Wholly Terror

United States v. Awan, No. 07-4315-cr (2d Cir. June 14, 2010) (Pooler, Raggi, Livingston, CJJ)

On this government appeal, the circuit remanded for resentencing in light of the district court’s refusal to apply the terrorism enhancement, U.S.S.G. § 3A1.4.

Awan was convicted after a jury trial of various offenses in connection with his efforts to assist the Khalistan Commando Force (the “KCF”), a Sikh terrorist organization based in India, the ultimate aim of which is to compel the Indian government to create a separate Sikh state in the Punjab region. From 1998 to 2001 Awan served as a conduit for funds from U.S. supporters of the KCF to its leader. Later, while incarcerated at the MDC on credit card fraud charges, Awan tried to recruit an associate to go to Pakistan and receive explosives training at a KCF camp.

The terrorism enhancement applies if the defendant was convicted of a felony offense that “involved” or was “intended to promote” a federal crime of terrorism. But the district court declined to apply this section to any of the counts of conviction. It did not consider the “intended to promote” prong at all, and concluded that the evidence did not support the required “motivational element” - that the conduct was “calculated to influence or affect the conduct of government” - under the “involved” prong. Application of the enhancement would have yielded a sentence of 45 years' imprisonment, the statutory maximum. Instead, however, the district court sentenced Awan principally to 168 months.

On appeal, the circuit vacated and remanded for reconsideration because the district court erred in its consideration of both prongs of the enhancement.

A defendant’s offense “involves” a federal crime of terrorism when either his offense or its relevant conduct includes one of the federal crimes of terrorism enumerated in 18 U.S.C. § 2332b(g)(5)(B) and the conduct was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Here, the district court held that there was insufficient evidence that Awan’s conduct was so “calculated.” Rather, it found that Awan was motivated by “private purposes” - he enjoyed associating with terrorists and the prestige or potential influence it gave him.

To the circuit, however, this holding “addresse[d] the wrong question.” The section does not require proof of a defendant’s particular motive. “Calculation” is “concerned with the object that the actor seeks to accomplish"; it may “often serve motive, but they are not in fact identical.” A person can commit an offense calculated to influence or retaliate against government even if that is not his personal motivation. For example, he might murder a head of state knowing this will affect the conduct of government, even if his specific motive is to impress other terrorists. This conduct would still qualify under the “involved” prong of the terrorism enhancement. Thus, here, whatever Awan’s motive might have been, the terrorism enhancement would apply if he also had the intent specified by the Guideline. Because the district court misconstrued this aspect of the enhancement a remand was necessary.

The “intended to promote prong” is intended to cover situations different from the “involved” prong - cases where the defendant’s offense or relevant conduct does not include one of the enumerated federal crimes of terrorism. An offense is “intended to promote” a federal crime of terrorism when the offense is “intended to help bring about, encourage, or contribute to a federal crime of terrorism” listed in the statute, even if the defendant did not commit a listed offense and the offense was not itself “calculated” to achieve the goals identified in the “involved” prong. All that is required is that “the defendant has as one purpose of his substantive count of conviction or his relevant conduct the intent to promote a federal crime of terrorism.”

Here, the district court declined to consider this prong at all, concluding that since Awan was convicted of a listed offense there was no need to determine whether his conviction of a non-listed offense - money laundering - was intended to promote a federal crime of terrorism. This was error. The government “should have been permitted” to prove that, even if the crimes of conviction and their relevant conduct did not satisfy the calculation requirement under the “involved” prong, they were nevertheless “intended to promote a federal crime of terrorism committed or to be committed by other individuals.” Accordingly, for this reason as well the circuit remanded the case for resentencing.

How Not To Seek A Change Of Counsel

United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)

With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him. He pled guilty to conspiracy and attempted murder of a federal official. Although Salim had originally claimed that this was a botched escape attempt, at the Fatico hearing, his story changed. He testified that he abandoned the escape plan as unworkable; rather his goal was to take the guard’s keys, unlock the attorney-client visiting room, and attack his attorneys so that they would withdraw from the case. Salim had indeed, on several occasions, unsuccessfully sought a substitution of counsel from the district court.

The district court credited Salim’s story; it held that the assault was not an escape plan, but rather was a plan to force a change of counsel. In calculating Salim’s sentence, the court imposed a 3-level official victim enhancement, a 2-level obstruction of justice enhancement, and a 3-level restraint enhancement. It declined to impose the terrorism enhancement of U.S.S.G. § 3A1.4, however. Both sides appealed, and the court affirmed as to Salim’s claims, but reversed on the terrorism enhancement.

The Terrorism Enhancement

Guideline section 3A1.4 provides for a dramatic enhancement if the “offense is a felony that involved, or was intended to promote, a Federal crime of terrorism.” The guideline adopts the definition of “Federal crime of terrorism” contained in 18 U.S.C. § 2332(g)(5): a crime that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and that is a violation of certain enumerated statutes, including the one to which Salim pled guilty.

The district court concluded that the attack on the guard was “in furtherance of his intent to affect or influence [the district court’s] decision about substitution of counsel, and was in retaliation for judicial conduct denying [his] applications for substitution of counsel.” It refused to impose the enhancement, however, because it also held that the enhancement only applied to “conduct transcending national boundaries,” which did not occur here.

The circuit reversed. The district court distilled this extra requirement from 18 U.S.C. § 2332b(f), which gives the attorney general “primary investigative responsibility” for all “Federal crimes of terrorism” ... “[i]n addition to any other investigative authority with respect to violations of this title.” The lower court concluded that this section would be meaningless unless “Federal crime of terrorism” referred only to crimes involving transnational conduct because other sections of title 18 already give the attorney general “broad authority to investigate” intra-national crimes. Thus, the “addition[al]” authority referred to in § 2332b(f) must refer to transnational crimes.

The circuit disagreed, since no transnational conduct requirement is contained in § 2332(g)(5), the definition selected by the Sentencing Commission. Moreover, the district court’s construction of § 2332b(f) was itself erroneous. That section does not give the attorney general additional investigative “authority” for Federal crimes of terrorism, it gives him “primary investigatory responsibility” for them. And “[w]hatever” that phrase means, it is “plainly distinct” from “investigative authority” because “it envisions an authority expressly superior to that possessed by another actor.” It is “not meaningless” to give an officer “primary investigative responsibility over a certain category of crimes, even if he has pre-existing authority to investigate the same crimes.”

Salim also argued that the enhancement should not apply because the rulings of a judge do not constitute “government conduct” under § 2332(g)(5). The court found this claim “patently meritless.” A federal judge is a “government official,” and thus the “conduct of government” includes judicial rulings.

The Obstruction Enhancement

The district court found that Salim lied at the Fatico hearing about his motive for the attack when he testified that his intent was merely to force his attorneys to resign and not to influence the district court’s determination about whether to grant a substitution of counsel.

An obstruction enhancement based on this finding was proper. Salim’s main argument on appeal was that his motive for attempting to attack his attorneys was immaterial, because he pled guilty only to attacking the guard. But this relied on an “impermissibly narrow notion of materiality.” The issue under consideration was whether the terrorism enhancement applied, which in turn required the court to consider the purpose of the attack. For the obstruction enhancement, a statement is material if it “would tend to influence or affect the issue under determination.” Since motivation is clearly a factor in the terrorism enhancement, Salim’s statements were material.

They were also false. The district court did not clearly err in concluding Salim’s testimony that he believed that a change of counsel could be effectuated unilaterally by his counsel was a lie. Finally, the district court made adequate findings as to every element of the enhancement, including intent.

Official Victim

Salim challenged this enhancement on the ground that there was no evidence that the attack was motivated by the guard’s “official status.” But Salim clearly knew of the guard’s status, and testified that he was trying to obtain a key that the guard possessed only as a result of his official status. This satisfied the enhancement.

Restraint

Salim claimed that, since he did not restrain the guard until after he had been disabled by the stabbing, the restraint enhancement should not apply. The circuit disagreed: “Handcuffing a victim and locking him in a cell after a potentially lethal attack prevents a victim from seeking aid and thereby adds to the underlying offense of attempted murder.”