-
10-3916-cr United States v. Siddiqui UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 5th day of November, two thousand twelve. 5 6 PRESENT: RICHARD C. WESLEY, 7 SUSAN L. CARNEY, 8 Circuit Judges, 9 ROSLYNN R. MAUSKOPF, 10 District Judge.* 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 -v.- 10-3916-cr 18 19 AAFIA SIDDIQUI, 20 21 Defendant-Appellant.** 22 23 24 FOR APPELLANT: DAWN M. CARDI (Chad L. Edgar, on the 25 brief), Dawn M. Cardi & Associates, New 26 York, NY. 27 28 * The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation. ** The Clerk of the Court is respectfully directed to amend the caption to conform with the above. 1 FOR APPELLEE: JENNA M. DABBS, Assistant United States 2 Attorney (Christopher L. Lavigne, Jesse 3 M. Furman, Assistant United States 4 Attorneys, on the brief), for Preet 5 Bharara, United States Attorney for the 6 Southern District of New York, New York, 7 NY. 8 9 Appeal from the United States District Court for the 10 Southern District of New York (Berman, J.). 11 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 13 AND DECREED that the judgment of the United States District 14 Court for the Southern District of New York be AFFIRMED. 15 Appellant Aafia Siddiqui appeals from a judgment of the 16 United States District Court for the Southern District of 17 New York (Berman, J.), convicting her after a jury trial of 18 numerous offenses and sentencing her principally to 86 19 years’ imprisonment. In an accompanying published opinion, 20 we address five issues that Siddiqui raises on appeal. We 21 address the remaining issues herein. We assume the parties’ 22 familiarity with the underlying facts, the procedural 23 history, and the issues presented for review. 24 Siddiqui contends that reversal is warranted because 25 the district court admitted testimonial hearsay in violation 26 of Crawford v. Washington,
541 U.S. 36(2004), and that the 27 error was not harmless beyond a reasonable doubt. Her 28 argument follows several steps. She claims that the 2 1 testimony of two United States Army officers that they were 2 informed by certain Afghan officials that Siddiqui was in 3 possession of incendiary documents at the time of her arrest 4 violated Crawford. Siddiqui argues that without this 5 testimony, the government could not establish that Siddiqui 6 possessed the documents when she was arrested. And 7 according to Siddiqui, because the “real relevance” of the 8 documents is that Siddiqui possessed them in close proximity 9 (in time) to the shooting incident, the documents would have 10 been excluded under Federal Rule of Evidence 403 but for the 11 officers’ testimony. 12 Siddiqui’s Crawford challenge stumbles at its first 13 step. The Confrontation Clause bars only testimonial 14 hearsay used to establish the truth of the matter asserted. 15 See United States v. Paulino,
445 F.3d 211, 216-17 (2d Cir. 16 2006). A testimonial statement is “a solemn declaration or 17 affirmation made for the purpose of establishing or proving 18 some fact.” Michigan v. Bryant,
131 S.Ct. 1143, 1153 (2011) 19 (internal quotation marks and brackets omitted). Typical 20 testimonial statements include affidavits, depositions, and 21 grand jury testimony. See Crawford,
541 U.S. at 51-52. The 22 outer bounds of what constitutes a testimonial statement 23 remain unclear. But “the critical factor in identifying a 3 1 Confrontation Clause concern is the declarant’s awareness or 2 expectation that his or her statements may later be used at 3 trial.” United States v. Farhane,
634 F.3d 127, 163 (2d 4 Cir. 2011) (internal quotation marks omitted). 5 Here, we have little doubt that the Afghan officials 6 had no expectation or awareness that their statements 7 regarding what documents were found on Siddiqui when she was 8 arrested would later be used at a trial. When these 9 statements were made, Siddiqui had not yet fired upon the 10 American interview team. The United States’ interest in 11 Siddiqui was primarily military in nature. This is 12 underscored by the fact that the statements were conveyed to 13 American military personnel, not domestic law enforcement 14 officers. As such, there was no Crawford violation. See 15 Bryant,
131 S.Ct. at 1154. 16 We note also that the government did not offer these 17 statements to prove the truth of the matter asserted, but 18 rather to show their effect on the listeners–in other words, 19 to explain the United States' interest in interviewing 20 Siddiqui. The district court gave a limiting instruction to 21 this effect. Even if, as Siddiqui appears to contend, 22 allowing the testimony was impermissible under hearsay 23 rules, such an error would be harmless because (1) there was 4 1 other evidence that strongly suggested the documents were in 2 Siddiqui's possession at the time of her arrest; and (2) as 3 explained in the accompanying published opinion, admission 4 of the documents was harmless. 5 Next, in an argument that she herself characterizes as 6 advancing a “novel theor[y],” Siddiqui Reply Br. 3, Siddiqui 7 contends that the district court committed reversible error 8 in failing to give an instruction to the jury requiring them 9 to be unanimous as to the specific identity of Siddiqui’s 10 intended victims for the attempted murder counts. We 11 disagree. 12 The statutes at issue here prohibit the attempted 13 killing of “a national of the United States,”
18 U.S.C. § 142332, and “any officer or employee of the United States 15 while such officer or employee is engaged in or on the 16 account of the performance of official duties,”
18 U.S.C. § 171114. Because the statutes do not specify the elements of 18 “attempt to kill,” the elements are those required for 19 attempted murder at common law, which include an intent to 20 kill. See Braxton v. United States,
500 U.S. 344, 351 n.* 21 (1991). 22 Federal juries must be unanimous as to each element of 23 an offense. Richardson v. United States,
526 U.S. 813, 817 5 1 (1999). However, “a federal jury need not always decide 2 unanimously which of several possible sets of underlying 3 brute facts make up a particular element.”
Id.“[F]or 4 example, [where] an element of robbery is force or the 5 threat of force, some jurors might conclude that the 6 defendant used a knife to create the threat; others might 7 conclude he used a gun. But that disagreement–a 8 disagreement about means–would not matter as long as all 12 9 jurors unanimously concluded that the Government had proved 10 the necessary related element, namely, that the defendant 11 had threatened force.”
Id.Courts have not developed a 12 bright line test for distinguishing between an element of a 13 crime and a “brute fact.” Instead, they look to the 14 statutory language, tradition, and fairness concerns, such 15 as the likelihood that treating a fact as a means rather 16 than an element would allow “wide disagreement among the 17 jurors about just what the defendant did, or did not, do” 18 and the risk that the jury may convict on bad reputation 19 alone.
Id. at 819. 20 Here, the relevant statutory language—prohibiting the 21 attempted killing of “a national” and “any officer or 22 employee—suggests that Congress did not intend that the 23 government had to prove that the defendant had a particular 6 1 individual in mind as an element of the crime. Cf. United 2 States v. Talbert,
501 F.3d 449, 451 (5th Cir. 2007); United 3 States v. Verrecchia,
196 F.3d 294, 299 (1st Cir. 1999). 4 Viewing the identity of the intended victim as a “brute 5 fact” rather than as an element does not implicate fairness 6 concerns. It does not allow for wide juror disagreement as 7 to the defendant’s acts and does not create or aggravate the 8 risk that the jury would convict on bad reputation alone. 9 See Richardson,
526 U.S. at 819. 10 Indeed, a contrary interpretation would lead to absurd 11 results. For instance, under Siddiqui’s interpretation of 12 the statute, a defendant who fired one shot at a group of 13 United States employees or nationals with the intent to 14 indiscriminately kill one of them, but not an intent to kill 15 a particular individual, could not be convicted under the 16 statutes. For these reasons, we reject Siddiqui’s argument 17 that the district court was required to instruct the jury 18 that they had to be unanimous as to which United States 19 employee or national Siddiqui intended to kill. 20 The final three arguments that Siddiqui advances 21 concern sentencing. She contends that the district court 22 erred by refusing to “horizontally depart” in her criminal 23 history category and thereby to mitigate the effects of the 7 1 terrorism enhancement on her sentence. We will not review a 2 district court’s refusal to alter a criminal history 3 category unless the court “misapprehended the scope of its 4 authority to depart or the sentence was otherwise illegal.” 5 United States v. Valdez,
426 F.3d 178, 184 (2d Cir. 2005); 6 see United States v. Stinson,
465 F.3d 113, 114 (2d Cir. 7 2006). Because there is nothing in the record to suggest 8 that the district court did not appreciate or understand its 9 authority to depart or that the sentence was otherwise 10 illegal, we reject Siddiqui’s argument. 11 Next, in a somewhat unfocused argument, Siddiqui 12 contends that (1) “the district court erred procedurally by 13 not providing notice to defense counsel that recidivism was 14 going to be a predominant concern” at sentencing; and (2) 15 the district court imposed a “substantively unreasonable” 16 sentence by finding that without treatment Siddiqui was 17 likely to be a recidivist, and thereby drew conclusions that 18 were clearly the province of mental health professionals. 19 Siddiqui Reply Br. 49. Siddiqui’s claim of procedural error 20 predicated on lack of notice is without merit. Indeed, the 21 very Supreme Court case on which Siddiqui relies notes that 22 “[g]arden variety considerations of culpability, criminal 23 history, likelihood of re-offense, seriousness of the crime, 8 1 nature of the conduct, and so forth should not generally 2 come as a surprise to trial lawyers who have prepared for 3 sentencing.” Irizarry v. United States,
553 U.S. 708, 716 4 (2008) (internal quotation marks omitted) (emphasis added). 5 In addition, and more importantly, defense counsel, in their 6 sentencing submission to the district court, explicitly 7 addressed the issue, writing: "We understand that the Court, 8 in light of our continued emphasis upon Dr. Siddiqui's 9 serious mental illness and the role it played in her offense 10 conduct, has to speculate as to Dr. Siddiqui's future 11 dangerousness when addressing the issue as to what sentence 12 will protect the public from her." JA 3095. 13 Nor did the district court improperly invade the 14 province of mental health professionals when it commented on 15 the defendant’s likelihood of recidivism. Contrary to 16 Siddiqui’s contentions, the district court’s comments here 17 are a far cry from the comments to which this Court took 18 exception in United States v. Cossey,
632 F.3d 82, 88 (2d 19 Cir. 2011), and United States v. Dorvee,
616 F.3d 174, 183- 20 84 (2d Cir. 2010). Moreover, the district court relied on 21 other factors–such as the seriousness of the offense and the 22 need for general deterrence–in fashioning its sentence. 23 Under the circumstances of this case, a sentence of 86 24 years’ imprisonment is substantively reasonable. 9 1 Finally, we need not address Siddiqui’s claim that the 2 district court erred in finding that her conduct was 3 premeditated. Even without a finding of premeditation, 4 Siddiqui’s Guidelines range would have been life 5 imprisonment. As such, the district court characterized the 6 dispute regarding premeditation as academic before 7 addressing the issue. Any error in finding Siddiqui’s 8 conduct to be premeditated would be harmless. See United 9 States v. Jass,
569 F.3d 47, 68 (2d Cir. 2009). 10 After a thorough review of the record, we find 11 Siddiqui’s remaining arguments to be without merit. 12 For the foregoing reasons, and for the reasons stated 13 in the accompanying published opinion, the judgment of the 14 district court is hereby AFFIRMED. 15 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 10
Document Info
Docket Number: 10-3916-cr
Filed Date: 11/5/2012
Precedential Status: Non-Precedential
Modified Date: 4/18/2021