph told the FBI that paintball was used for jihad training and that the reason the trainees had acquired AK-47-style rifles was that they were the type of weapon used overseas. When Hammad learned of the admissions’, he called a colleague with the “bad news” that Caliph had “cracked.”
As a result of the government’s investigation, Hammad, Chapman, and Khan, along with eight others — Caliph, Donald Surratt II, Yong Ki Kwon, Muhammed Aatique, Khwaja Hasan, Randall Todd Royer, Ibrahim Ahmed Al-Hamdi, and Sa-bri Benkhala — were indicted in June 2003 for various offenses concerning a conspiracy to engage in military expeditions against India and the United States.
Surratt, Kwon, Aatique, and Hasan all pleaded guilty before trial and cooperated with the government. As a result of their аssistance, a superseding indictment was returned against the remaining seven defendants in September 2003.
In January 2004, Royer and Hamdi pleaded guilty. Benkhala was tried separately and acquitted. The government proceeded against Caliph, Chapman, Ham-mad, and Khan. Chapman and Hammad moved to have their trial severed from Khan’s, arguing that evidence that would be presented against Khan would prejudice their right to a fair trial. The district court denied the motion for severance. Chapman, Hammad, and Khan then moved
At trial, the government presented the statements made by Caliph to the FBI that the paintball activities were intended to be training for jihad, and that the trainees had obtained AK-47 style weapons because that was the type of weapon used in combat overseas. After the government’s presentation of evidence against him, Caliph moved for an acquittal pursuant to
At the conclusion of the bench trial, the district court wrote a comprehensive opinion detailing the evidence against the three remaining defendants and referencing the wealth of cumulative evidence of record. Khan was acquitted on four counts and convicted on the following eight counts: (1) one count of conspiracy to enlist in armed conflict against the United States in violation of
Before the initial appeals of these convictions were briefed, the case was remanded for re-sentencing in light of United States v. Booker,
II.
Each of the defendants first challenges his convictions, arguing that they were not supported by sufficient evidence. When we assess the sufficiency of the evidence of a criminal conviction on direct review, “[t]he verdict of [the] jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States,
A. Khan’s Convictions
1.
Khan argues that there was insufficient evidence presented at trial to support his convictions for (1) Count One, conspiracy to enlist in armed conflict against the United States in violation of
The essential elements of Count One, as applied to Khan, are (1) a conspiracy (2) to enlist or engage within the United States or any place subject to the jurisdiction thereof, (3) with intent to serve in armed hostility against the United States.
There was sufficient evidence to support the district court’s findings of guilt on all of these counts. When the group members were meeting and discussing going to Afghanistan to aid the Taliban against the United States, Khan exhorted the others to go with him to Afghanistan because “the cowards and the weak heart-ed are the first to run away.” J.A, 1013. Khan did, in fact, travel to Pakistan to engage in training in the LET camps, and there was evidence that Khan intended to go to Afghanistan to fight with the Taliban against the United States after training. Khan was also selected as the leader of the group when they arrived in Pakistan. All of the group members that Khan led directly testified that they intended to engage in armed hostilities against the United States. The district court found their testimony to be credible; indeed, it was unrebutted. We conclude that this evidence amply supports the finding that
2.
Khan next argues that there was insufficient evidence to support his conviction under Count Five, conspiracy to contribute material support to LET, knowing and intending that it was to be used in preparation for and in carrying out a conspiracy to kill or injure persons in a foreign country with which the United States is at peace, in violation of
The evidence reflects that LET broadly disseminated its goals for the destruction of India, America, and Israel on its web site and elsewhere. Khan was personally acquainted with Singh, an LET official, whom he assisted in purchasing paramilitary equipment. Even if Khan remained unaware of the nature of LET’S activities before training in its camps, he was certainly aware of it by the time he returned to them after leaving temporarily because the LET camps were full of descriptions of LET’S violent exploits. We therefore conclude that sufficient evidence was introduced for a rational trier of fact to find the essential elements necessary for Khan’s conviction under Count Five.
B. Chapman’s Convictions
1.
The district сourt found Chapman guilty of Count One, conspiracy to violate the Neutrality Act, which makes it a crime to
knowingly begin[] or set[] on foot or provide[] or prepare[] a means for or furnish[ ] the money for, or take[ ] part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace.
Chapman argues that, even assuming that paintball was a form of jihad training, the evidence does not reveal any specific intent to join LET attacks in India. We cannot agree. The record contains evidence that Chapman continued to provide support to two members of the group who expressly acknowledged going to Pakistan and firing on Indian troops while there. Sufficient evidence, therefore, supports the district court’s factual findings and, accordingly, the conspiracy conviction.
2.
Chapman next challenges his conviction under Count Five for conspiracy to provide material support to LET, a terrorist organization, in violation of
Chapman’s argument, however, overlooks the fact that, like Khan, he assisted Singh in purchasing parts for a UAV with video surveillance equipment designed primarily for military and scientific use. He provided this assistance after October 26, 2001. Export of this equipment was controlled by law; its uses as a “Military Unmanned Aerial Vehicle” include reconnaissance, weapons targeting, and similar military purposes. Even assuming that Chapman’s ongoing training activities with the paintball group did not qualify as a conspiracy for purposes of
3.
Chapman challenges his conviction under Count Twenty for possessing a firearm in furtherance of a crime of violence, in violation of
Chapman disputes the factual underpinnings of the district court’s conclusion, arguing that “the evidence is unequivocal that it was not until January of 2002 that Hamdi told Chapman that he had fired on Indian positions in Kashmir.” Appellants’ Br. at 54. To the contrary, however, Hamdi testified that he told Chapman that he had fired on Indian positions in September of 2000, prior to the transfer of the weapon. This evidence was sufficient to support the district court’s conclusion that Chapman possessed a rifle in furtherance
4.
The district court found that Chapman was guilty as to Count Twenty-Two because, again in violation of
C. Hammad’s Conviction
Hammad was convicted under Count Five of conspiring to contribute material support to LET in violation of
In short, we conclude that sufficient evidence supported all convictions for all defendants.
III.
A. Denial of Motion to Sever
Defendants Chapman and Ham-mad argue that the district court erred in denying their motions to sever their trials from Khan’s. They contend that the evidence admitted against Khan concerning the conspiracies to aid Al-Qaeda and the Taliban, which would not have been admitted against Chapman and Hammad in a separate trial, was so prejudicial as to deny them their right to a fair trial. We disagree.
“The grant or denial of a motion for severance ... is within the trial court’s discretion and will not be overturned absent a clear abuse of that discretion.” United States v. West,
In this case, Chapman and Hammad fail to demonstrate prejudice resulting from the district court’s ruling. The record instead shows that the judge, as factfinder, “meticulously sifted the evidence” against all of the defendants and did not demonstrate prejudice toward the other defendants based on the evidence admitted against Khan. Chapman was charged with seven counts and found not guilty of two of them. Hammad was charged with seven counts and found not guilty of four of them. Defendant Caliph was acquitted entirely. These particularized findings, along with the fact that defendants can point to no instances in the record in which the district judge displays prejudice toward defendants, indicate that the defendants each received a fair trial based on the evidence properly admitted against them and not on the evidence admitted against their co-defendants. We therefore hold that the district court did not abuse its discretion in refusing to sever Chapman and Hammad’s trials from Khan’s.
B. Waiver of Jury Trial Rights
Their severance motion having been denied, Chapman and Hammad moved in the alternative for a waiver of jury trial pursuant to
The three defendants now argue that the jury trial waiver was invalid because the- district court did not obtain their written waiver or otherwise conduct a colloquy on the record to determine that their waiver was knowing, voluntary, and intelligent. See, e.g., Adams v. United States,
If the defendant is entitled to a jury trial, the trial must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.
In this circuit however, we have not imposed such a requirement. In United States v. Hunt,
In • this case, we find that the record supports a conclusion that the waivers were voluntary, knowing, and intelligent, even though signed by counsel and in the absence of a colloquy. The motions for waiver here were made in the alternative to the motions for severance as a calculated part of the defendants’ trial strategy to prevent “inflammatory and рrejudicial evidence” from biasing a jury. J.A. 220.
Defendants Chapman and Hammad now claim that their waiver was not knowing or voluntary as a back door attack on the district court’s denial of their motions to sever. In other words, these defendants argue that when the district court denied their motion to sever, the prospect of having a jury hear potentially inflammatory evidence against Khan forced them to relinquish their right to a jury trial. This argument is unpersuasive. Criminal defendants must frequently choose from among less than desirable alternatives. The fact that defendants would have preferred severed jury trials does not make their choice of a non-severed bench trial over a non-severed jury trial unknowing or involuntary.
In short, the record reflects that the defendants’
C. The Validity of Counts Five and Eleven
All three defendants contend that Counts Five and Eleven are invalid because they constitute “conspiracies to conspire.” Specifically, Count Five alleged a conspiracy to provide material support in carrying out a violation of
The facial validity of the statutes under which the defendants were charged presents a question of law which we review de novo. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Corp.,
Under Count Five, defendants were convicted of “conspirpng] to,”
Courts have recognized that one conspiracy can serve as the predicate for another conspiracy when the “[overarching] conspiracy and the predicate conspiracy are distinct offenses with entirely different objectives.” United States v. Pungitore,
More fundamentally, the statutes in question expressly contemplate allowing one conspiracy to serve as the predicate offense for another conspiracy. Defendants point to no constitutional or other reason why these statutes should be struck down as invalid, and we find none.
D. Multiple Firearm Sentences for Multiple Predicate Offenses
Khan and Chapman next argue that it was error for the district court to sentence them separately for each separate
This court has previously held, based on the plain language of the statute, that convictions for separate crimes of violence can lead to multiple sentences under
In order to determine whether consecutive
Defendants concede that each of the underlying crimes of violence in this case supporting the
E.
Citing United States v. Angelos,
Defendants’ Eighth Amendment • argument is simply unavailing. “Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.” Harmelin v. Michigan,
Defendants’ arguments under the Equal Protection and Due Process Clauses are equally unavailing. Defendants acknowledge that
F. The Use of Caliph’s Statements at Trial
The defendants argue that it was a violation of the Sixth Amendment’s Confrontation Clause for the district court to admit the statements of their co-defendant, Caliph, against them without allowing them the opportunity to cross-examine him. They contend that the district court improperly considered Caliph’s statements to FBI agents that the paintball activities were intended to be training for jihad overseas, and that the trainees obtained AK-47-style weapons because that was the type of weapon used in combat over
The Supreme Court has recently held that, under the Sixth Amendment, “testimonial” out-of-court statements, such as those made during police interrogation, are inadmissible against a defendant unless that defendant has had the opportunity to cross-examine the declarant. Crawford v. Washington,
We do not reach the question of whether Caliph’s statements were admitted in violation of the Sixth Amendment because, to the extent that any error occurred, it was harmless. See Lilly v. Virginia,
The district court expressly found that Caliph’s statement was “cumulative of other testimony,” including “at least three or four other witnesses who essentially said the same thing.” J.A. 3268. The court also expressly noted that Caliph’s testimony was not the main piece of evidence on which it relied for its characterization of the paintball group and that “[t]here was tons of other evidence besides the statement of Caliph.” J.A. 3269. The court concluded that the admission of Caliph’s statement was harmless in light of the “other evidence on the same issue.” Id. Our independent review of the record confirms that Caliph’s statements were dupli-cative of a wealth of other evidence and that the defendants’ convictions and sentences would not have differed had Caliph’s statements not been admitted. See, e.g., J.A. 3178-80 (statement of Yusuf Wells, an outside observer of the paintball activity expressly found credible and reliable by the district court, indicating that paintball was a mеans of training); Id. at 3180 (statements of other witnesses saying same). We therefore reject defendants’ argument that the admission of Caliph’s statements constitutes reversible error.
G. The Use of Chapman’s Statements against Him for the Purposes of Impeachment.
Chapman testified at trial that he attended the LET camps and did not hide his attendance because his motives were innocent. The government impeached this testimony by introducing un Mirandized statements that Chapman made to FBI agents that he did not attend the LET camps. Chapman contends that these statements, which he made to FBI agents after being held in near solitary confinement for weeks and which the district court found were obtained in violation of Miranda, were also involuntary. As such, Chapman argues, they were not useable against him for any purpose. This argument fails.
In this case, the district court found that:
although Chapman’s statements were procured in violation of his constitutional rights under Miranda, they were not involuntary under Mincey. There was no evidence that government agents coerced Chapman’s statements through physical pressure or imminent threats of physical harm. Moreover, the statements were false exculpatory statements rather than admissions, which suggests that Chapman’s, decision to make the statements was a calculated one, and thereby that his rational intellect and free will had not been overborne. For these reasons, the statements were not excluded for purposes of impeachment.
J.A. 3383.
Our review of the record in this case indicates that the district court did not clearly err in making its factual findings concerning the confession, so we accept them as true. See J.A. 244-80 (indicating that Chapman received medical attention from the FBI before the interrogation and providing no indication of physical force or threats of physical force against him).
For the statements to be off limits to cross-examination as “involuntary,” the facts would have to show that they were not “the product of a rational intellect and a free will.” Mincey,
H. Selective Prosecution
Defendants finally argue that the district court erred in denying them dis-
A selective-prosecution claim asks a court to exercise judicial power over a ‘special province’ of the “Executive” and, accordingly, must pass a high threshold in order to succeed. United States v. Armstrong,
In order to obtain discovery on a selective prosecution claim, a defendant must make “a credible showing of different treatment of similarly situated persons.” Id. at 470,
In the present case, defendants do not make a showing that the other alleged terrorist groups about which they complain are “similarly situated” to them for purposes of selective prosecution. Defendants contend that “the only distinguishing factor between [the other alleged terrorist groups] and the appellants, is that the appellants are Muslim in a post-9/11 world.” Appellant’s Br. at 88. This contention, however, misses the very obvious fact that defendants were accused of supporting LET, a terrorist group that supported the Taliban and Al-Qaeda, which were in direct conflict with the United States. The Executive branch has the right to focus its prosecutorial energies on alleged terrorists groups that present the most direct threat to the United States and its interests. Accordingly, we hold that the district court did not err in denying discovery on defendants’ selective prosecution claim because the available evidence demonstrates that legitimate prosecutorial factors motivated the government’s prosecutorial decisions.
In short, we hold that all of the convictions in this case were supported by substantial evidence and were obtained without material error. We also hold that Khan’s and Chapman’s sentences were correctly imposed. Accordingly, we affirm all of the convictions for all three defendants and the sentences of Khan and Chapman.
IV.
The government cross-appeals Hammad’s sentence, arguing that the district judge erred in reducing Hammad’s sеntence below the recommended Sentenc
In United States v. Green,
to sentence a defendant, district courts must (1) properly calculate the sentence range recommended by the Sentencing Guidelines; (2) determine whether a sentence within that range and within statutory limits serves the factors set forth in [18 U.S.C.] § 3553(a) and, if not, select a sentence that does serve those factors; (3) implement mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a sentence outside of the Sentencing Guideline range better serves the relevant sentencing purposes set forth in § 3553(a).
Id. We also emphasized that any variance from the Guidelines range must be based on the § 3553(a) factors and further indicated that, for sentences falling outside of the Guidelines range, a district court must provide an adequate statement of reasons for the variance and rely on permissible factors in making the variance. Id. at 456-57. Finally, we noted that a reasonable sentence cannot give “excessive weight” to any relevant factor and must “effectn a fair and just result.” Id. at 457.
We later enhanced this understanding of reasonableness in United States v. Moreland,
With this guidance in mind, we now turn to the sentence in this case. The parties agree that the district.judge properly calculated Hammad’s Guidelines range as 97-121 months imprisonment. The 52-month sentence imposed on him therefore reflected a significant reduction.
Among the things that the Court is required to look at under section 3553(a) [are] any disparities that might arise among defendants with similar records and found guilty of similar conduct. Both Mr. Surratt and Mr. [Hammad] had military experience, as I recall. Both of them had completely clean records, and I think their overall participation in the paintball and the activities that led to their convictions was roughly equivalent.
There are some differences which I have taken into consideration. For example, there was evidence during the trial*500 about сonversations between this defendant and Mr. Royer about the investigation that was going on. As you recall, there [were] discussions about the destruction of computer files and that sort of thing, which suggests to me perhaps a slightly higher level of culpability but not significantly so.
I think that an appropriate sentence, taking into consideration what this defendant did, his background, and the needs for the sentence reflecting the seriousness of the offense to promote respect for law and also, however, to be just punishment, to serve as adequate deterrence to those in the public, to protect the public from further harm from the defendant, that a proper sentence is much closer to that that was imposed on Mr. Surratt.
And for those reasons, it is the sentence of the Court that' as to ... the three counts of conviction ... the defendant be committed to the custody of the Bureau of Prisons for a period of 52 months.
J.A. 3448-^9. Surratt had earlier been sentenced to 46 months.
We first note that the variance in this case reduced Hammad’s sentence from his recommended guidelines sentence by almost half. Accordingly, under the principles outlined in Moreland,- the district court must present compelling reasons for the variance. The judge indicated that she considered
what this defendant did, his background, and the needs for the sentence reflecting the seriousness of the offense to promote respect for law and also, however, to be just punishment, to serve as adequate deterrence to those in the public, to protect the public from further harm from the defendant....
J.A. 3448-49. However, the sentence reduction imposed focused almost exclusively on Surratt’s sentence. It was not, at heart, the necessary independent review of all of the § 3553(a) factors culminating in a sentence. It was, instead, an independent review of all of the § 3553(a) factors culminating in the conclusion that Hammad’s sentence should be similar to Surratt’s. This process provided “excessive weight,” Green,
Moreover, the facts do not support the district court’s conclusion that Hammad and Surratt were similarly situated. Sur-ratt was the second of the eleven defendants to plead guilty, only one day after the first defendant to do so. Surratt accepted responsibility and cooperated by providing information that led to a superseding indictment against his co-conspirators, and then testifying as a witness at trial. The district court gave Surratt a three-level sentence reduction for that acceptance of responsibility.
In contrast, Hammad gave false statements to investigators and destroyed evidence before trial, in addition to providing “incredible” testimony at trial. As a result, the district judge enhanced Ham-mad’s sentencing level by two for obstruction of justice. In other words, the difference between the recommended sentencing ranges for Surratt and Hammad reflect the fact that Surratt accepted responsibility and provided valuable assistance to the government, while Hammad never accepted responsibility and obstructed justice both before and during his trial.
We accordingly remand with instructions to re-sentence Hammad in accordance with the principles outlined in Green and Moreland.
V.
In conclusion, we hold that all of the convictions in this case were supported by sufficient evidence and were obtained without material error. We affirm those convictions and the sentences of Khan and Chapman. We further hold that Ham-mad’s sentence was an unreasonable variance from his recommended guideline range and remand for re-sentencing.
AFFIRMED IN PART; REMANDED IN PART
Notes
. Jihad is “a holy war undertaken as a sacred duty by Muslims.” Webster’s Unabridged Dictionary 1029 (2nd. ed.2001).
. Paintball is a game that simulates military combat in which players on one team try to eliminate players on the opposing team by shooting capsules of water-soluble dye at them from air powered rifles.
. Because the government proceeded against all seven defendants in a single thirty-two count indictment, not every count of the indictment applied to each defendant.
. Caliph moved separately for severance of his trial from Khan’s and, in the alternative, for a bench trial. His motion for severance was denied, but his motion for a bench trial was granted.
. Khan also challenges his conviction under Count One on an additional ground, arguing that, as applied to him, Count Eleven and Count One were identical offenses. A defendant cannot, of course, be punished for two crimes that constitute the "same offense." Rutledge v. United States,
. Khan also challenges his convictions under Counts Eleven, Twenty-Four, Twenty-Five, and Twenty-Seven, conspiracy to use firearms in relation to a crime of violence, in violation of
. Hammad also challenges his conviction under Count One for the same reasons as Chapman. We deny his challenge for the same reasons we deny Chapman’s. See, supra, Section II. B. 2. Finally, Hammad challenges his conviction under Count Eleven, conspiracy to use firearms in relation to a crime of violence in violation of
. The motion, which Chapman filed and Hammad joined, provided that
[alternatively, [defendants] request [] that, if this court denies [their] renewed severance motion, then the court permit [them] to waive trial by jury. UnderRule 23(a), Fed.R.Crim.P. , both the accused and the government must consent to the jury waiver. A bench trial would likely result in a much shorter trial and, most certainly, would afford the accused with the opportunity to receive a fair trial.
J.A. 220-21.
. The dissent argues that "[i]n applying Camps and Luskin, we must determine how many 'uses’ are represented by the acts a defendant performed with firearms.” Dissenting Op. at 35. This position may derive from the Camps language that “multiple, consecutive sentences under
Here, however, Khan was convicted of four predicate crimes of violence, not a "single predicate offense,” and we therefore need not count "uses.” See Camps,
Instead, in this circuit the four crime-of-violence convictions are considered separate predicate offenses provided that they do not violate the Double Jeopardy Clause. As we discuss below, the defendants concede that those underlying crimes of violence constitute separate offenses and do not implicate double jeopardy concerns for purposes of Blockbur-ger. "As long as the underlying crimes are not identical under the Blockburger analysis, then consecutive 924(c) sentences are permissible.” Luskin,
Because Khan’s four crime-of-violence convictions constitute separate predicate offenses, each may support a consecutive
. Under the Blockburger analysis, multiple statutory provisions describe identical offenses unless “each provision requires proof of a fact which the other does not.” Blockburger v. United States,
. Defendants point to United States v. Cappas,
. Defendants also argue that the mandatory sentences in this case violate separation of powers principles by placing sentencing decisions in the hands of the legislature and not the judiciary. This argument has been roundly rejected. See, e.g., Chapman v. United States,
. Even if it was error to allow Chapman to be cross-examined on the basis of the false exculpatory statements at issue, the error was harmless. The statements were relevant only to undermine Chapman's credibility. Yet, the district judge specifically noted that she found many reasons to question Chapman’s credibility, and that her conclusions about his lack of credibility "were not based solely or even to any significant degree on that particular false exculpatory statement.” J.A. 3271.
. We note that the district court sentenced Hammad on July, 29, 2005, without the benefit of our precedent in United States v. Green,
. Hammad’s sentence was still within the statutory range.
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the majority opinion except as to Part III.D, which affirms sentences imposed under
I.
The Superseding Indictment charges sixteen separate violations of
Khan received three convictions under
For these three convictions, Khan received mandatory consecutive sentences: 120 months for the first
II.
Unlike most circuits,
Our rule’s justification is apparent from examining our decisions in United States v. Camps and United States v. Luskin,
Judge Luttig, writing for the court, explained that for that case only, the court accepted the government’s concession that multiple firearms carried at one time can result in only one
In Camps, though each grouped “use” was tied to the underlying drug conspiracy, each “use” was directed toward a different objective of the conspiracy, occurred at distinctly different times, and had different effects on the conspiracy. Criminalizing only the December 1989 use would not account for the fact that the defendant made the criminal decision to use more guns later to further other objectives of the conspiracy. Three
Multiple sentences under
With respect to Khan, however, multiple
III.
In applying Camps and Luskin, we must determine how many “uses” are represented by the acts a defendant performed with firearms. See Camps,
Under the majority’s reasoning, no boundaries exist for
In determining how to draw the boundaries, courts examine a number of factors but primarily focus on the objectives, the effects, and the timing of the defendant’s conduct. See United States v. Finley,
Sustaining three
United States v. Anderson,