United States v. Sabir ( 2011 )

07-1968 (L)
United States v. Sabir
Nos. 07-1968-cr (L)
United States v. Sabir
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2008
(Argued: February 17, 2009 Decided: February 4, 2011)
Docket Nos. 07-1968-cr (L), 07-5531-cr (CON)
UNITED STATES OF AMERICA,
Appellee,
—v.—
ABDULRAHMAN FARHANE, also known as “Abderr Farhan,” and RAFIQ SABIR,
Defendants-Appellants.
Before:
WINTER, RAGGI, Circuit Judges, and DEARIE, Chief District Judge.1
In this appeal from a judgment of conviction entered after a jury trial in the United
States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge),
defendant Rafiq Sabir contends that (1) 18 U.S.C. § 2339B, under which he was convicted
for providing and conspiring to provide material support to a terrorist organization, is
1
Chief District Judge Raymond J. Dearie of the Eastern District of New York, sitting
by designation.
1
unconstitutionally vague and overbroad; (2) the trial evidence was insufficient to support his
conviction; (3) the government’s use of peremptory juror challenges exhibited racial bias in
violation of the Fourteenth Amendment; (4) erroneous evidentiary rulings violated his rights
to confrontation and/or a fair trial; (5) the district court abused its discretion in addressing
alleged juror misconduct; and (6) the government’s rebuttal summation deprived him of a fair
trial. We reject these arguments as without merit.
AFFIRMED.
Judge Raggi concurs in part in a separate opinion.
Judge Dearie dissents in part in a separate opinion.
EDWARD D. WILFORD (Natali J.H. Todd, on the brief), New York, New York,
for Defendant-Appellant.
JENNIFER G. RODGERS, Assistant United States Attorney (Karl Metzner,
Assistant United States Attorney, on the brief), on behalf of Michael J. Garcia,
United States Attorney for the Southern District of New York, New York,
New York, for Appellee.
REENA RAGGI, Circuit Judge:
I. Background ........................................................................................................... [5]
A. 2001: The Initial FBI Investigation into Co-Defendant
Tarik Shah ................................................................................................... [5]
B. 2004: Shah Offers to Support al Qaeda ..................................................... [6]
C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and
Attempt To Provide Material Support .......................................................... [7]
D. Prosecution and Conviction ........................................................................ [8]
2
II. Discussion ............................................................................................................ [10]
A. 18 U.S.C. § 2339B Is Not Unconstitutionally Vague as
Applied to Sabir’s Case .............................................................................. [10]
1. The Statutory Framework .............................................................. [10]
2. Sabir’s Vagueness Claim ............................................................... [13]
a. Sabir Fails to Demonstrate Facial Vagueness
or Overbreadth ..................................................................... [13]
b. Sabir Fails To Demonstrate that § 2339B Is
Unconstitutionally Vague as Applied to his
Case ...................................................................................... [17]
(1) Sabir’s Vagueness Claim Is Properly
Reviewed as Applied ................................................ [17]
(2) The Standards for As-Applied Review .................... [19]
(3) Sabir’s Vagueness Challenge to the
Statutory Proscriptions Fails ..................................... [20]
(4) The “Medicine” Exception Does Not Render
§ 2339B Unconstitutionally Vague as Applied
to Sabir ...................................................................... [25]
B. The Trial Evidence Was Sufficient To Support Sabir’s Conviction ......... [29]
1. Count One: Conspiracy ................................................................. [29]
2. Count Two: Attempt ...................................................................... [31]
a. Intent .................................................................................. [31]
b. Substantial Step .................................................................. [34]
(1) The “Substantial Step” Requirement Expands
Attempt Beyond the Common Law .......................... [34]
(2) Identifying a Substantial Step by Reference
to the Crime Being Attempted .................................. [35]
(3) The Evidence Manifests a Substantial Step
Towards the Provision of Material Support
in the Form of Personnel ........................................... [38]
(4) The Dissent’s Mistaken View of the
Substantial Step Requirement ................................... [40]
(a) Sabir Did More Than Express a
Radical Idea When He Produced
Himself as a Doctor Sworn To Work
Under the Direction of al Qaeda .................... [40]
(b) The Provision of Personnel and the
Subsequent Provision of Expert Services
3
by Such Personnel Are Distinct Forms
of Material Support ........................................ [42]
(c) Upholding Sabir’s Attempt Conviction
Raises No Double Jeopardy Concerns .......... [47]
(d) No Government Conduct Precluded
a Jury Finding of a Substantial Step .............. [49]
C. The District Court Reasonably Rejected Sabir’s Batson Challenge ......... [50]
1. Prospective Juror #5 ...................................................................... [53]
2. Prospective Juror #26 .................................................................... [54]
3. Prospective Juror #27 ..................................................................... [56]
D. Sabir’s Evidentiary Challenges Are Uniformly Without Merit ................ [57]
1. Expert Witness Testimony .............................................................. [58]
a. Kohlmann’s Testimony Satisfied the Enumerated
Requirements of Rule 702 ................................................... [59]
b. Kohlmann’s Testimony Was Helpful to the Jury ............... [60]
c. Kohlmann’s Testimony Was Relevant ............................... [61]
d. Kohlmann’s Testimony Did Not Reach Beyond
the Government’s Rule 16 Proffer ....................................... [62]
2. Co-Conspirator Statements ............................................................ [63]
a. Shah’s Recorded Conversations with the Informant
and the Undercover Were Admissible Under
Fed. R. Evid. 801(d)(2)(E) ................................................... [63]
b. The Admission of Shah’s Statements Did Not
Violate Sabir’s Right to Confrontation ................................ [67]
3. Prior Inconsistent Statement .......................................................... [67]
4. State-of-Mind Evidence ................................................................. [69]
5. Rule 403 Objections ...................................................................... [71]
a. The Shareef Materials ........................................................ [71]
b. The Poughkeepsie Mosque Incident .................................. [72]
c. Mujahideen Activities in Bosnia ........................................ [73]
E. Summation Issues ...................................................................................... [73]
F. Juror Misconduct ....................................................................................... [78]
III. Conclusion ........................................................................................................... [83]
Defendant Rafiq Sabir, whose birth name is Rene Wright, is a United States citizen
4
and licensed physician who, in May 2005, swore an oath of allegiance to al Qaeda and
promised to be on call to treat wounded members of that terrorist organization in Saudi
Arabia. Convicted after a jury trial in the United States District Court for the Southern
District of New York (Loretta A. Preska, Chief Judge) of conspiring to provide and actually
providing or attempting to provide material support to a terrorist organization in violation of
18 U.S.C. § 2339B, and sentenced to a 300-month term of incarceration, Sabir now
challenges his conviction on various grounds. Specifically, he contends that (1) § 2339B is
unconstitutionally vague and overbroad, (2) the trial evidence was insufficient to support his
conviction, (3) the prosecution’s peremptory jury challenges exhibited racial bias, (4)
evidentiary rulings deprived him of the right of confrontation and/or a fair trial, (5) the
district court abused its discretion in addressing alleged juror misconduct, and (6) the
prosecution’s rebuttal summation deprived him of a fair trial. For the reasons explained in
this opinion, we conclude that these arguments lack merit. Accordingly, we affirm Sabir’s
judgment of conviction.2
I. Background
A. 2001: The Initial FBI Investigation into Co-Defendant Tarik Shah
Defendant Rafiq Sabir is a New York licensed physician, trained at Columbia
University, who specializes in emergency medicine. In 2001, the Federal Bureau of
Investigation began investigating Sabir’s longtime friend Tarik Shah for the possible transfer
2
In a separate order issued today, we dismiss the appeal of Sabir’s co-defendant
Abdulrahman Farhane.
5
of money to insurgents in Afghanistan. As part of that investigation, an FBI confidential
informant known as “Saeed” cultivated a relationship with Shah, in the course of which Shah
was recorded speaking openly about his commitment to jihad (holy war) in order to establish
Sharia (Islamic law) and about his wish to provide “deadly and dangerous” martial arts
training to mujahideen (jihad warriors). Gov’t Exh. (“GX”) 802T at 1-2; GX 803T at 2-4;
GX 804T at 3; Trial Tr. at 590-91, 601-03.3 During these conversations, Shah repeatedly
identified Sabir as his “partner.” GX 801T at 1; GX 807T at 3; see Trial Tr. at 903-04.
B. 2004: Shah Offers to Support al Qaeda
On March 3, 2004, Saeed and Shah traveled to Plattsburgh, New York, where Saeed
introduced Shah to Ali Soufan, an undercover FBI agent posing as a recruiter for al Qaeda.4
In a series of recorded meetings with Agent Soufan, Shah detailed his martial arts expertise
3
Trial evidence indicated that beginning in the mid-1990s, Shah in fact taught martial
arts classes at numerous locations, including two mosques in suburban Maryland and another
two in upstate New York, as well as at his own martial arts school in New York City.
Participants in these classes testified that Shah taught them the use of deadly weapons and
lethal fighting techniques, while exhorting them to embrace jihad.
4
Al Qaeda is the most notorious terrorist group presently pursuing jihad against the
United States. In February 1998, its leaders, including Osama bin Laden and Ayman al
Zawahiri, issued an infamous fatwa (religious decree) pronouncing it the individual duty of
every Muslim to kill Americans and their allies – whether civilian or military – in any
country where that could be done. For a detailed discussion of this fatwa and al Qaeda’s
terrorist activities up to 2004 – including the 1998 bombings of American embassies in
Kenya and Tanzania, which killed 224 people; the October 2000 bombing of the USS Cole,
which took 17 lives; and the September 11, 2001 airplane attacks on the World Trade Center
and the Pentagon, which killed 2,973 persons – see The National Commission on Terrorist
Attacks Upon the United States, The 9/11 Commission Report (2004). See also United
States v. Moussaoui, 591 F.3d 263, 273-74 (4th Cir. 2010); In re Terrorist Bombings of U.S.
Embassies in East Africa, 552 F.3d 93, 103-05 (2d Cir. 2008).
6
and offered to travel abroad to train al Qaeda combatants. Shah also told Soufan about Sabir,
“an emergency room doctor” who had been his “trusted friend[]” for more than 25 years. GX
902T at 2, 7. Explaining that he knew Sabir’s “heart,” Shah proposed that the two men join
al Qaeda as “a pair, me and a doctor.” Id. at 3, 23. At a subsequent meeting with Saeed,
Shah reported that he had spoken in person with Sabir about this plan.
Shah and Agent Soufan next met in Orlando, Florida, in April 2004, at which time
Shah agreed to prepare a syllabus for a martial arts training course as well as a training video.
Shah also questioned Soufan at this meeting about al Qaeda suicide bombings and asked
whether he could receive, as well as provide, terrorist training.
C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide
Material Support
For most of the time between May 2004 and May 2005, Sabir was out of the United
States, working at a Saudi military hospital in Riyadh. On May 20, 2005, during a visit to
New York, Sabir met with Saeed and Agent Soufan at Shah’s Bronx apartment. Sabir told
Soufan that he would soon be returning to Riyadh. He expressed interest in meeting with
mujahideen operating in Saudi Arabia and agreed to provide medical assistance to any who
were wounded. See GX 906T at 15, 87. He suggested that he was ideally situated to provide
such assistance because he would have a car in Riyadh and “carte blanche” to move freely
about the city. Id. at 67.
To ensure that Shah and Sabir were, in fact, knowingly proffering support for
terrorism, Soufan stated that the purpose of “our war, . . . our jihad” is to “[e]xpel the infidels
7
from the Arabian peninsula,” id. at 22, and he repeatedly identified “Sheikh Osama” (in
context a clear reference to Osama bin Laden) as the leader of that effort, see, e.g., id. at 31,
34, 59, 87, 98-99. Shah quickly agreed to the need for war to “[e]xpel the Jews and the
Christians from the Arabian Peninsula,” id. at 22, while Sabir observed that those fighting
such a war were “striving in the way of Allah” and “most deserving” of his help, id. at 66.
To permit mujahideen needing medical assistance to contact him in Riyadh, Sabir
provided Soufan with his personal and work telephone numbers. See id. at 40, 83. When
Shah and Soufan noted that writing down this contact information might create a security
risk, Sabir encoded the numbers using a code provided by Soufan. See id. at 49-53.
Sabir and Shah then participated in bayat, a ritual in which each swore an oath of
allegiance to al Qaeda, promising to serve as a “soldier of Islam” and to protect “brothers on
the path of Jihad” and “the path of al Qaeda.” Id. at 106-08, 114-16. The men further swore
obedience to “the guardians of the pledge,” whom Soufan expressly identified as “Sheikh
Osama,” i.e., Osama bin Laden, and his second in command, “Doctor Ayman Zawahiri.” Id.
at 98, 108-10, 115.
D. Prosecution and Conviction
Shah and Sabir were arrested on May 28, 2005, and thereafter indicted in the Southern
District of New York on charges that between October 2003 and May 2005, they (1)
conspired to provide material support or resources to the terrorist organization al Qaeda, see
18 U.S.C. § 2339B; and (2) provided or attempted to provide such support, see id. §§ 2339B,
2. See Indictment ¶¶ 1-2, United States v. Shah, S4 05 Cr. 673 (LAP) (S.D.N.Y. filed June
8
27, 2005).5 The two counts used identical language to describe three types of material
support that defendants provided, attempted to provide, or conspired to provide:
(i) one or more individuals (including themselves) to work under al Qaeda’s
direction and control and to organize, manage, supervise, and otherwise direct
the operation of al Qaeda, (ii) instruction and teaching designed to impart a
special skill to further the illegal objectives of al Qaeda, and (iii) advice and
assistance derived from scientific, technical and other specialized knowledge
to further the illegal objectives of al Qaeda.
Id. ¶¶ 1-2. The two counts further alleged that Shah would provide “martial arts training and
instruction for jihadists,” while Sabir would provide “medical support to wounded jihadists,”
both defendants “knowing that al Qaeda had engaged and engages in terrorist activity” and
“terrorism.” Id.
After Shah pleaded guilty on April 4, 2007, to Count One of the indictment, trial
against Sabir commenced on April 24. On May 21, 2007, the jury found Sabir guilty on both
the conspiratorial and substantive charges against him, and, on November 28, 2007, the
district court sentenced him principally to 300 months’ incarceration. This appeal followed.
II. Discussion
A. 18 U.S.C. § 2339B Is Not Unconstitutionally Vague as Applied to Sabir’s
Case
In raising a constitutional challenge to his conviction, Sabir relies on the same
argument he urged in the district court in unsuccessfully seeking dismissal of his indictment:
5
Shah and Sabir were not named in Counts Three and Four of the indictment,
charging Mahmud Faruq Brent with conspiring to provide and providing material support in
the form of personnel to the terrorist organization Lashkar-e-Taiba. See Indictment ¶¶ 3-4.
We do not discuss these charges further in this opinion.
9
that 18 U.S.C. § 2339B is void for vagueness and overbroad in defining the conduct
proscribed. See United States v. Shah, 474 F. Supp. 2d 492, 496-500 (S.D.N.Y. 2007).
Upon de novo review, see Arriaga v. Mukasey, 521 F.3d 219, 222 (2d Cir. 2008), we
conclude that the argument is without merit as § 2339B presents no overbreadth concerns and
is not unconstitutionally vague as applied to Sabir’s conduct.
1. The Statutory Framework
Preliminary to explaining our reasons for rejecting Sabir’s vagueness challenge, we
review the relevant statutory framework. Title 18 U.S.C. § 2339B(a)(1) imposes criminal
liability on anyone who “knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so.”6 The statute expressly conditions
liability on a person having knowledge that the relevant organization is a “designated
terrorist organization” or “has engaged or engages in terrorist activity” or “terrorism”
consistent with various specified provisions of law. 18 U.S.C. § 2339B(a)(1); see Holder v.
6
Section 2339B, entitled “Providing material support or resources to designated
foreign terrorist organizations” was enacted as part of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, § 303(a), 110 Stat. 1214, 1250
(1996), to supplement 18 U.S.C. § 2339A, entitled “Providing material support to terrorists,”
which was enacted two years earlier as part of the Violent Crime Control and Law
Enforcement Act, Pub. L. No. 103-322, § 12005(a), 108 Stat. 1796, 2022 (1994). These
statutory provisions have been substantively amended twice: first, in response to al Qaeda’s
September 11, 2001 attacks on the United States, by the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA
PATRIOT Act”), Pub. L. No. 107-56, § 810(d), 115 Stat. 272, 380 (2001); and second, by
the Intelligence Reform and Terrorism Prevention Act (“IRTPA”), Pub. L. No. 108-458,
§ 6603(c), 118 Stat. 3638, 3762-63 (2004). As Sabir stands convicted under the latest
iteration of the statute, we cite thereto in this opinion.
10
Humanitarian Law Project, 130 S. Ct. 2705, 2709 (2010) (holding that “knowledge about the
organization’s connection to terrorism, not specific intent to further the organization’s
terrorist activities,” is mental state required to prove violation of § 2339B).7
In identifying the “material support or resources” whose provision to a designated
terrorist organization is proscribed, § 2339B references the definition of that term “in section
2339A (including the definitions of ‘training’ and ‘expert advice or assistance’ in that
section).” Id. § 2339B(g)(4). Section 2339A states, in pertinent part:
(1) the term “material support or resources” means any property, tangible or
intangible, or service, including currency or monetary instruments or financial
securities, financial services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications equipment,
7
Al Qaeda’s designation as a terrorist organization pursuant to Section 219 of the
Immigration and Nationality Act, 8 U.S.C. § 1189, is undisputed. See 64 Fed. Reg. 55,112(1999); 66 Fed. Reg. 51,088 (2001); 68 Fed. Reg. 56,860 (2003). The United States’
response to al Qaeda has not, however, been limited to such designation. Two successive
administrations have indicated that the nation is at “war” with al Qaeda. See Press Release
of Remarks by President Obama on Strengthening Intelligence and Aviation Security, Jan.
7, 2010 (“We are at war. We are at war against al Qaeda, a far-reaching network of violence
and hatred that attacked us on 9/11, that killed nearly 3,000 innocent people, and that is
plotting to strike us again. And we will do whatever it takes to defeat them.”); Eric
Lichtblau, Bush Seeks to Affirm a Continuing War on Terror, N.Y. Times, Aug. 30, 2008,
at A10 (quoting administration proposal that Congress “acknowledge again and explicitly
that this nation remains engaged in an armed conflict with Al Qaeda . . . and associated
organizations, who have already proclaimed themselves at war with us and who are dedicated
to the slaughter of Americans”). The executive locates support for its actions in Congress’s
September 18, 2001 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat.
224 (2001). See, e.g., Harold Hongju Koh, Legal Adviser, U.S. Department of State,
Address to the Annual Meeting of the American Society of International Law: The Obama
Administration and International Law (Mar. 25, 2010), available at
http://www.state.gov/s/l/releases/remarks/139119.htm (explaining that in light of al Qaeda’s
“horrific” attacks on the United States, the United States is “in an armed conflict with al
Qaeda” that is justified by both international and domestic law).
11
facilities, weapons, lethal substances, explosives, personnel (1 or more
individuals who may be or include oneself), and transportation, except
medicine or religious materials;
(2) the term “training” means instruction or teaching designed to impart a
specific skill, as opposed to general knowledge; and
(3) the term “expert advice or assistance” means advice or assistance derived
from scientific, technical or other specialized knowledge.
Id. § 2339A(b).8
With respect to the provision of “personnel,” § 2339B limits liability to persons who
have “knowingly provided, attempted to provide, or conspired to provide a foreign terrorist
organization with 1 or more individuals (who may be or include himself) to work under that
terrorist organization’s direction or control or to organize, manage, supervise, or otherwise
direct the operation of that organization.” Id. § 2339B(h). The statute states that
“[i]ndividuals who act entirely independently of the foreign terrorist organization to advance
its goals or objectives shall not be considered to be working under the foreign terrorist
organization’s direction and control.” Id.; see Holder v. Humanitarian Law Project, 130 S.
Ct. at 2728 (emphasizing that statute “avoid[s] any restriction on independent advocacy, or
indeed any activities not directed to, coordinated with, or controlled by foreign terrorist
groups”).
2. Sabir’s Vagueness Claim
8
Title 18 U.S.C. § 2339B(i), added by IRTPA, precludes any construction or
application of § 2339B that abridges the exercise of First Amendment rights. This
necessarily extends to those parts of § 2339A incorporated into § 2339B, such as these
definitions.
12
For a conviction to comport with the constitutional mandate of due process, see U.S.
Const. amend. V, the penal statute at issue must define the criminal offense (1) “with
sufficient definiteness that ordinary people can understand what conduct is prohibited” and
(2) “in a manner that does not encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983); accord Holder v. Humanitarian Law Project,
130 S. Ct. at 2718; United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003) (en banc).
Sabir argues that his conviction violates both prongs of this void-for-vagueness doctrine
because § 2339B’s prohibitions against providing “personnel,” “training,” and “expert advice
and assistance” to terrorist organizations are overbroad and afford insufficient notice to
persons who may traduce those prohibitions and inadequate standards for authorities who
must enforce them. He contends further that the statutory exception for “medicine” is too
vague to have put him on notice that it did not encompass his consultative services as a
physician.
a. Sabir Fails to Demonstrate Facial Vagueness or Overbreadth
Sabir contends that § 2339B is unconstitutionally vague both on its face and as applied
to his case. In support of his facial challenge, Sabir relies primarily on the overbreadth
doctrine. This confuses the issue. As the Supreme Court recently observed, vagueness and
overbreadth are distinct concerns, the first implicating the Due Process Clause and the latter
the First Amendment. See Holder v. Humanitarian Law Project, 130 S. Ct. at 2719. A
statute whose application is clear is not rendered unconstitutionally vague because it
proscribes expression protected by the First Amendment. Id. In any event, Sabir fails to
13
state an overbreadth claim.
A law is unconstitutionally overbroad if it “punishes a substantial amount of protected
free speech, judged in relation to [its] plainly legitimate sweep.” Virginia v. Hicks, 539 U.S.
113, 118-19 (2003) (internal quotation marks omitted). A finding of overbreadth invalidates
all enforcement of a challenged law, unless it can be saved by a limiting construction. Id. at
119. Mindful that such relief is “strong medicine,” the law rigorously enforces the burden
on the challenging party to demonstrate “substantial” infringement of speech. United States
v. Williams, 553 U.S. 285, 292 (2008) (emphasis in original). Sabir’s recitation of the
applicable legal standards and his conclusory declaration that § 2339B is overbroad do not
come close to carrying this burden.
As the Supreme Court stated in rejecting a First Amendment challenge to § 2339B,
the statute leaves persons free to “say anything they wish on any topic,” including terrorism.
Holder v. Humanitarian Law Project, 130 S. Ct. at 2722-23. It does not prohibit independent
advocacy of any kind. See id. at 2723, 2728. It does not prohibit or punish mere
membership in or association with terrorist organizations. See id. at 2723, 2730. Thus, it
does not seek
to suppress ideas or opinions in the form of ‘pure political speech.’ Rather, [it]
prohibit[s] ‘material support,’ which most often does not take the form of
speech at all. And when it does, the statute is carefully drawn to cover only a
narrow category of speech to, under the direction of, or in coordination with
foreign groups that the speaker knows to be terrorist organizations.
Id. at 2723. Such circumstances do not evidence overbreadth.
To the extent Sabir asserts that § 2339B is overbroad in limiting “a doctor’s right to
14
practice medicine,” Appellant’s Br. at 14-15, he cites no authority locating such a right
within the Constitution, much less in the First Amendment. The Supreme Court has long
held that “there is no right to practice medicine which is not subordinate to the police power
of the states . . . and also to the power of Congress to make laws necessary and proper” to the
exercise of its constitutional authority. Lambert v. Yellowley, 272 U.S. 581, 596 (1926)
(Brandeis, J.) (rejecting physician’s claim that, despite powers conferred on Congress by
Eighteenth Amendment, he held constitutional right to prescribe such medicines as he
deemed best to effect patient’s cure); see also Conn v. Gabbert, 526 U.S. 286, 291-92 (1999)
(observing that there is no due process right to practice one’s profession free of any restraints
and that due process is violated only by “complete prohibition of the right to engage in a
calling”); Dent v. West Virginia, 129 U.S. 114, 122 (1889) (“[T]here is no arbitrary
deprivation of [the right to practice medicine] where its exercise is not permitted because of
a failure to comply with conditions imposed by the state for the protection of society.”).
With particular reference to the First Amendment, a plurality of the Court in Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), rejected a First
Amendment challenge to a state law requiring physicians to provide patients with specific
information about certain medical risks, observing that “[t]o be sure, the physicians’ First
Amendment rights not to speak are implicated, . . . but only as part of the practice of
medicine, subject to reasonable licensing and regulation by the State,” id. at 884 (plurality
opinion). Because Sabir thus cannot claim a “right” to provide medical treatment for
terrorists that is not “subordinate to . . . the power of Congress to make laws necessary and
15
proper” to the nation’s defense, Lambert v. Yellowley, 272 U.S. at 596; see U.S. Const. art.
I, § 8, he cannot mount a claim that § 2339B is unconstitutionally overbroad.
Nor can Sabir demonstrate overbreadth by faulting § 2339B for not requiring proof
of his “specific intent to further . . . terrorist activities.” Appellant’s Br. at 24; see Holder v.
Humanitarian Law Project, 130 S. Ct. at 2718 (construing § 2339B not to require proof of
such intent). The argument is grounded not in the First Amendment but in the Fifth,
specifically, in the due process requirement that any conviction be supported by evidence of
personal guilt. See Scales v. United States, 367 U.S. 203, 224-25 (1961). Such a due process
concern can arise when criminal liability is premised on mere membership in an organization.
See id. at 205-06, 224-28 (rejecting Fifth Amendment challenge to Smith Act, 18 U.S.C.
§ 2385 (prohibiting membership in organization advocating overthrow of United States
government by force or violence), because conviction required proof of knowing and active
membership in organization and intent to contribute to success of specifically illegal
activities).
No such concern arises with respect to § 2339B, however, because, as we have
already observed, that statute does not prohibit simple membership in a terrorist organization.
Rather, the statute prohibits the knowing provision of material support to a known terrorist
organization. Proof of such provision (whether actual, attempted, or conspiratorial) together
with the dual knowledge elements of the statute is sufficient to satisfy the personal guilt
requirement of due process.
In sum, Sabir fails to state a claim – much less demonstrate – that § 2339B is either
16
facially vague in violation of due process or overbroad in violation of the First Amendment.
b. Sabir Fails To Demonstrate that § 2339B Is Unconstitutionally
Vague as Applied to his Case
(1) Sabir’s Vagueness Claim Is Properly Reviewed as
Applied
In the absence of First Amendment concerns, courts generally view vagueness
challenges to a statute as applied to the defendant’s case. See Chapman v. United States, 500
U.S. 453, 467 (1991) (“First Amendment freedoms are not infringed by [the statute at issue],
so the vagueness claim must be evaluated as the statute is applied.”); accord United States
v. Williams, 553 U.S. at 304; United States v. Rybicki, 354 F.3d at 129-30 (collecting
cases).9 This preference for as-applied review is “‘[e]mbedded in the traditional rules
governing constitutional adjudication,’” notably, in “‘the principle that a person to whom a
statute may constitutionally be applied will not be heard to challenge that statute on the
ground that it may conceivably be applied unconstitutionally to others, in other situations not
before the Court.’” Parker v. Levy, 417 U.S. 733, 759 (1974) (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 610 (1973)). That principle, grounded in the separation of powers,
serves the jurisprudential maxim that “as between two possible interpretations of a statute,
by one of which it would be unconstitutional and by the other valid,” a court’s “plain duty
is to adopt that which will save the Act” enacted by Congress. Blodgett v. Holden, 275 U.S.
9In Holder v. Humanitarian Law Project, the Supreme Court expressed a preference
for as-applied review even where First Amendment rights are implicated. See 130 S. Ct. at
2719.
17
142, 148 (1927) (Holmes, J.); see Rust v. Sullivan, 500 U.S. 173, 190 (1991) (noting courts’
“categorical” duty to seek “every reasonable construction . . . to save a statute from
unconstitutionality” (emphasis in original; internal quotation marks omitted)).
To the extent the Supreme Court has suggested that a facial challenge may be
maintained against a statute that does not reach conduct protected by the First Amendment,
the identified test is, in fact, only a variation on as-applied analysis, requiring the defendant
to show “that the law is impermissibly vague in all of its applications.” Village of Hoffman
Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 497 (1982); accord United States v.
Salerno, 481 U.S. 739, 745 (1987) (observing that defendant mounting facial challenge bears
heavy burden because he “must establish that no set of circumstances exists under which the
Act would be valid”). In practice, the Hoffman Estates/Salerno rule warrants hypothetical
analysis of “all applications” only in cases of pre-enforcement facial vagueness challenges.
See, e.g., Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681, 684-86 (2d Cir.
1996). Where, as here, a defendant has already been convicted for specific conduct under
the challenged law, Hoffman Estates itself instructs a court confronting a facial challenge to
“examine the complainant’s conduct before analyzing other hypothetical applications.”
Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. at 495.
Accordingly, our review of Sabir’s vagueness challenge focuses on the application of
§ 2339B to the facts of his case.10
10
City of Chicago v. Morales, 527 U.S. 41 (1999) (declaring local loitering ordinance
unconstitutionally vague on its face), cited by Sabir, warrants no different approach to his
18
(2) The Standards for As-Applied Review
On as-applied review of the “notice” requirement of due process, courts ask whether
the challenged “statute, as written, provides notice sufficient to alert ‘ordinary people [as to]
what conduct is prohibited.’” Arriaga v. Mukasey, 521 F.3d at 224 (quoting Kolender v.
Lawson, 461 U.S. at 357). This test does not demand “‘meticulous specificity’” in the
identification of proscribed conduct. Id. (quoting Grayned v. City of Rockford, 408 U.S.
104, 110 (1972) (noting that such standard would come at cost of “flexibility and reasonable
breadth” (internal quotation marks omitted))). Rather, it requires only that the statutory
language “‘conveys sufficiently definite warning as to the proscribed conduct when measured
by common understanding and practices.’” Id. (quoting Jordan v. DeGeorge, 341 U.S. 223,
231-32 (1951)).
Similarly, with respect to the due process concern of arbitrary enforcement, a statute
certainly will not be deemed unconstitutionally vague if “‘as a general matter,’” it “‘provides
sufficiently clear standards to eliminate’” such a risk. Id. (quoting Farrell v. Burke, 449 F.3d
470, 494 (2d Cir. 2006)). But even “‘in the absence of such standards,’” a statute will
survive an as-applied vagueness challenge if “‘the conduct at issue falls within the core of
facial vagueness claim. Morales is distinguishable from this case in that the ordinance there
at issue (1) reached a substantial amount of innocent conduct, (2) lacked a mens rea
requirement to mitigate overbreadth concerns, and (3) had been interpreted by the state
supreme court in a way that precluded the Supreme Court from adopting a narrow
construction avoiding constitutional concerns. See id. at 60-64; see also United States v.
Rybicki, 354 F.3d at 150-52 (Raggi, J., concurring) (discussing circumstances in Morales that
precluded Hoffman Estates/Salerno analysis). Because none of these concerns is here
present, we rely on traditional as-applied review in considering Sabir’s vagueness challenge.
19
the statute’s prohibition, so that the enforcement before the court was not the result of the
unfettered latitude that law enforcement officers and factfinders might have in other,
hypothetical applications of the statute.’” Id. (quoting Farrell v. Burke, 449 F.3d at 494).
Applying these principles to this case, we identify no unconstitutional vagueness in
§ 2339B as applied to Sabir’s case.
(3) Sabir’s Vagueness Challenge to the Statutory
Proscriptions Fails
Sabir contends that the statutory terms at issue – “training,” “personnel,” and “expert
assistance and advice” – are inherently too vague to provide the notice and direction required
by due process. Such a general complaint is now foreclosed by Holder v. Humanitarian Law
Project. The Supreme Court there observed that these terms did not require the sort of
“untethered, subjective judgments” that had compelled it to strike down statutes tying
criminal culpability to vague concepts such as “annoying” or “indecent” conduct. 130 S. Ct.
at 2720. The Court identified further protection against vagueness in Congress’s addition of
“narrowing definitions” for these terms, which “increased the[ir] clarity,” as well as in the
knowledge element required for a § 2339B conviction. Id.
Sabir’s more specific challenges to the application of these terms to the particular facts
of his case are equally meritless.
To the extent Sabir was convicted of conspiring with Shah to provide “training” – i.e.,
“instruction or teaching designed to impart a specific skill, as opposed to general
knowledge,” 18 U.S.C. § 2339A(b)(2) – to a known terrorist organization, a person of
20
“ordinary intelligence,” Grayned v. City of Rockford, 408 U.S. at 108, would require nothing
more than “common understanding,” Jordan v. DeGeorge, 341 U.S. at 232, to recognize that
this prohibition plainly encompassed “martial arts training and instruction for jihadists”
serving al Qaeda, Indictment ¶¶ 1-2. In Holder v. Humanitarian Law Project, the Supreme
Court held that “[a] person of ordinary intelligence would understand that instruction on
resolving disputes through international law falls within the statute’s definition of ‘training’
because it imparts a ‘specific skill,’ not ‘general knowledge.’” 130 S. Ct. at 2720. That
conclusion is even more apparent here, where the trial evidence showed that the martial arts
training Shah proposed to provide was specific and deadly and hardly a matter of general
knowledge. See, e.g., GX 814T at 3-4 (recording Shah’s explanation of how to kill a man
by ripping out his throat). Moreover, al Qaeda’s history for using murderous terrorism in an
attempt to intimidate civilian populations and governments, see 18 U.S.C. § 2331 (defining
terrorism) – particularly American civilians and the United States government – is so well
known that no reasonable person could doubt that training al Qaeda members in martial arts
is precisely the sort of material support proscribed by § 2339B, see Arriaga v. Mukasey, 521
F.3d at 224; United States v. Rybicki, 354 F.3d at 129.
We likewise reject Sabir’s vagueness challenge to the term “personnel” as applied to
his case. The provision of personnel is prohibited by § 2339B only when an individual
knowingly provides, attempts to provide, or conspires to provide a foreign terrorist
organization with one or more individuals, including himself, “to work under that terrorist
organization’s direction or control or to organize, manage, supervise, or otherwise direct [its]
21
operation.” 18 U.S.C. § 2339B(h). Quite apart from Shah’s offer to act as a martial arts
trainer for al Qaeda in that organization’s pursuit of jihad, Sabir’s offer to serve as an on-call
doctor for the organization, standing ready to treat wounded mujahideen in Saudi Arabia,
falls squarely within the core of this prohibition, defeating any suggestion either that he
lacked notice that his conduct was unlawful or that the statute was enforced arbitrarily with
respect to him. See Farrell v. Burke, 449 F.3d at 494; United States v. Rybicki, 354 F.3d at
129.
In an effort to avoid this conclusion, Sabir argues that his offer of life-saving medical
treatment was simply consistent with his ethical obligations as a physician and not reflective
of any provision of support for a terrorist organization. The record does not support this
characterization. Sabir was not prosecuted for performing routine duties as a hospital
emergency room physician, treating admitted persons who coincidentally happened to be al
Qaeda members. Sabir was prosecuted for offering to work for al Qaeda as its on-call doctor,
available to treat wounded mujahideen who could not be brought to a hospital precisely
because they would likely have been arrested for terrorist activities. See GX 906T at 49, 69.
In offering this support for al Qaeda, Sabir did not simply honor his Hippocratic oath. He
swore a further oath of allegiance to al Qaeda, making clear that his treatment of wounded
mujahideen would be provided not as an independent physician but as “one of the soldiers
of Islam,” duty bound to obey al Qaeda’s leaders, including Osama bin Laden, and to protect
his fellow “brothers on the path of Jihad” and “on the path of al Qaeda.” Id. at 114-16. No
reasonable person with a common understanding of al Qaeda’s murderous objectives could
22
doubt that such material support fell squarely within the prohibitions of § 2339B. See Holder
v. Humanitarian Law Project, 130 S. Ct. at 2721 (holding that statute limiting “personnel”
to persons working under terrorist organization’s direction or control, rather than
independently, adequately avoided vagueness).
Nor is the statute’s prohibition on the provision of “expert assistance and advice” to
terrorist organizations unconstitutionally vague as applied to Sabir. As the district court
correctly observed, the medical expertise of a licensed physician plainly constitutes
“scientific, technical or other specialized knowledge” under 18 U.S.C. § 2339A.11 See
United States v. Shah, 474 F. Supp. 2d at 497 n.5. Indeed, such expertise requires more
specialized knowledge than the instruction in relief application that the Supreme Court held
“comfortably” to fall within the scope of “expert advice or assistance” in Holder v.
Humanitarian Law Project, 130 S. Ct. at 2720. Any person of ordinary intelligence would
readily recognize that such expert assistance (well outside the scope of one’s regular hospital
duties), with the stated object of permitting al Qaeda fighters to advance “on the path of
Jihad” is exactly the sort of material support proscribed by § 2339B. See Arriaga v.
Mukasey, 521 F.3d at 224; United States v. Rybicki, 354 F.3d at 129; cf. Watson v. Geren,
569 F.3d 115, 119, 134 (2d Cir. 2009) (upholding conscientious objector claim of doctor who
refused to serve in United States Army based on belief that treating wounded soldiers would
be functional equivalent of weaponizing human beings).
11
This definition for the term “expert advice or assistance” is familiar from Fed. R.
Evid. 702, governing expert witnesses.
23
Further, because Sabir’s proffered support, whether viewed as training, personnel, or
expert assistance, fell so squarely within the core of § 2339B’s prohibition, the application
of that law to his conduct cannot have been the product of arbitrary law enforcement. See
Farrell v. Burke, 449 F.3d at 494.
(4) The “Medicine” Exception Does Not Render § 2339B
Unconstitutionally Vague as Applied to Sabir
Sabir submits that, even if the training, personnel, and expert assistance provisions of
the material support statute are not unconstitutionally vague as applied to his case, they are
rendered so by vagueness in the statutory exemption of “medicine” from the definition of
“material support.” 18 U.S.C. § 2339A(b)(1); see Oral Arg. Tr. at 33 (Jan. 17, 2007) (“How
is a person of ordinary intelligence supposed to determine we are talking about medicine,
only medicine, but not the provision of medical treatment by a doctor?”).
The task of interpreting a statute necessarily begins with its language. See Bailey v.
United States, 516 U.S. 137, 144 (1995); United States v. Awadallah, 349 F.3d 42, 51 (2d
Cir. 2003). Considered in isolation, the word “medicine” can convey various meanings,
including both “a substance or preparation used in treating disease”12 and “the science and
art of dealing with the maintenance of health and the prevention, alleviation, or cure of
disease.” Webster’s 3d New Int’l Dictionary 1402 (2002); see also 9 Oxford English
Dictionary 549 (2d ed. 1989) (defining “medicine” as both “[a]ny substance or preparation
12
In this context, the word “preparation” obviously means “a substance specially
prepared, or made up for its appropriate use or application, e.g. as food or medicine,” not “the
action of preparing.” 12 Oxford English Dictionary 374 (2d ed. 1989).
24
used in the treatment of disease” and “[t]hat department of knowledge and practice which is
concerned with the cure, alleviation, and prevention of disease in human beings, and with the
restoration and preservation of health”). But we do not look at statutory language in isolation
to determine if it provides adequate notice of conduct proscribed or permitted. Rather, we
consider language in context, see Bailey v. United States, 516 U.S. at 145; see also Robinson
v. Shell Oil Co., 519 U.S. 337, 341 (1997), and, where appropriate, with the benefit of
canons of statutory construction, see United States v. Dauray, 215 F.3d 257, 262 (2d Cir.
2000), and legislative history, see Barenblatt v. United States, 360 U.S. 109, 117 (1959)
(relying on “legislative gloss” to reject vagueness challenge to expansive construction of rule
underlying conviction for contempt of Congress); United States v. Witkovich, 353 U.S. 194,
199 (1957) (observing that restrictive meaning of language may be indicated by, inter alia,
“persuasive gloss of legislative history”); United States v. Harriss, 347 U.S. 612, 620 (1954)
(relying in part on legislative history to construe statute to avoid vagueness challenge);
United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993) (rejecting vagueness challenge
where “common sense interpretation of [statutory language at issue] is confirmed by the
statute’s legislative history”).
The relevant context here starts with § 2339A(b)(1), which in cataloguing an
expansive array of tangibles and intangibles that can constitute “material support or
resources” notes two exceptions: “medicine or religious materials.” Relevant context also
extends to § 2339B(a)(1), the provision making it a crime to “provide” material support. In
the context of a statute focused on things that might be provided to support a terrorist
25
organization, “medicine” is reasonably understood as a substance or preparation rather than
as an art or science. “Providing medicine” is how common usage refers to the prescription
of a substance or preparation to treat a patient. See, e.g., Grieveson v. Anderson, 538 F.3d
763, 774 (7th Cir. 2008) (addressing challenge to practice that allegedly “provide[d] inmates
with quantities of medicine” that could allow them to overdose); El Badrawi v. Dep’t of
Homeland Sec., 258 F.R.D. 198, 202 (D. Conn. 2009) (addressing challenge to alleged
failure to “provide” inmate with medicine); Celia W. Dugger, Nigeria: Help for Fighting
Malaria, N.Y. Times, Oct. 24, 2009, at A8 (discussing organization’s announcement to
“provide enough medicine for 56 million malaria treatments”); Gardiner Harris, Institute of
Medicine Calls for Doctors to Stop Taking Gifts from Drug Makers, N.Y. Times, Apr. 29,
2009, at A17 (discussing recommendation that doctors stop giving free drug samples to
patients “unless the patient was poor and the doctor could continue to provide the medicine
for little or no cost”). By contrast, “practicing medicine” is how common usage describes
Sabir’s proposed activity, i.e., employing the art or science of medicine to treat a patient.
See, e.g., Smith v. Doe, 538 U.S. 84, 112 (2003) (Stevens, J., dissenting and concurring in
the judgment) (noting that incompetent doctor “may not be permitted to practice medicine”);
Planned Parenthood of S Penn. v. Casey, 505 U.S. at 884 (plurality opinion) (noting “practice
of medicine” was “subject to reasonable licensing and regulation”); Harris v. Mills, 572 F.3d
66, 68-69 (2d Cir. 2009) (affirming dismissal of lawsuit arising from “revocation of
[plaintiff’s] license to practice medicine”). Where the word “provide” is used to describe the
latter activity, reference ordinarily is made to “medical care,” or “medical treatment,” rather
26
than to “medicine” alone. See, e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 434 (2004)
(noting requirement of Medicaid statute that state “provide various medical services to
eligible children”); Washington v. Harper, 494 U.S. 210, 225-26 (1990) (describing state’s
interest with respect to mentally ill prison inmate “in providing him with medical treatment
for his illness”).
Moreover, Congress’s intent to have the medicine exception in § 2339A(b)(1) reach
no further than substances or preparations that might be provided to a terrorist organization
is stated with particular clarity in the statute’s legislative history. The House Conference
Report accompanying the original legislation states that the word “‘[m]edicine’ should be
understood to be limited to the medicine itself, and does not include the vast array of medical
supplies.” H.R. Conf. Rep. 105-518, at 114 (1996), reprinted in 1996 U.S.C.C.A.N. 944,
947. In drawing this distinction between “the medicine itself” and “medical supplies,”
Congress served clear notice that the medicine exception does not reach “the outer limits of
its definitional possibilities,” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006), but is
confined to medical substances and preparations.
In short, context, common usage, and legislative history combine to serve on both
individuals and law enforcement officers the notice required by due process that the medicine
exception identified in § 2339A(b)(1) shields only those who provide substances qualifying
as medicine to terrorist organizations. Other medical support, such as volunteering to serve
as an on-call doctor for a terrorist organization, constitutes a provision of personnel and/or
scientific assistance proscribed by law. See 18 U.S.C. §§ 2339A(b)(1), (3), 2339B(a)(1).
27
Accordingly, we identify no merit in Sabir’s claim that § 2339B is unconstitutionally
vague as applied to his case, and we decline to reverse his conviction as violative of the
notice requirement of due process.
B. The Trial Evidence Was Sufficient To Support Sabir’s Conviction
Sabir contends that the evidence was insufficient to support his conviction. The rule
of constitutional sufficiency, derived from the Due Process Clause, instructs that a conviction
cannot be obtained “except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime . . . charged.” In re Winship, 397 U.S. 358, 364 (1970); accord United
States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009). A defendant raising a sufficiency
challenge bears a heavy burden because a reviewing court must consider the totality of the
evidence in the light most favorable to the prosecution and uphold the conviction if “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United
States v. Aguilar, 585 F.3d at 656. Applying these principles to Sabir’s case, we reject his
sufficiency challenge as without merit.
1. Count One: Conspiracy
In challenging his conviction for conspiracy to provide material support to a known
terrorist organization, Sabir contends principally that the government failed to prove the
existence of an agreement to violate § 2339B. We are not persuaded. To convict a defendant
of conspiracy, the government must prove beyond a reasonable doubt “both the existence of
the conspiracy alleged and the defendant’s membership in it.” United States v. Chavez, 549
28
F.3d 119, 125 (2d Cir. 2008); see also id. (“The essence of any conspiracy is, of course,
agreement, and in order to establish a conspiracy, the government must show that two or
more persons entered into a joint enterprise with consciousness of its general nature and
extent.”). The trial evidence in this case easily satisfied these elements.
Testimonial evidence established that Shah and Sabir had long voiced interest in
supporting jihad and mujahideen. See, e.g., Trial Tr. at 193-96 (reporting Shah preaching
jihad and support for Osama bin Laden in late 1990s at Poughkeepsie mosque); id. at 287
(recounting Sabir’s 2003 conversation with mujahideen fighter inquiring how Sabir could
help with jihad). It is against this background that a jury would listen to the recorded
conversation of March 4, 2004, in which Shah proposed to a federal undercover agent that
Shah and Sabir – close friends for 25 years – join al Qaeda as “a pair, me and a doctor,” to
support that organization’s pursuit of jihad. GX 902T at 23. More significantly, during the
May 20, 2005 meeting at which Shah and Sabir formally swore allegiance and promised
support to al Qaeda, Shah by providing al Qaeda members with martial arts training and
Sabir by treating wounded al Qaeda members in Riyadh, see GX 906T at 106-16, Sabir
acknowledged that he and Shah had talked “for a long time” about supporting jihad, id. at
110. Sabir plainly viewed his and Shah’s actions at the May 20 meeting as part of their
common agreement. When Agent Soufan observed that neither man was obligated to support
al Qaeda, Sabir responded that to fail to do so would be to “abandon[] my brother (Shah)”
with respect to “the very thing we agreed upon . . . in the first place.” Id.
Accordingly, we identify no merit in Sabir’s sufficiency challenge to his conviction
29
for conspiracy to provide material support to a known terrorist organization.
2. Count Two: Attempt
Equally meritless is Sabir’s argument that the evidence was insufficient to support his
conviction for attempting to provide material support to a known foreign terrorist
organization. A conviction for attempt requires proof that a defendant (a) had the intent to
commit the object crime and (b) engaged in conduct amounting to a substantial step towards
its commission. See, e.g., United States v. Yousef, 327 F.3d 56, 134 (2d Cir. 2003).
a. Intent
Sabir does not challenge the sufficiency of the evidence establishing his intent to
provide material support to a foreign terrorist organization. Nor could he.13 In addition to
Sabir’s statements already quoted in this opinion, see supra at [5-6, 21, 27-28], which
constitute powerful evidence of the requisite intent, the following transcript excerpts from
the May 20, 1995 meeting further support this element.
After Sabir advised that his work in a Riyadh military hospital would put him in Saudi
Arabia for two years, Agent Soufan stated that Sabir could help al Qaeda “[a]s a doctor . . .
13
The intent required to prove attempted material support for a foreign terrorist
organization should not be confused with an intent to further terrorism. Just as that latter
intent is not required to prove an actual § 2339B violation, see Holder v. Humanitarian Law
Project, 130 S. Ct. at 2717 (“Congress plainly spoke to the necessary mental state for a
violation of § 2339B, and it chose knowledge about the organization’s connection to
terrorism, not specific intent to further the organization’s terrorist activities.”), it is not
required to prove a conspiracy or attempt to violate that statute. Nevertheless, in this case,
much of the evidence proving Sabir’s intent to provide material support also indicates his
intent to further terrorism.
30
as a Mujahid.” GX 906T at 19. Sabir not only signaled assent, he emphasized a need to
“feel sure within myself that if I make a certain move, that move is going to be effective.”
Id. To provide that assurance, Agent Soufan clarified how a doctor could be helpful to al
Qaeda’s pursuit of jihad. He stated that Osama bin Laden himself had told Soufan that “we
need doctors if they are trusted.” Id. at 32. Soufan explained that “brothers” sometimes get
“hurt with a bullet” during “training” and in “operation[s].” Id. at 48-49. Because they
cannot “go to a hospital,” the organization needs “doctor brothers . . . to protect them . . . [to]
keep the other brothers healthy.” Id. at 49.14 Sabir readily agreed to provide that support,
stating, “Let me give you another number,” whereupon he supplied his personal mobile
telephone number, which, with Soufan’s assistance, he rendered into code. Id. at 48-50.15
Sabir understood that the purpose of the code was to conceal the fact that he was working for
al Qaeda: Persons who learn the number “may not . . . understand [its] significance . . . .
14
Evidence of terrorist efforts to recruit doctors was adduced at trial in United States
v. Abu-Jihaad, --- F.3d ----, ----, 2010 WL 5140864, at *1 (2d Cir. 2010) (describing website
post soliciting persons to provide “battlefield medical services” in Afghanistan (internal
quotation marks omitted)).
15
Sabir had earlier provided Soufan with a contact number in response to the
undercover agent’s offer of assistance with “anything” Sabir might “need” in Saudi Arabia.
GX 906T at 40. In extending this offer, the undercover made clear that such assistance
would come from mujahideen: “[W]e have a lot of brothers, thank God, mujahideen . . . .
[T]hey will uh be very happy to assist another brother . . . . [T]hey still work in their jobs
with the government . . . but uh their hearts and minds are on the right track.” Id. at 15
(italics in transcript reflect translation from Arabic to English). Without prompting, Sabir
stated, “I would like to meet them,” proposing an exchange of contact numbers: “Even if you
just give me one person that I can contact over there, but I can give you my, my mobile
phone over there, the number I can give.” Id. at 40.
31
They may not even recognize it as a telephone number.” Id. at 51. He also understood that
the coded number would be provided to a trusted al Qaeda operative, who would identify
himself as “Mus’ab” when contacting Sabir on behalf of a wounded jihadist. Sabir
responded to this information, “God willing.” Id. at 87 (italics in transcript reflect translation
from Arabic to English).
Still later in the conversation, when Agent Soufan emphasized to Sabir that he could
decline to treat mujahideen if he was not committed to al Qaeda’s goals, Sabir made plain
that he had no reservations about using his medical expertise to support al Qaeda: “I will [do
what]ever I can do for the sake of God. . . . This is my job . . . the best I can do is to benefit
those people . . . who are striving in the way of Allah . . . . [T]hese are the ones that are most
deserving of the help.” Id. at 66. When Soufan further stated that it was difficult to take
mujahideen to a hospital for treatment, Sabir emphasized that his military identification
allowed him to travel freely around Saudi Arabia, thereby suggesting that he could go to the
injured person. “[I]t’s almost like carte blanche. . . . It’s like you can go where you want to
go with this . . . . And anybody that sees it, they don’t touch you.” Id. at 67. Later, Soufan
sought to confirm this understanding, stating “[t]hat ID will be very good for you . . . because
you can definitely help mujahideen now,” to which Sabir responded, “Yes, yes.” Id. at 69.
With evidence of his intent thus clearly established, Sabir focuses his sufficiency
challenge on the “substantial step” element of attempt.
b. Substantial Step
(1) The “Substantial Step” Requirement Expands Attempt
32
Beyond the Common Law
The “substantial step” requirement for attempt derives from the American Law
Institute’s Model Penal Code, which in the early 1960s sought to “widen the ambit of attempt
liability.” United States v. Ivic, 700 F.2d 51, 66 (2d Cir. 1983) (Friendly, J.) (citing Model
Penal Code § 5.01(1)(c) (Proposed Official Draft 1962)), overruled on other grounds by
National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 254-55, 262 (1994). Previously,
at common law, attempt had been limited to conduct close to the completion of the intended
crime. See generally People v. Werblow, 241 N.Y. 55, 69, 148 N.E. 786, 789 (1925)
(Cardozo, J.) (holding that, to constitute attempt, suspect’s conduct must “carry the project
forward within dangerous proximity to the criminal end to be attained”); Commonwealth v.
Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56 (1901) (Holmes, J.) (recognizing that “some
preparations may amount to an attempt” when they come “very near to the accomplishment
of the act”). By requiring proof only of a “substantial step” in furtherance of the intended
crime, the Model Code ushered in a broader view of attempt.
This court effectively adopted the Model Code’s formulation of attempt in United
States v. Stallworth, 543 F.2d 1038, 1040-41 (2d Cir. 1976). The Stallworth defendants were
arrested when their planned armed robbery was “in progress” and “[a]ll that stood between
[them] and success was a group of F.B.I. agents and police officers.” Id. at 1041. As such
evidence would have demonstrated attempt even under the common law, the significance of
the case rests not on its facts but on the court’s approving citation to the Model Code’s
identification of a range of conduct – not always proximate to the desired criminal end – that
33
might nevertheless constitute a substantial step when “strongly corroborative of the firmness
of the defendant’s criminal intent.” Id. at 1040 & n.5; see also id. at 1041 (observing that
application of Model Code “emphasizes the importance of a rule [of attempt] encouraging
early police intervention where a suspect is clearly bent on the commission of crime”).
Accord United States v. Crowley, 318 F.3d 401, 408 (2d Cir. 2003); United States v. Ivic,
700 F.2d at 66. Thus, a “substantial step” must be “something more than mere preparation,
yet may be less than the last act necessary before the actual commission of the substantive
crime.” United States v. Manley, 632 F.2d 978, 987 (2d Cir. 1980). It is conduct “‘planned
to culminate’” in the commission of the substantive crime being attempted. United States
v. Ivic, 700 F.2d at 66 (quoting Model Penal Code § 5.01(c) (Proposed Official Draft
1962)).16
(2) Identifying a Substantial Step by Reference to the Crime
Being Attempted
While the parameters of the substantial step requirement are simply stated, they do not
always provide bright lines for application. This is not surprising; the identification of a
substantial step, like the identification of attempt itself, is necessarily a matter “‘of degree,’”
United States v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950) (L. Hand, J.) (quoting
16
In Ivic, the court upheld convictions for attempting to bomb two locations,
observing that defendants’ inspection of one bombing site, construction of a fully operational
bomb, and transportation of the bomb to the vicinity of the target site satisfied even the
common law standard of attempt, while defendants’ discussion and authorization of the
second bombing, examination of the target site, and possession of explosives satisfied the
Model Code standard, albeit barely. See United States v. Ivic, 700 F.2d at 67.
34
Commonwealth v. Peaslee, 177 Mass. at 272, 59 N.E. at 56), that can vary depending on
“‘the particular facts of each case’” viewed in light of the crime charged, United States v.
Ivic, 700 F.2d at 66 (quoting United States v. Manley, 632 F.2d at 988)); accord United
States v. Crowley, 318 F.3d at 408. An act that may constitute a substantial step towards the
commission of one crime may not constitute such a step with respect to a different crime.
See generally United States v. Ivic, 700 F.2d at 66 (observing that substantial step
requirement serves to ensure that person is convicted for attempt only when actions manifest
“firm disposition” to commit charged crime). Thus, substantial-step analysis necessarily
begins with a proper understanding of the crime being attempted.
For example, in United States v. Delvecchio, 816 F.2d 859 (2d Cir. 1987), a case
frequently cited as illustrative of actions insufficient to demonstrate attempt, the substantive
crime at issue was possession of a large quantity of heroin. We held that a substantial step
to commit that crime was not established by proof that defendants had met with suppliers,
agreed on terms, and provided their beeper numbers. Such evidence, at most, established a
“verbal agreement,” which, “without more, is insufficient as a matter of law to support an
attempt[ed possession] conviction.” Id. at 862. In so concluding, we noted that what was
missing was any act to effect possession, such as acquisition, or attempted acquisition, of the
purchase money, or travel to the agreed-on purchase site. See id.The crime here at issue, however, is of a quite different sort. Sabir was charged with
attempting to provide material support for terrorism. Whereas an attempt to possess focuses
on a defendant’s efforts to acquire, an attempt to provide focuses on his efforts to supply, a
35
distinction that necessarily informs an assessment of what conduct will manifest a substantial
step towards the charged objective. Thus, while an agreement to purchase drugs from a
supplier is not a substantial step sufficient to convict for attempted possession, see id. at 862,
such an agreement to acquire might constitute a substantial step when the crime at issue is
attempted distribution, see United States v. Rosa, 11 F.3d 315, 340 (2d Cir. 1993) (holding
evidence insufficient to prove attempted distribution where defendant “did not produce any
heroin for the proposed sale . . ., and there was no evidence that [he] ever entered into an
agreement with a supplier or made inquiry of a supplier to obtain heroin for the proposed
sale”).
Further important to a substantial-step assessment is an understanding of the
underlying conduct proscribed by the crime being attempted. The conduct here at issue,
material support to a foreign terrorist organization, is different from drug trafficking and any
number of activities (e.g., murder, robbery, fraud) that are criminally proscribed because they
are inherently harmful. The material support statute criminalizes a range of conduct that may
not be harmful in itself but that may assist, even indirectly, organizations committed to
pursuing acts of devastating harm. Thus, as the Supreme Court recently observed, the very
focus of the material support statute is “preventative” in that it “criminalizes not terrorist
attacks themselves, but aid that makes the attacks more likely to occur.” Holder v.
Humanitarian Law Project, 130 S. Ct. at 2728. Accordingly, while a substantial step to
commit a robbery must be conduct planned clearly to culminate in that particular harm, a
substantial step towards the provision of material support need not be planned to culminate
36
in actual terrorist harm, but only in support – even benign support – for an organization
committed to such harm. See generally id. at 2724 (discussing Congress’s finding that
designated foreign terrorist organizations “‘are so tainted by their criminal conduct that any
contribution to such an organization facilitates that conduct’” (quoting AEDPA § 301(a)(7),
110 Stat. at 1247) (emphasis in Humanitarian Law Project).
(3) The Evidence Manifests a Substantial Step Towards the
Provision of Material Support in the Form of Personnel
The indictment charged Sabir with attempting to supply al Qaeda with material
support in three of the forms proscribed in 18 U.S.C. § 2339A(b)(1): “personnel, training,
and expert advice and assistance.” Indictment ¶ 2.17 We conclude that the evidence was
17
With respect to “personnel,” Sabir and Shah were alleged to have
knowingly provided, and attempted to provide, (i) one or more individuals
(including themselves) to work under al Qaeda’s direction and control and to
organize, manage, supervise, and otherwise direct the operation of al Qaeda.
Indictment ¶ 2. With respect to “training,” Sabir and Shah were alleged to have
knowingly provided, and attempted to provide, . . . (ii) instruction and
teaching designed to impart a special skill to further the illegal objectives of
al Qaeda.
Id. With respect to “expert advice and assistance,” Sabir and Shah were alleged to have
knowingly provided, and attempted to provide, . . . (iii) advice and assistance
derived from scientific, technical, and other specialized knowledge to further
the illegal objectives of al Qaeda, to wit, [Shah] provided and attempted to
provide martial arts training and instruction for jihadists, and [Sabir] provided
and attempted to provide medical support to wounded jihadists knowing that
al Qaeda has engaged and engages in terrorist activity . . . and that al Qaeda
has engaged and engages in terrorism.
37
sufficient to support Sabir’s conviction for attempting to provide material support in the form
of personnel – specifically, himself – to work for al Qaeda as a doctor on-call to treat
wounded jihadists in Saudi Arabia. See United States v. McCourty, 562 F.3d 458, 471 (2d
Cir. 2009) (recognizing that when theories of liability are pleaded in conjunctive, defendant
may be found guilty on proof of any one theory); United States v. Masotto, 73 F.3d 1233,
1241 (2d Cir. 1996) (holding evidence sufficient to affirm if reasonable jury could have
convicted on any theory charged).18 By coming to meet with a purported al Qaeda member
on May 20, 1995; by swearing an oath of allegiance to al Qaeda; by promising to be on call
in Saudi Arabia to treat wounded al Qaeda members; and by providing private and work
contact numbers for al Qaeda members to reach him in Saudi Arabia whenever they needed
treatment, Sabir engaged in conduct planned to culminate in his supplying al Qaeda with
Id.While our dissenting colleague submits that the government consistently focused on
the last form of material support charged, see Dissenting Op., post at [4 n.2], we do not
understand it to have abandoned the first two. Quite the contrary, the government referenced
personnel in summation, arguing that Sabir “tried to put himself in al Qaeda’s back pocket
when he gave [the undercover] his phone numbers.” Trial Tr. at 2374 (explaining further that
al Qaeda benefitted by thus acquiring “an asset that it didn’t have before . . . the telephone
number of a doctor . . . willing and able to come to [its] aid 24 hours a day”). Moreover, the
district court charged the jury as to each of the three forms of material support alleged in the
indictment and their distinct meanings, and further instructed that proof beyond a reasonable
doubt of an attempt to provide material support in any of these forms was sufficient to
support a guilty verdict. See id. at 2586-87.
18
In light of this conclusion, we need not discuss the sufficiency of the evidence to
support Sabir’s Count Two conviction on any other theory. Specifically, we need not
consider the government’s argument that Sabir was guilty of aiding and abetting Shah’s
attempt to provide material support to al Qaeda in the form of martial arts training. See
Griffin v. United States, 502 U.S. 46, 56-60 (1991).
38
personnel, thereby satisfying the substantial step requirement.19
(4) The Dissent’s Mistaken View of the Substantial Step
Requirement
(a) Sabir Did More Than Express a Radical Idea
When He Produced Himself as a Doctor Sworn
To Work Under the Direction of al Qaeda
In dissent, Chief Judge Dearie asserts that by upholding Sabir’s attempt conviction
on the record evidence, we approve punishing a defendant for radical thoughts rather than
criminal deeds. See Dissenting Op., post at [16]. We do no such thing. Sabir’s words and
actions on May 20, 1995, did more than manifest radical sympathies. See United States v.
Crowley, 318 F.3d at 408 (observing that substantial step requirement ensures that attempt
does not punish persons “for their thoughts alone”). By attending the May 20, 2005 meeting
and committing to work under al-Qaeda’s direction and control as an on-call doctor, Sabir
physically produced the very personnel to be provided as material support for the terrorist
organization: himself. This supplying of the proscribed object is precisely the sort of
substantial step that was missing in United States v. Rosa, 11 F.3d at 340 (holding evidence
insufficient to support conviction for attempt to distribute heroin in absence of proof that
defendant ever “produce[d] any heroin” or reached agreement with heroin supplier to acquire
19
Judge Raggi is of the view that, if the circumstances on May 20, 2005, had been as
Sabir believed, i.e., if Agent Soufan had been a member of al Qaeda, the evidence was
otherwise sufficient to support a finding that Sabir actually provided, and not simply
attempted to provide, himself as personnel to work under the direction of that terrorist
organization. The court does not rule on that question as our rejection of Sabir’s sufficiency
challenge to attempt supports affirmance of his conviction.
39
heroin for planned distribution).
Viewed in this context, Sabir’s oath of allegiance to al Qaeda evidenced more than
“mere membership” in that terrorist organization. Holder v. Humanitarian Law Project, 130
S. Ct. at 2719 (holding that § 2339B does not criminalize “mere membership” in designated
terrorist organization; it prohibits providing “material support” to that group). Sabir’s
purpose in swearing bayat was to formalize his promise to work as a doctor under the
organization’s direction and control.20 That is most certainly evidence of a crime: the
charged crime of attempting to provide material support to terrorism in the form of personnel.
See 18 U.S.C. § 2339B(h) (clarifying that what is proscribed is the provision of personnel
“to work under” the “direction or control” of a terrorist organization). Further, by providing
his contact numbers, Sabir took a step essential to provide al Qaeda with personnel in the
form of an on-call doctor: he provided the means by which mujahideen in Riyadh could reach
that doctor at any time, day or night, that they needed emergency treatment. From the totality
of these facts, a reasonable jury could have concluded that on May 20, 2005, Sabir crossed
the line from simply professing radical beliefs or joining a radical organization to attempting
a crime, specifically, Sabir’s provision of himself as personnel to work under the direction
and control of al Qaeda.
20
Before Sabir took the oath, Agent Soufan had explained that Osama bin Laden and
Ayman Zawahiri required a pledge from all persons proposing to work for al Qaeda to ensure
that the persons “won’t be acting on their own,” but following leadership direction.
GX 906T at 97-98 (explaining that everything within al Qaeda was “very, very controlled,”
but emphasizing that “nobody is forced” to take the oath; “there is no coercion in religion”).
40
(b) The Provision of Personnel and the Subsequent
Provision of Expert Services by Such Personnel
Are Distinct Forms of Material Support
Chief Judge Dearie submits that the time and distance to be traveled by Sabir before
he actually provided any medical treatment to al Qaeda warriors was too great to permit a
jury to find that his actions constituted a substantial step towards commission of the charged
crime. See Dissenting Op., post at [9, 12]. This mistakenly equates the provision of
personnel to a terrorist organization with the subsequent provision of services by that
personnel, a misapprehension that pervades the dissent and informs its conclusion that Sabir
stands guilty “for an offense that he did not commit.” Id. at [20]. While it may frequently
be the case that a defendant who intends to provide a terrorist organization with personnel
also intends for the personnel to provide the organization with services, § 2339A(b)(1)
specifically recognizes “personnel” and “services” – particularly services in the form of
“expert advice and assistance,” such as medical treatment – as distinct types of material
support.21 Thus, even if the provision (or attempted provision) of these two forms of material
support may be simultaneous in some cases, it may not be in others. For that reason,
evidence sufficient to demonstrate a substantial step towards the provision of personnel may
not always be sufficient to demonstrate a substantial step towards the personnel’s provision
of services. Whether or not Sabir’s May 20, 2005 actions were a substantial step in the
21
Section 2339A(b)(1) broadly defines “material support or resources” to mean “any
property, tangible or intangible, or service,” of which “personnel” and “expert advice or
assistance,” are examples. See supra at [10].
41
provision of expert medical services to terrorists, we conclude that they were a substantial
step in the provision of Sabir himself as personnel.
To illustrate, assume that, instead of offering himself as an on-call doctor to al Qaeda,
Sabir had recruited a doctor who was, in all respects, identically situated to himself. Assume
further that Sabir then brought that doctor to a meeting in New York where the doctor swore
allegiance to al Qaeda, promised a supposed al Qaeda member that he would work as an on-
call doctor for the organization, and gave the member contact numbers so that wounded
jihadists in Saudi Arabia could reach the doctor when necessary. Even the dissent concedes
that such evidence would be sufficient to prove Sabir “guilty of attempting to provide
personnel,” although the recruited doctor would not provide actual medical services until
some time in the future and after he traveled from New York to Saudi Arabia. Dissenting
Op., post at [11]. Because Sabir would be guilty of attempting to provide personnel in the
circumstances hypothesized, we think it necessarily follows that he is equally guilty on the
record facts. He is guilty of attempting to provide himself as personnel to al Qaeda on May
20, 2005, even if he is not yet guilty of attempting to provide medical services to that
organization.
In concluding otherwise, Chief Judge Dearie submits that the recruiter in the
hypothetical “has done something. He has provided a service to the organization.” Id. By
contrast, he submits that Sabir “has done nothing more than conspire.” Id. at 12.22 We
22
Of course, Sabir could not conspire with the undercover agent. Sabir’s conspiracy
conviction in this case is supported by his agreement with co-defendant Shah, an agreement
42
disagree. Section 2339(B) criminalizes providing personnel through self-recruitment (i.e.,
volunteering oneself to serve under the direction of a terrorist organization) no less than
through recruitment (securing another person to serve under such direction).23 By
volunteering himself as an on-call doctor for al Qaeda, Sabir rendered, or attempted to
render, that organization as much of a service in producing personnel as the recruiter who
solicited a doctor for that purpose. To hold otherwise would be to apply a different standard
of sufficiency to the provision of personnel depending on whether the person being provided
is oneself or another, a distinction for which there is no support in a statute that equally
proscribes the provision of oneself or another to work under the direction of a terrorist
organization.
Chief Judge Dearie suggests that a constitutional concern arises when a defendant is
prosecuted for providing himself rather than a third party as personnel because in the former
circumstance a defendant “‘could be punished for, in effect, providing [himself] to speak out
in support of the program or principles of a foreign terrorist organization, an activity
protected by the First Amendment.’” Dissenting Op., post at [10 n.10] (quoting United
States v. Stewart, 590 F.3d 93, 118 (2d Cir. 2009) (dictum)). The Supreme Court, however,
reached even before the May 20, 2005 meeting.
23
The fact that the dictionary defines “personnel” by reference to a “body of people,”
see Dissenting Op., post at [13 n.7] (quoting Oxford English Dictionary), is of no import here
where the relevant statutes, 18 U.S.C. §§ 2339A(b)(1), 2339B, state that “personnel” means
“1 or more individuals who may be or include oneself,” see, e.g., Colautti v. Franklin, 439
U.S. 379, 392 n.10 (1979) (referencing rule of construction that statutory definition controls
meaning of terms).
43
has now held otherwise, explaining that the material support statute leaves persons free to
engage in “independent advocacy,” proscribing only conduct “directed to, coordinated with,
or controlled by foreign terrorist groups.” Holder v. Humanitarian Law Project, 130 S. Ct.
at 2728; see id. at 2721 (observing that § 2339B “makes clear that ‘personnel’ does not cover
independent advocacy” (emphasis in original)).
Here, there is no question that Sabir was providing himself to work under the direction
and control of al Qaeda – the jury heard him solemnly swear to do so. By dismissing this
evidence as “insubstantial” and “immaterial,” and demanding proof of a greater level of
“engagement, activity or compliance” to support conviction, Dissenting Op., post at [20],
our dissenting colleague persists in conflating the provision of personnel with the provision
of services by that personnel. While the latter form of material support may require proof
of particular engagement or activity, the former focuses on submission to the direction and
control of a terrorist organization.24
24
Many of the district court cases cited by the dissent treat direction and control, not
a particular level of activity, as the critical fact in assessing a provision of personnel charge.
See, e.g., United States v. Taleb-Jedi, 566 F. Supp. 2d 157, 176 (E.D.N.Y. 2008) (rejecting
defendant’s First Amendment challenge to proscription on providing personnel, observing
that statute prohibits person from working under “terrorist organization’s direction or
control” no matter how benign the work); United States v. Lindh, 212 F. Supp. 2d 541, 573
(E.D. Va. 2002) (holding that provision of personnel requires proof of more than defendant’s
“mere presence” among members of terrorist organization: “‘Personnel’ refers to individuals
who function as employees or quasi-employees – those who serve under the foreign entity’s
direction or control.”); see also United States v. Abu-Jihaad, 600 F. Supp. 2d 363, 401 (D.
Conn. 2009) (holding that defendants transmittal of national defense information to publisher
linked to al Qaeda was insufficient to prove defendant’s provision of himself as personnel
in absence of evidence as to whether information was provided in response to publisher’s
request – which would permit finding that defendant had provided himself as personnel – or
44
The importance of the distinction we draw between the evidence necessary to prove
a defendant’s provision of personnel to a terrorist organization and that personnel’s
subsequent provision of services to the organization reaches beyond this case. Experience
teaches that terrorist organizations frequently recruit persons into their ranks at times and
places removed from any service they might render. Thus, someone who supplies suicide
bombers or pilots or chemists or doctors or simple foot soldiers to a terrorist organization
may reasonably be understood to provide the organization with material support in the form
of personnel when the recruited individuals pledge to work under the direction of the
organization, even though they may not be called upon to render any particular service for
months, years, or at all. By the same reasoning, when a person supplies himself as the
bomber or pilot or doctor sought by the terrorist organization, he provides – or certainly
attempts to provide – material support in the form of personnel as soon as he pledges to work
under the direction of the organization. In both circumstances, the organization acquires an
important asset, reserve personnel, which can facilitate its planning of future terrorism
objectives. See generally Holder v. Humanitarian Law Project, 130 S. Ct. at 2725(recognizing that material support not directly furthering terrorism can be valuable in
“free[ing] up other resources within the organization that may be put to violent ends”).
on defendant’s whim – which would not), aff’d on other grounds, --- F.3d at ----, 2010 WL
5140864 at *32; United States v. Warsame, 537 F. Supp. 2d 1005, 1018 (D. Minn. 2008)
(holding that defendant’s participation in an al Qaeda training camp – a circumstance where
control could easily be inferred – sufficed to demonstrate provision of himself as personnel,
but mere communications with al Qaeda associates after return to Canada – a circumstance
where control was not apparent – could not).
45
Thus, even if Sabir needed to return to Riyadh before he could provide actual medical
services to members of al Qaeda – something he planned to do within two weeks, see
GX906T at 15 – his actions on May 20, 2005, constituted a substantial step clearly intended
to culminate in supplying himself as personnel to work under the direction of that terrorist
organization.
(c) Upholding Sabir’s Attempt Conviction Raises No
Double Jeopardy Concerns
Chief Judge Dearie suggests that if we affirm Sabir’s attempt conviction, a double
jeopardy concern arises with respect to his conspiracy conviction. See Dissenting Op., post
at [15].25 We do not share this concern, which Sabir himself does not raise. See, e.g., Norton
v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).26
An attempt to provide personnel does not require proof of concerted action, an
essential element of conspiracy. Moreover, a conspiracy requires only proof of an agreement
25
In raising this concern, our dissenting colleague submits that “[c]onspiracy charges
unaccompanied by a completed substantive crime are relatively rare, and can be troubling
when the available evidence leaves one to speculate whether the criminal objective would
have been realized.” Dissenting Op., post at [17]. We take exception to this broad
generalization. A sufficiency challenge to a conspiracy conviction, whether standing alone
or together with a substantive count, requires a review of the evidence in that particular case.
Here, Chief Judge Dearie joins the panel in unanimously affirming Sabir’s conspiracy
conviction.
26
Although Sabir’s attorney urged the district court to impose concurrent sentences,
arguing that the conspiracy and substantive charges against him “are actually encompassed
in the same conduct,” Sentencing Tr., Nov. 28, 2007, at 13-14, this is not a double jeopardy
claim, see United States v. Dixon, 509 U.S. 688, 704 (1993) (reversing Grady v. Corbin, 495
U.S. 508 (1990)).
46
to provide personnel, not any substantial step toward such provision. See, e.g., Blockburger
v. United States, 284 U.S. 299, 304 (1932); United States v. Basciano, 599 F.3d 184, 197-98
(2d Cir. 2010). As we have already observed, Sabir admitted reaching a conspiratorial
agreement with Shah even before the May 20, 2005 meeting. But it was only at the meeting
that Sabir took actions – volunteering himself as an on-call doctor for al Qaeda, swearing
obedience to that organization, and providing contact numbers so that al Qaeda members
could call him when they needed medical treatment – that permitted a reasonable jury to find
a substantial step manifesting Sabir’s “firm disposition” to provide personnel. United States
v. Ivic, 700 F.2d at 66. We reject Chief Judge Dearie’s characterization of this conduct as
merely passive.
(d) No Government Conduct Precluded a Jury
Finding of a Substantial Step
Insofar as the dissent suggests that Sabir’s words or actions were somehow prompted
by the undercover agent,27 the insinuation of entrapment is so patently unwarranted that Sabir
himself waived this defense in the district court, precluding its consideration on appeal. See
Trial Tr. at 2387-89; see also United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007)
(discussing true waiver). Even if the dissent intends to imply something less than
27
The dissent submits that Sabir “chanted the mantra of a terrorist” because he was
“led by the government agent and inspired by his co-defendant.” Dissenting Op., post at
[17]. What it fails to report is that before Sabir swore bayat, he detailed his understanding
of the oath’s “deepest significance,” GX 906T at 112-13 (discussing historical origin of oath,
which Sabir explained “formed a trust” that could not be achieved in any “other way . . .
because you cannot be complete without it”).
47
entrapment, the question of whether Sabir’s recorded statements on May 20, 2005, were
volunteered or solicited, firm or equivocal, was one of fact to be decided by the jury, which
had the distinct advantage over this court of hearing both the recording of the May 20
meeting and Sabir’s trial testimony.
Of course, in making its evaluation, the jury presumably considered facts elided by
the dissent, which show that Sabir, far from being a gullible mark for al Qaeda recruitment,
was a highly educated United States citizen, indeed, a trained scientist. We presume the jury
also considered Sabir’s statements that, before meeting Agent Soufan on May 20, 2005, Sabir
had both (1) reached agreement with Shah that the two men would provide material support
to al Qaeda, see GX 906T at 110, and (2) decided that he could only provide such support
working within his area of expertise as a physician, see id. at 65-66. In this context, the jury
could reasonably have concluded that Agent Soufan’s statements did not lead Sabir into
words and actions about which he had reservations. Rather, Soufan’s statements served to
ensure that when Sabir volunteered himself as an on-call doctor for al Qaeda and supplied
contact numbers, he did so knowing and fully intending to provide personnel for the purpose
of treating wounded jihad warriors and not innocent victims of terrorism.
In sum, we conclude that the totality of the evidence was more than sufficient to
permit a reasonable jury to find that on May 20, 2005, Sabir took a substantial step intended
to culminate in the provision of himself as personnel to work under the direction of al Qaeda.
Accordingly, we uphold his convictions for both conspiring and attempting to provide
material support to a foreign terrorist organization.
48
C. The District Court Reasonably Rejected Sabir’s Batson Challenge
Sabir, who is African-American, argues that the prosecution’s use of peremptory
challenges to excuse five African Americans from the jury in his case violated the Fourteenth
Amendment’s guarantee of equal protection as construed by the Supreme Court in Batson
v. Kentucky, 476 U.S. 79 (1986).28 After an extensive inquiry, the district court rejected this
argument, finding that each of the five challenges was supported by credible non-
discriminatory reasons. Such a ruling “represents a finding of fact,” which we will not
disturb in the absence of clear error. Hernandez v. New York, 500 U.S. 352, 364, 369 (1991)
(plurality opinion); see United States v. Lee, 549 F.3d 84, 94 (2d Cir. 2008); United States
v. Taylor, 92 F.3d 1313, 1326 (2d Cir. 1996). We identify no such error in this case.
A three-step inquiry guides a district court’s evaluation of a Batson challenge:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race; second, if that showing has
been made, the prosecution must offer a race-neutral basis for striking the juror
in question; and third, in light of the parties’ submissions, the trial court must
determine whether the defendant has shown purposeful discrimination.
Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (internal quotation marks and brackets
omitted). For purposes of this appeal, we assume that Sabir satisfied the “minimal burden”
of a prima facie showing, Overton v. Newton, 295 F.3d 270, 279 n.10 (2d Cir. 2002), as he
could do by reference to the government’s overall exclusion rate for African-American
prospective jurors, see Jones v. West, 555 F.3d 90, 98-99 (2d Cir. 2009). Nor need we
28
Four of the twelve jurors who deliberated in Sabir’s case were African Americans.
Of those four, one was excused before verdict. See Fed. R. Crim. P. 23(b).
49
discuss the second prong of Batson analysis as Sabir does not – and cannot – contend that
the government failed to proffer reasons for its challenges that were racially neutral on their
face. See generally Hernandez v. New York, 500 U.S. at 360 (observing that at second step
of Batson analysis, explanation need not be persuasive; it need only be “based on something
other than the race of the juror”). Instead, we focus on Sabir’s argument that with respect
to three of the five challenged African Americans – prospective jurors #5, #26, and #27 – the
reasons the government advanced were “clearly pretextual.” Appellant’s Br. at 57, 59, 61.29
Sabir’s pretext argument is based largely – though not exclusively – on the
prosecution’s purported failure to apply its proffered race-neutral reasons for excusing
African Americans to similarly situated prospective jurors of other races or ethnicities. Such
inconsistency can demonstrate a discriminatory intent. See Miller-El v. Dretke, 545 U.S.
231, 241 (2005) (observing that “[m]ore powerful than . . . bare statistics” in evidencing
29
Because Sabir does not specifically challenge the district court’s rejection of his
Batson argument with respect to the two other African Americans excused by the prosecution
– prospective jurors #14 and #49 – we deem the point abandoned. See United States v.
Draper, 553 F.3d 174, 179 n.2 (2d Cir. 2009). We nevertheless note that the record does not
support any such challenge. The district court expressly found that the prosecution was
credibly concerned about these prospective jurors’ initially expressed reservations about
certain investigative techniques that were used to gather evidence in the case, i.e.,
wiretapping (prospective juror #14) and the use of confidential informants (prospective juror
#49). Such a credibility finding is entitled to considerable deference on appeal. See United
States v. Lee, 549 F.3d at 94. As the district court correctly observed, the jurors’ professed
willingness to put their reservations aside meant only that the prosecution could not secure
their removal for cause, not that it could not retain a credibly race-neutral concern supporting
the exercise of a non-discriminatory peremptory challenge. Further, with respect to the
prosecution’s stated concern about prospective juror #49’s difficulty of comprehension, the
court’s acknowledgment that it had itself observed the difficulty supports its finding that this
too was a credible race-neutral reason for excusing the juror.
50
pretext for discrimination “are side-by-side comparisons of some black venire panelists who
were struck and white panelists allowed to serve”); United States v. Thomas, 303 F.3d 138,
145 (2d Cir. 2002) (“Support for the notion that there was purposeful discrimination in the
peremptory challenge may lie in the similarity between the characteristics of jurors struck
and jurors accepted.” (internal quotation marks omitted)). The record in this case, however,
does not demonstrate sufficient juror similarity to render clearly erroneous the district court’s
rejection of Sabir’s Batson claim.
1. Prospective Juror #5
The government cited three race-neutral reasons for excusing prospective juror #5:
(1) his failure to secure appointment to the Boston police force might cause him to lean
against law enforcement; (2) he was somewhat equivocal about his ability to set aside the
view that he was frequently a victim of race discrimination, see Voir Dire Tr. at 11 (“I think
I can give it the college try and be as fair as any other person could be.”); and (3) his
employment working with autistic children might make him less sympathetic to prosecution
witnesses. In arguing pretext, Sabir notes that the prosecution showed no comparable
concern for equivocal responses from other jurors whose backgrounds raised questions about
their impartiality. We need not resolve the parties’ dispute about the relative degrees of
equivocation in various jurors’ responses because the district court did not rely on this second
proffered prosecution reason in rejecting Sabir’s Batson challenge. Nor did it rely on the
third reason, which the government does not maintain on appeal. Instead, the district court
found that the prosecution had credibly demonstrated that it would have excused prospective
51
juror #5 for the first reason articulated regardless of race. See generally United States v.
Douglas, 525 F.3d 225, 239 (2d Cir. 2008) (observing that where prosecution articulates
multiple reasons for peremptory challenge, one of which is race, it must demonstrate that
challenge would have been exercised for race-neutral reason in any event).
In challenging this conclusion, Sabir suggests that the lost job opportunity was
effectively irrelevant as prospective juror #5 conceded that he did not satisfy the residency
requirement for appointment. The district court, however, concluded from its own
questioning of the juror that he manifested “excessive defensiveness” about the
circumstances relating to his failure to secure the police appointment, which provided the
government with a credible race-neutral basis for concern about his ability to be impartial
toward law enforcement officials. Voir Dire Tr. at 123. This finding turned largely on the
district court’s assessment of the juror’s demeanor and credibility, a matter “peculiarly within
[its] province,” Snyder v. Louisiana, 552 U.S. at 477 (internal quotation marks omitted), to
which we accord “great deference,” United States v. Lee, 549 F.3d at 94. Accordingly, we
conclude that Sabir has failed to identify clear error in the district court’s rejection of his
Batson challenge with respect to prospective juror #5.
2. Prospective Juror #26
The government advanced four reasons for excusing prospective juror #26: (1) her
work as a home health aide might cause her to sympathize with Sabir, a physician; (2) her
friend’s daughter’s marriage to a man from Yemen might also make her sympathetic to
Sabir’s circumstances; (3) her purportedly disheveled appearance and lack of focus in
52
responding to questions raised attentiveness concerns; and (4) her regular viewing of three
“CSI” television shows might lead her to have unrealistic expectations as to the prosecution’s
ability to produce technical and scientific evidence of guilt in every case.30 While the district
court did not agree with the prosecution’s characterization of the prospective juror’s
appearance, it found the other identified concerns, including the juror’s lack of focus, to
constitute credible race-neutral grounds for the prosecution’s exercise of a peremptory
challenge.
In maintaining his claim of pretext on appeal, Sabir observes that the prosecution did
not excuse non-African American venirepersons who worked in health care, notably
prospective juror #19, who worked in a veterans’ hospital. Nor did it excuse non-African
Americans with ties to Muslims, such as prospective juror #69, who had dated a Muslim.
The argument ignores the fact that neither of these prospective jurors demonstrated the range
of concerns presented by prospective juror #26.31 Certainly, neither presented a focus
30
“CSI: Crime Scene Investigation,” along with “CSI: Miami” and “CSI: NY,” are
a trio of popular television series about fictitious teams of forensic investigators who solve
crimes by applying science and technology to the review of physical evidence. See “CSI:
Crime Scene Investigation,” http://www.cbs.com/primetime/csi/.
31
Because Sabir challenges the prosecution’s professed concern about prospective
juror #26’s possible link to a person from Yemen only on pretext grounds (based on
dissimilar treatment of another juror), and because other concerns about #26 defeat the
pretext claim, we need not here decide under what circumstances a prospective juror’s
association with a person of a particular nationality may warrant further inquiry to ensure
impartiality. See generally United States v. Douglas, 525 F.3d at 241 (noting that “this Court
has not decided the issue of whether national origin is a cognizable classification for Batson
protection” (internal quotation marks omitted)); cf. United States v. Stewart, 65 F.3d 918,
925 (11th Cir. 1995) (including “subject matter of case being tried” among “relevant
53
concern. As to prospective juror #26, the district court expressly found that she had “a more
distracted attitude” than other members of the venire, which she manifested by persistently
“looking over toward her left during the questioning.” Voir Dire Tr. at 129. We defer to the
district court’s considerable voir dire experience in making demeanor observations, see
Snyder v. Louisiana, 552 U.S. at 477, and we note that such distractedness is, by itself, a
sufficient race-neutral ground to support exercise of a peremptory challenge, see generally
Brown v. Kelly, 973 F.2d 116, 121 (2d Cir. 1992) (“An impression of the conduct and
demeanor of the prospective juror during the voir dire may provide a legitimate basis for the
exercise of a peremptory challenge.”).
Accordingly, we identify no clear error in the district court’s rejection of Sabir’s
Batson challenge with respect to prospective juror #26.
3. Prospective Juror #27
The prosecution offered two race-neutral reasons for excusing prospective juror #27:
(1) the person’s thirty-year career in the New York City Department of Social Services might
cause him to be sympathetic to persons in difficult straits as well as more skeptical of
government authority, and (2) his frequent television viewing of the three “CSI” television
shows might make him reluctant to convict in the absence of scientific evidence. See Voir
Dire Tr. at 131.
In Messiah v. Duncan, 435 F.3d 186 (2d Cir. 2006), we observed that “[i]t is not
circumstances” appropriate for consideration in evaluating Batson challenge).
54
implausible” for a prosecutor to think that “a social service provider who has dedicated his
professional life to helping others might have more sympathy for a defendant” than other
prospective jurors. Id. at 200. That conclusion, like many others informing peremptory
challenges, may be based on a group stereotype, but not one that violates equal protection.
Cf. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 n.14 (1994) (distinguishing peremptory
challenges based on race from those based on occupation).
Similarly, it was plausible for the prosecutor to think that a juror who regularly
watched television shows in which forensic science conclusively solved crimes might be
more inclined to demand such evidence in order to convict. See United States v. Fields, 483
F.3d 313, 355 n.39 (5th Cir. 2007) (observing that claim that “CSI” shows cause jurors to
demand scientific evidence was “plausible” even though not “proven empirically”).
The district court having found the prosecution credible in its profession of these
concerns with respect to prospective juror #27, we identify no clear error in its rejection of
Sabir’s Batson argument with respect to the exercise of this peremptory challenge.
In sum, we reject Sabir’s equal protection challenge to his conviction as without merit.
D. Sabir’s Evidentiary Challenges Are Uniformly Without Merit
Sabir asserts that his conviction is infected by a host of evidentiary errors pertaining
to (1) the receipt of expert testimony, see Fed. R. Evid. 702; (2) the receipt of hearsay
statements by Shah, see U.S. Const. amend. VI; Fed. R. Evid. 801(d)(2)(E); (3) the exclusion
of a prior inconsistent statement by a prosecution witness, see Fed. R. Evid. 801(d)(1)(A);
(4) the exclusion of evidence of defendant’s state of mind, see Fed. R. Evid. 803(3); and (5)
55
the receipt of myriad evidence that was more prejudicial than probative, see Fed. R. Evid.
403.
1. Expert Witness Testimony
Sabir challenges the district court’s decision, supported by a detailed written opinion,
to allow Evan Kohlmann to testify as an expert witness about al Qaeda and Azzam
Publications, the publisher of a jihadist videotape offered in the prosecution’s direct case.
See United States v. Sabir, No. 05 Cr. 673 (LAP), 2007 WL 1373184 (S.D.N.Y. May 10,
2007).
The admission of expert testimony is governed by Fed. R. Evid. 702, which states as
follows:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
The law assigns district courts a “gatekeeping” role in ensuring that expert testimony satisfies
the requirements of Rule 702. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); see
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993) (articulating non-
exhaustive list of criteria court may apply in performing gatekeeping function). The inquiry
is “a flexible one,” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. at 594, and district courts
enjoy considerable discretion in deciding on the admissibility of expert testimony, see
Kumho Tire Co. v. Carmichael, 526 U.S. at 152. We will not disturb a ruling respecting
56
expert testimony absent a showing of manifest error, see Zerega Ave. Realty Corp. v.
Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213 (2d Cir. 2009), which is not present
here.
a. Kohlmann’s Testimony Satisfied the Enumerated Requirements
of Rule 702
Sabir contends that Kohlmann’s testimony satisfied none of the three enumerated
requirements of Rule 702. We disagree.
Kohlmann’s proposed expert testimony had a considerable factual basis: (1) his
graduate studies at Georgetown University’s School of Foreign Service and Center for
Contemporary Arab Studies and at the University of Pennsylvania Law School; (2) his full
time employment at two organizations focusing on terrorism and al Qaeda,
“Globalterroralert.com” and the Investigative Project; (3) his authorship of various academic
papers and a book on al Qaeda; (4) his provision of consulting services on terrorism and al
Qaeda to various federal agencies; and (5) his ongoing efforts to collect, analyze, and
catalogue written, audio, and visual materials relevant to terrorism generally and al Qaeda
in particular, including the records of guilty pleas and confessions from admitted al Qaeda
operatives.
Before admitting Kohlmann’s testimony, the district court also considered – without
objection from the parties – the record of a Daubert hearing in another case in which
Kohlmann was proffered as a terrorism expert. The evidence adduced at that hearing
permitted the trial judge to conclude that Kohlmann’s work had undergone “‘various forms
57
of peer review,’” that his opinions were “‘generally accepted within the relevant
community,’” and that his methodology was “‘similar to that employed by experts that have
been permitted to testify in other federal cases involving terrorist organizations.’” United
States v. Sabir, 2007 WL 1373184, at *8 (quoting United States v. Paracha, No. 03 Cr. 1197
(SHS), 2006 WL 12768, at *20 (S.D.N.Y. Jan. 3, 2006)).32
On this record, we conclude that the district court acted well within its discretion in
concluding that Kohlmann’s testimony satisfied the enumerated requirements of Rule 702.33
b. Kohlmann’s Testimony Was Helpful to the Jury
Sabir submits that, even if Kohlmann properly qualified as an expert, his testimony
about al Qaeda’s history and structure was not helpful because jurors’ familiarity with al
Qaeda and its leader, Osama bin Laden, could be presumed. The argument requires little
discussion. We have approved the use of expert testimony to provide juries with background
on criminal organizations, notably organized crime families. See, e.g., United States v.
Matera, 489 F.3d 115, 121-22 (2d Cir. 2007). As we explained in United States v. Amuso,
32
Kohlmann has, in fact, been qualified as an expert on al Qaeda and terrorism in a
number of federal prosecutions. See, e.g., United States v. Benkahla, 530 F.3d 300, 309 n.2
(4th Cir. 2008); United States v. Aref, 285 F. App’x 784, 792 (2d Cir. 2008); United States
v. Abu-Jihaad, 600 F. Supp. 2d 362, 366 (D. Conn. 2009); United States v. Kassir, No. 04
Cr. 356 (JPK), 2009 WL 910767, at *7 (S.D.N.Y. Apr. 2, 2009).
33
To the extent Sabir challenges Kohlmann’s testimony about al Qaeda’s terrorist
activities in Saudi Arabia on the ground that the government offered no evidence of Sabir’s
specific awareness of these activities, the argument bears more on the comparative
relevance/prejudice inquiry identified in Rule 403 than on the requirements stated in Rule
702. We discuss the relevancy of this part of Kohlmann’s testimony infra at Part II.D.1.c.
58
21 F.3d 1251 (2d Cir. 1994):
[d]espite the prevalence of organized crime stories in the news and popular
media, these topics remain proper subjects for expert testimony. Aside from
the probability that the depiction of organized crime in movies and television
is misleading, the fact remains that the operational methods of organized crime
families are still beyond the knowledge of the average citizen.
Id. at 1264. The rationale applies with equal force to terrorist organizations, including al
Qaeda.
c. Kohlmann’s Testimony Was Relevant
Sabir’s relevancy challenge to certain aspects of Kohlmann’s testimony is equally
unavailing. See Fed. R. Evid. 401, 403. To the extent Sabir submits that Kohlmann’s
testimony about terrorist activities in Saudi Arabia – derived in part from Internet sources –
was too speculative to be probative, he misses the point of that testimony. The issue for jury
consideration was not whether the government could prove that al Qaeda was, in fact,
responsible, for particular terrorist acts in Saudi Arabia, but whether it could reasonably be
inferred that a person such as Sabir, who had lived in Saudi Arabia for a year, and who
proposed to support al Qaeda’s efforts there by serving as the organization’s on-call doctor,
would know that he was providing support to an organization that engaged in terrorism.
Kohlmann’s testimony as to generally available information about al Qaeda’s terrorist
activities in Saudi Arabia was more probative than prejudicial on this knowledge element of
§ 2339B. The prosecution’s failure to adduce specific evidence of Sabir’s familiarity with
the information went to the weight of Kohlmann’s testimony rather than to its admissibility.
We similarly reject Sabir’s relevance challenge to Kohlmann’s testimony about al
59
Qaeda training camps. Such testimony was plainly relevant to mens rea as Sabir was charged
both with conspiring with Shah to provide martial arts training to mujahideen and with
agreeing to be on call to treat wounded mujahideen who sustained injuries either “in training”
or in actual al Qaeda “operation[s].” GX 906T at 48.
d. Kohlmann’s Testimony Did Not Reach Beyond the
Government’s Rule 16 Proffer
Sabir faults the district court for allowing Kohlmann to testify beyond the scope of the
government’s proffer. See Fed. R. Crim. P. 16(a)(1)(G). The claim is patently meritless.
The testimony about which Sabir complains, relating to “Islam, fatwa, and the 9/11 attacks,”
Appellant’s Br. at 72, easily fell within the government’s broad proffer, outlined in a
February 23, 2007 letter, to present evidence about al Qaeda’s “origins,” “history,”
“structure,” “leadership,” “instructional methods,” “operational logistics,” and “acts of
terrorism,” United States v. Sabir, 2007 WL 1373184, at *2 & n.5 (quoting government
proffer letter). Similarly meritless is Sabir’s challenge to Kohlmann’s expertise to discuss
“Islam, fatwa, and the 9/11 attacks,” to the limited extent of providing background on al
Qaeda. Even if Kohlmann had testified beyond the government’s Rule 16 proffer – which
he did not – Sabir fails to show the “violation of a substantial right,” the standard necessary
to secure reversal for such an evidentiary error. United States v. Ebbers, 458 F.3d 110, 122
(2d Cir. 2006).
2. Co-Conspirator Statements
Sabir contends that the admission of tape recorded conversations between co-
60
defendant Shah and confidential informant Saeed or undercover Agent Soufan violated both
Fed. R. Evid. 801(d)(2)(E) and the Sixth Amendment’s Confrontation Clause as construed
by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004).34 Neither argument
is persuasive.
a. Shah’s Recorded Conversations with the Informant and the
Undercover Were Admissible Under Fed. R. Evid. 801(d)(2)(E)
We review the district court’s decision to admit Shah’s recorded conversations as co-
conspirator statements under Fed. R. Evid. 801(d)(2)(E) only for clear error. See United
States v. Al-Moayad, 545 F.3d 139, 173 (2d Cir. 2008). In urging such error, Sabir submits
that the recordings were inadmissible because he did not participate in the conversations at
issue and was not mentioned in the course thereof. The argument is flawed in two respects.
First, it misstates the facts. Shah’s recorded conversations with Saeed and Soufan repeatedly
referenced Sabir both by his first name “Rafiq,” see, e.g., GX 801T at 1; GX 812T at 1, and
by his profession as a “doctor,” see, e.g., GX 807T at 3; GX 902T at 23-24. Second, and
more important, it misstates the standard for admissibility under Rule 801(d)(2)(E).
Rule 801(d)(2)(E) states that out-of-court declarations are not excludable as hearsay
if they are made “by a coconspirator of a party during the course and in furtherance of the
conspiracy.” To admit an out-of-court declaration under this rule, the district court must find
by a preponderance of the evidence “(a) that there was a conspiracy, (b) that its members
34
While Sabir only references Shah’s recorded conversations with the informant in
mounting this challenge, we understand the argument also to reach Shah’s recorded
conversations with the undercover agent.
61
included the declarant and the party against whom the statement is offered, and (c) that the
statement was made during the course of and in furtherance of the conspiracy.” United
States v. Al-Moayad, 545 F.3d at 173 (internal quotation marks omitted); see also Bourjaily
v. United States, 483 U.S. 171, 175-76 (1987). Where, as here, Shah and Sabir are the only
alleged conspirators, the district court was required to find that Shah made the statements at
issue in furtherance of a then-existing conspiracy between these two men.35 Such a finding
was amply supported by the recorded statements of both defendants. See Bourjaily v.
United States, 483 U.S. at 175-76; United States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996)
(observing that hearsay statements may themselves be considered in determining
admissibility under Rule 801(d)(2)(E), provided there is some independent corroboration of
defendant’s participation in conspiracy).
At the very start of his first recorded meeting with Saeed, on September 20, 2003,
Shah identified “Rafiq” as his “partner,” a term implying some agreement between the two
men to pursue a common objective. GX 801T at 1 (explaining that “me and Rafiq are real
tight” and “you always would see me with Rafiq”); see Trial Tr. at 600. Shah made plain
35
Where statements are made in the course of an existing conspiracy in which the
defendant later joins, those statements may be admitted against him, even though he was not
a member of the conspiracy at the time the statements were made, on the theory that he
“assumes the risk for what has already happened” in the scheme. 5 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence § 801.34[4][a], at 801-84 (Joseph M.
McLaughlin ed., 2d ed. 2007) (“Statements made before a conspiracy was actually formed
fall outside the realm of Rule 801(d)(2)(E).”); see also United States v. Badalamenti, 794
F.2d 821, 828 (2d Cir. 1986) (holding that statements of co-conspirators were admissible
against defendant under Rule 801(d)(2)(E), “even if made before he joined the conspiracy”).
62
that the partnership extended to Shah’s martial arts efforts, explaining that Sabir owned the
building in Harlem where Shah operated his martial arts training center. See id. Thereafter,
in recorded conversations with Saeed and Agent Soufan about joining al Qaeda, Shah
repeatedly emphasized his partnership with Sabir and indicated that the two men would come
to the terrorist organization as a “package . . . me and a doctor.” GX 807T at 3-4; see GX
902T at 23 (stating “I come like with a pair, me and a doctor”). Shah explained that he knew
Sabir’s intentions and did not need to speak further with him to make this commitment, a
statement suggestive of an existing agreement between the two men. See GX 902T at 23.
Moreover, on May 20, 2005, when Sabir met with Agent Soufan, he provided
independent and explicit confirmation for what Shah had been saying to the informant and
undercover agent: that Sabir and Shah had long discussed and agreed to support terrorists’
pursuit of jihad.
UC: And, I’m, I will offer you that [the oath of allegiance to al
Qaeda], brother, but it is up to you.
SABIR: So, you know this brother [Shah] here and I, I think, we have, I
have to go with my brother because we have, we have talked
about this for a long time, and because we have talked about it
a long time, I feel it, uh, uh, not just that my spirit is with it, . .
. but that if I didn’t do it I will be abandoning my brother. And
the very thing we agreed upon it in the first place. . . . [W]e are
partners.
GX 906T at 110 (emphasis added).36
36
Elsewhere in the May 20, 2005 conversation, Sabir revealed how the men reached
this agreement to support terrorism in the late 1990s. Sabir explained that he and Shah had
originally planned to travel to Afghanistan to assist the mujahideen. See GX 906T at 17
63
This record plainly supports the district court’s finding that, as of the time of the first
recorded conversation at issue in 2003, Shah and Sabir had already reached a tacit
understanding to use their respective professional expertise to support jihad, and that Shah’s
statements before the May 20, 2005 meeting, like Sabir’s statements at that meeting, were
made in furtherance of that agreement.
Sabir submits further that Shah’s recorded statements were inadmissible under Rule
801(d)(2)(E) because they were not made in furtherance of the conspiracy, but instead were
“idle chatter.” United States v. Paone, 782 F.2d 386, 390 (2d Cir. 1986). We are not
persuaded. Shah was plainly seeking to persuade someone whom he thought could admit
him to al Qaeda that he and Sabir were trustworthy and would, in fact, provide material
assistance to that organization. That Shah’s statements were sometimes vague and rambling
does not alter the fact that, in their entirety, they were made in furtherance of an agreement
with Sabir to provide material support for terrorism. In any event, Sabir does not show that
any possible digressions from the conspiratorial purpose in Shah’s statements were
prejudicial. See United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009).
b. The Admission of Shah’s Statements Did Not Violate Sabir’s
(“That was an aspiration, that was a hope, a dream that we had to go move to the
mountains.”). This statement comported with Shah’s earlier remark to Agent Soufan that,
as early as 1998, the two men had “really wanted to get over to Afghanistan,” where they
wanted to “be right in it.” GX 902T at 5. Sabir explained that he “never . . . made . . . any
definite move” with respect to Afghanistan because he “did not see a clear way” to provide
assistance. GX 906T at 17-18. Sabir stated that it was in the late 1990s, when the men were
experiencing problems at a Bronx mosque, that they recognized the advantage of “people
working within their expertise” in aid of jihad. Id. at 65.
64
Right to Confrontation
Sabir’s reliance on Crawford v. Washington, 541 U.S. 36, to mount a Confrontation
Clause challenge to the receipt of Shah’s statements is foreclosed by United States v. Saget,
377 F.3d 223 (2d Cir. 2004), in which this court held that “a declarant’s statements to a
confidential informant, whose true status is unknown to the declarant, do not constitute
testimony within the meaning of Crawford,” id. at 229. As then-Judge Sotomayor explained
in writing for the Saget panel, Crawford instructs that the critical factor in identifying a
Confrontation Clause concern is “the declarant’s awareness or expectation that his or her
statements may later be used at a trial.” Id. at 228. Here, there is no question that in his
conversations with Saeed and Soufan, Shah was unaware that he was speaking to agents for
the government or that his statements might later be used at a trial. Because Shah’s recorded
statements are thus not testimonial in nature, this case is on all fours with Saget, and Sabir’s
Confrontation Clause challenge fails. See also United States v. Logan, 419 F.3d 172, 178
(2d Cir. 2005) (“In general, statements of co-conspirators in furtherance of a conspiracy are
non-testimonial.”).
3. Prior Inconsistent Statement
Prosecution witness Tony Richardson testified that while participating in Shah’s
martial arts classes in Maryland, he met a doctor introduced to him as “Dr. Sabir or Sabir
Rafiq or Rafiq Sabir” with whom he spoke briefly. Trial Tr. at 230-31.37 Asked on cross-
37
Richardson made no in-court identification of Sabir as the person to whom he was
introduced.
65
examination if he was positive as to the name, Richardson answered “No, not positive. I
don’t even remember his name totally. It was Dr. Sabir Rafiq or Rafiq Sabir, something to
that effect.” Id. at 232. Defense counsel then sought to impeach Richardson by reading
aloud from grand jury testimony in which Richardson ascribed the name Rafiq Sabir or Sabir
Rafiq to a friend in Texas.
Q. [Do you know] Rafiq Sabir?
A. Do not – Sabir Rafiq.
Q. Rafiq Sabir. Do you know a Sabir Rafiq?
A. My friend in Texas, which I don’t think he knows Mahmud at all. I think his
middle name is Rafiq Sabir, Sabir Rafiq, I’m not sure.
Id. at 235. The district court overruled the prosecution’s objection to this line of questioning,
but did not permit Sabir to offer the grand jury testimony into evidence as a prior inconsistent
statement under Fed. R. Evid. 801(d)(1)(A). Sabir submits that the latter ruling was
erroneous. We identify no abuse of discretion, much less violation of a substantial right, in
the district court’s decision. See United States v. Bah, 574 F.3d 106, 116 (2d Cir. 2009);
United States v. Mercado, 573 F.3d at 141.
Rule 801(d)(1) of the Federal Rules of Evidence states that an out-of-court statement
is not hearsay if “[t]he declarant testifies at the trial . . . and is subject to cross-examination
concerning the statement, and the statement is . . . inconsistent with the declarant’s testimony,
and was given under oath subject to the penalty of perjury . . . .” Richardson’s grand jury
testimony indicating that he had a friend in Texas whose “middle name is Rafiq Sabir [or]
66
Sabir Rafiq,” was not, strictly speaking, inconsistent with his trial testimony that the doctor
whom he briefly met at Shah’s martial arts class was named “Dr. Sabir or Sabir Rafiq or
Rafiq Sabir.” As the district court correctly observed, if Richardson had given a negative
answer at trial to a question about knowing anyone else named Sabir beside this doctor, then
the grand jury testimony might have presented an inconsistency. But no such question was
ever asked.
In any event, Sabir can hardly demonstrate that he was prejudiced by the district court
ruling. The grand jury testimony was not relevant for its truth, i.e., whether Richardson in
fact had a friend in Texas, part of whose name was Rafiq Sabir or Sabir Rafiq. Rather, it was
relevant for the fact that, when asked if he recognized the name Rafiq Sabir, Richardson did
not mention any doctor whom he met with Shah, but only a friend in Texas. This fact was
adequately placed before the jury by Richardson’s acknowledgment of the grand jury
statement. It did not require actual admission of the grand jury record.
4. State-of-Mind Evidence
Sabir submits that the district court erred in refusing to admit statements he made to
federal authorities on October 5, 2004, when entering the United States from Saudi Arabia.
According to a contemporaneous FBI report, see Appellee’s Br. Add. 1-3, these statements
recounted Sabir’s personal, educational, and employment background; the circumstances
prompting his move from the United States to Saudi Arabia; his personal and professional
activities in Saudi Arabia; his financial support for various causes; his appreciation for life
in the United States compared to Saudi Arabia; and his intent to return to live in the United
67
States at some unspecified future time and to “make things better” in this country. In one
statement, Sabir professed not to condone suicide bombing. Sabir submits that these
statements were admissible because they evidenced a state of mind not disposed to provide
material support to al Qaeda.
We note that both before the district court and on appeal Sabir presented this argument
in a conclusory fashion. The one-paragraph argument in his appellate brief does not cite –
much less discuss – the relevant rule, see Fed. R. Evid. 803(3), or our precedents construing
its scope, see, e.g., United States v. Cardascia, 951 F.2d 474 (2d Cir. 1991); United States
v. DiMaria, 727 F.2d 265 (2d Cir. 1984) (Friendly, J.). No matter. Even if Sabir could
demonstrate that his October 5, 2004 statements were admissible under Rule 803(3), a point
we need not here decide, we would not grant him a new trial because any error was plainly
harmless.
Sabir testified at length about his views regarding the United States, al Qaeda, and its
methods. See, e.g., Trial Tr. at 1491 (testimony of Sabir that “[s]uicide is wrong in all
circumstances in Islam”). Further, he was permitted to introduce into evidence a document
he wrote in February 2005, which described his vision for an “Islamic Justice Organization”
dedicated to “ensur[ing] justice for Muslims” by lawful means. See id. at 1554, 1558. The
government’s contrary evidence of Sabir’s intent to commit the charged crimes, however,
was clearly overwhelming. The tape recorded meeting of May 20, 2005, supra at [5-6, 21,
27-31], reveals Sabir swearing loyalty to support the terrorist organization by providing
medical treatment for its wounded combatants in Saudi Arabia. On this record, we easily
68
conclude that the exclusion of Sabir’s October 5, 2004 statements was harmless. See United
States v. Song, 436 F.3d 137, 140 (2d Cir. 2006) (deeming harmless erroneous exclusion of
state of mind evidence where defendant “was permitted to testify in sufficient detail as to his
theory of the case” and government presented overwhelming evidence of guilt); United
States v. Lawal, 736 F.2d 5, 9 (2d Cir. 1984) (same).
5. Rule 403 Objections
Sabir submits that the district court erred in admitting evidence that was more
prejudicial than probative, specifically: (a) certain materials seized from Shah pertaining to
Mohammad Shareef, a radical Muslim cleric; (b) testimonial evidence regarding a 2000
incident in which certain individuals – not including Shah or Sabir – attempted to take
control of a Poughkeepsie mosque by force; and (c) testimony about mujahideen activities
in Bosnia. We are not persuaded.
a. The Shareef Materials
Because Sabir raised no objection to the Shareef materials at trial, we review the
admission of that material only for plain error. See United States v. Yousef, 327 F.3d at 121.
The point requires little discussion because Sabir’s conclusory challenge fails to demonstrate
error in the admission of evidence indicating that Shah held radical views on Islam. As Shah
would manifest in his various recorded statements, such views fueled the formation of the
charged conspiratorial agreement to provide material support for jihad. Further, Sabir does
not even attempt to show how the admission of such evidence – in a case in which the
conspirators are recorded swearing allegiance to al Qaeda – affected his substantial rights or
69
undermined “‘the fairness, integrity, or public reputation of judicial proceedings.’” United
States v. Payne, 591 F.3d 46, 66 (2d Cir. 2010) (quoting United States v. Olano, 507 U.S.
725, 732 (1993)).
b. The Poughkeepsie Mosque Incident
We review the remaining two rulings for abuse of discretion, see United States v. Bah,
574 F.3d at 116; United States v. Mercado, 573 F.3d at 141, and detect none here.
Sabir submits that the district court committed Rule 403 error in permitting
prosecution witness Anwar Kearney, imam of a mosque in Poughkeepsie, to testify that in
2000, a group of persons who followed the teachings of Mohammad Shareef attempted to
take over the mosque by force of arms. Although Shah, who taught martial arts at the
mosque, associated with this group, he did not participate in the armed takeover attempt. Nor
did Sabir, who occasionally visited Shah in Poughkeepsie at about this time.
The district court concluded that the evidence was nevertheless probative of the
evolution of Shah’s state of mind in embracing jihad. We cannot identify abuse of discretion
in this conclusion. Shah’s evolution as a militant supporter of jihad was relevant in the trial
of Sabir because the two men were close, longstanding “partners,” purportedly so familiar
with each other’s minds that one could speak for the other in supporting jihad. GX 906T at
110. Indeed, at the May 20, 2005 meeting at which the partners swore allegiance to al
Qaeda, Sabir acknowledged that he and Shah had been discussing jihad for a long time and
referenced past experiences that informed their agreement to support jihad by working within
their respective areas of expertise. See id. at 65, 110.
70
c. Mujahideen Activities in Bosnia
Sabir submits that testimony from Yahya Muhammad, a longtime friend of Shah,
about the support he provided to mujahideen in Bosnia was more prejudicial than probative.
In fact, the evidence was relevant to understanding why, in about 2003, Sabir would ask
Muhammad for advice about traveling abroad to provide medical assistance to mujahideen.
See Trial Tr. at 286-87. Such evidence, in turn, tended to demonstrate that when Sabir
subsequently offered to serve as an on-call doctor for al Qaeda combatants in Saudi Arabia,
he was acting with the knowledge necessary to support the counts of conviction.
E. Summation Issues
Sabir contends that the district court erred by (1) precluding him from arguing in
summation that the government had targeted him for prosecution based on his religion, while
allowing the government to make a contrary argument; and (2) permitting the government
to vouch for its witnesses. In support of the first argument, Sabir points us to the following
excerpt from the summations.
[DEFENSE COUNSEL]: Dr. Sabir is an important piece on the chess board.
He’s an important piece to the FBI investigation, and he’s an important piece
to Shah. Everybody wants Dr. Sabir.
[THE GOVERNMENT]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]: . . . . [T]here’s a very interesting discourse that
occurred between myself and [Agent] Soufan while he was testifying about
whether or not there was an increase in investigation by the FBI of the Muslim
community post 9/11. Well, common sense, when you talk about common
sense, you all know that there was, and to sit here and try to tell you that there
71
wasn’t just belies what the agenda is.
[THE GOVERNMENT]: Objection.
THE COURT: Sustained. Ladies and gentlemen, the decision of the
government to investigate an individual or the decision of a grand jury to indict
an individual is none of your concern. The only concern this jury has is
whether or not the government has or has not proved each element[] of the
crimes charged beyond a reasonable doubt.
Trial Tr. at 2417-18.
A sidebar conference ensued, at which the district court cautioned defense counsel to
refrain from arguing selective prosecution to the jury, advising that such a defense should be
raised with the court in a post-trial motion.38 Defense counsel initially complied with this
instruction, but then more subtly returned to the selective prosecution theme in attacking the
FBI for “decid[ing] which way the case [against Sabir] was going” based on an internal
perception of what was “correct” without regard to whether “reality” demonstrated
otherwise. Id. at 2431.
The government responded with the following rebuttal argument:
Then, there was the argument that the government is out looking for sinners.
The government picked and chose Dr. Rafiq Sabir as some sort of trophy
blaming the government for its efforts [in] fighting terrorism; and this from a
defendant who said, I support all anti-terrorism efforts, that is, except for if it
involves the use of undercovers, except if it involves people infiltrating the
38
No selective prosecution motion was ever filed in this case. In an extended
colloquy prior to the defense summation, the district court had already cautioned counsel
about the impropriety of arguments insinuating that Sabir had been improperly targeted for
prosecution, particularly in light of the fact that investigating agents had no knowledge of
Sabir until he was introduced into the case by co-defendant Shah, and given that the defense
had withdrawn any claim of entrapment.
72
mujahideen.
...
Well, the government, as the Judge told you, is not on trial. It’s not a game of
shifting blame to the government and blaming agents for what they do, their
jobs, putting their lives on the line and finding terrorism wherever it is.
You heard the testimony of both the agents in this case; former Agent Ali
Soufan, and Special Agent Brian Murphy. Both served this country with
distinction. Both told you that they followed the investigation where it went.
Where it went and where it ended up was May 20, 2005. With the defendant
taking bayat to bin Laden.
Id. at 2487-88.
Following rebuttal, Sabir unsuccessfully moved for a mistrial, arguing that the
government had improperly raised the issue of selective prosecution and vouched for its own
witnesses. Reviewing the district court’s decision for abuse of discretion, see United States
v. Smith, 426 F.3d 567, 571 (2d Cir. 2005), we identify none.
First, we identify no error in the district court’s challenged rulings with respect to the
defense summation. As we have explained, a selective prosecution defense alleges “a defect
in the institution of the prosecution,” and as such “is an issue for the court rather than the
jury.” United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997) (internal quotation marks
omitted); see also Fed. R. Crim. P. 12(b)(3)(A).
Second, we identify no error in the government’s rebuttal. The law has long
recognized that summations – and particularly rebuttal summations – are not “detached
exposition[s],” United States v. Wexler, 79 F.2d 526, 530 (2d Cir. 1935), with every word
“carefully constructed . . . before the event,” Donally v. DeChristoforo, 416 U.S. 637, 646-47
(1974). Precisely because such arguments frequently require “improvisation,” courts will
73
“not lightly infer” that every remark is intended to carry “its most dangerous meaning.” Id.To be sure, the prosecution may not “appeal to . . . passion” in urging a guilty verdict,
United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975), but it may be passionate in arguing
that the evidence supports conviction, see United States v. Wexler, 79 F.2d at 530(recognizing that summations are “inevitably charged with emotion”). As a consequence,
a defendant who seeks to overturn his conviction based on alleged prosecutorial misconduct
in summation bears a “heavy burden.” United States v. Feliciano, 223 F.3d 102, 123 (2d Cir.
2000) (internal quotation marks omitted). He must show more than that a particular
summation comment was improper. See generally United States v. Newton, 369 F.3d 659,
680 (2d Cir. 2004) (observing that “prosecutors’ comments standing alone” will rarely
warrant overturning conviction (internal quotation marks omitted)); United States v.
Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (noting that “it is a ‘rare case’” in which
improper summation comments by prosecution will be so prejudicial as to warrant new trial
(quoting Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir. 1990)). He must show that the
comment, when “viewed against the entire argument to the jury,” United States v. Bermudez,
529 F.3d 158, 165 (2d Cir. 2008) (internal quotation marks omitted), and “in the context of
the entire trial,” was so severe and significant as to have “substantially prejudiced” him,
depriving him of a fair trial, United States v. Newton, 369 F.3d at 680; see United States v.
Locascio, 6 F.3d 924, 945 (2d Cir. 1993). That is not this case.
In his own summation, defense counsel repeatedly ignored court warnings and
insinuated to the jury that Sabir was the victim of selective prosecution. While it was the
74
court’s role, not the prosecution’s, to instruct the jury that this question was not before them,
the government hardly deprived Sabir of a fair trial by briefly alluding to these improper
arguments in reminding them of the judge’s instruction. See generally United States v.
Tocco, 135 F.3d 116, 130 (2d Cir. 1998) (“[W]here the defense summation makes arguments
and allegations against the government, the prosecutor may respond to them in rebuttal.”);
United States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992) (noting that defense argument may
“‘open the door’ to otherwise inadmissible prosecution rebuttal”); United States v. Marrale,
695 F.2d 658, 667 (2d Cir. 1982) (noting that “prosecutor is ordinarily entitled to respond to
the evidence, issues, and hypotheses propounded by the defense”).
Similarly, we identify no error in the prosecution’s response to the defense attack on
its agents’ credibility and competency. See United States v. Perez, 144 F.3d 204, 210 (2d
Cir. 1998) (recognizing prosecutors’ “greater leeway” in commenting on own witnesses’
credibility after defense attack). While prosecutors may not strike “foul” blows they may
strike “hard” ones, Berger v. United States, 295 U.S. 78, 88 (1935), and the challenged
arguments stayed on the permissible side of this line, cf. United States v. Young, 470 U.S.
1, 18 (1985) (holding that prosecutor may not imply that extrinsic evidence not before jury
supports witness’s credibility); United States v. Drummond, 481 F.2d 62, 64 (2d Cir. 1973)
(holding that prosecutor may not make issue of “own credibility” (internal quotation marks
omitted)); accord United States v. Rivera, 971 F.2d at 884. While routine credibility attacks
do not generally call for references to the life-threatening nature of law enforcement work,
where, as in this case, the defense referenced the danger inherent in dealing with co-
75
defendant Shah to question the undercover agent’s credibility or competency in certain
respects, the government’s brief allusion to agents “putting their lives on the line” was within
the bounds of fair response.
F. Juror Misconduct
In the course of jury deliberations, the district court learned that Juror #8, using the
electronic search engine “Google,” had discovered that co-defendant Tarik Shah had pleaded
guilty to unspecified charges and then communicated that fact to other jurors. Sabir submits
that the district court erred in failing to grant his pre-verdict motion for a mistrial or his post-
verdict motion for a new trial, see Fed. R. Crim. P. 33, based on this juror misconduct. We
are not persuaded.
We review for abuse of discretion the district court’s handling of alleged juror
misconduct, see United States v. Vitale, 459 F.3d 190, 197 (2d Cir. 2006); its denial of a
mistrial, see United States v. Smith, 426 F.3d 567, 571 (2d Cir. 2005); and its denial of a
Rule 33 motion for a new trial, see United States v. McCourty, 562 F.3d 458, 475 (2d Cir.
2009). In doing so, we accord the district court “broad flexibility,” mindful that addressing
juror misconduct always presents “a delicate and complex task,” United States v. Cox, 324
F.3d 77, 86 (2d Cir. 2003) (internal quotation marks omitted), particularly when the
misconduct arises during deliberations, see United States v. Thomas, 116 F.3d 606, 618 (2d
Cir. 1997). Further, we recognize that the district court is “in the best position to sense the
atmosphere of the courtroom as no appellate court can on a printed record.” United States
v. Abrams, 137 F.3d 704, 708 (2d Cir. 1998) (internal quotation marks omitted).
76
While the law presumes prejudice from a jury’s exposure to extra-record evidence,
see Remmer v. United States, 347 U.S. 227, 229 (1954); United States v. Greer, 285 F.3d
158, 173 (2d Cir. 2002), that presumption may be rebutted by a “showing that the extra-
record information was harmless,” Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994); see
United States v. Schwarz, 283 F.3d 76, 99 (2d Cir. 2002) (“[N]ot every instance of a juror’s
exposure to extrinsic information results in the denial of a defendant’s right to a fair trial.
Many such instances do not.”). The necessary inquiry is “objective,” Bibbins v. Dalsheim,
21 F.3d at 17 (internal quotation marks omitted), and focuses on two factors: (1) the nature
of the information or contact at issue, and (2) its probable effect on a hypothetical average
jury, see United States v. Schwarz, 283 F.3d at 99.
The effect inquiry properly considers the “entire record” in making an objective
assessment of possible prejudice. United States v. Weiss, 752 F.2d 777, 783 (2d Cir. 1985).
This includes circumstances surrounding the jurors’ exposure to the information. See United
States v. Greer, 285 F.3d at 173. But a court may not reach further to inquire into the
subjective effect of the information on jurors’ mental processes or on the jury’s deliberations.
This limitation, memorialized in Fed. R. Evid. 606(b), is grounded in the deeply rooted view
that “the secrecy of deliberations is essential to the proper functioning of juries.” United
States v. Thomas, 116 F.3d at 618-19 (collecting authorities). In any event, a district court
must be careful that it does not itself “create prejudice by exaggerating the importance and
impact” of extra-record information. United States v. Abrams, 137 F.3d at 708.
With these principles in mind, we conclude that the district court acted well within its
77
discretion in denying Sabir’s mistrial and new trial motions. The district court reasonably
considered the “nature” of the extrinsic evidence – an Internet report of Shah’s guilty plea
– in light of Sabir’s summation concession that Shah was, in fact, guilty: “[I]f this was a case
about Tarik Shah, I wouldn’t even have got up. Tarik Shah is guilty.” Trial Tr. at 2406. The
district court concluded that, in these circumstances, Sabir was unlikely to be harmed by
extrinsic information entirely consistent with his own concession.
In urging otherwise, Sabir submits that the defense summation did not indicate the
actual outcome of Shah’s case; was not itself “evidence” of the crime; and, in contrast to the
extra-record information, was not hearsay. The second and third points warrant little
discussion, as the district court’s assessment of the nature of the information was not based
on its admissibility. Nor did the district court fault defense counsel’s summation or excuse
the juror misconduct. As for the first point, Sabir notes a difference without a distinction for
purposes of identifying prejudice. Whatever harm might have ensued from the jury’s
discovery of Shah’s guilty plea in a case where Sabir’s defense did not concede his co-
defendant’s guilt, where, as here, such a concession was made, the jury’s discovery that a
guilty co-defendant had, in fact, pleaded guilty, was unlikely to deprive Sabir of a fair trial.
That conclusion is only reinforced by the district court’s questioning of the jurors.
When Juror #8 was asked if anything would prevent her from being fair and impartial in
judging Sabir’s case, she replied that there was not. Asked if she would be able to follow the
court’s instruction to judge the case solely on the basis of the trial evidence, Juror #8
answered, “Definitely.” Id. at 2694. We have recognized that, in appropriate circumstances,
78
confirmation of a juror’s ability to follow cautionary instructions can indicate the lack of
harm from misconduct. See United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994); accord
United States v. Abrams, 137 F.3d at 708.
Sabir suggests that the district court erred in reaching this conclusion without further
asking Juror #8 whether she had “Googled” Sabir himself. We disagree. Such a leading
question might itself have “create[d] prejudice” by implying that a broader search could yield
further information about Sabir. See United States v. Abrams, 137 F.3d at 708. The district
court acted well within its discretion in instead asking Juror #8 more generally whether she
had uncovered any information beyond the fact of Shah’s guilty plea and, upon receiving a
negative response, making no further inquiry particular to Sabir.
We further conclude that the district court did not abuse its discretion in declining to
question the remaining jurors individually. Addressing the jury as a whole, the district court
instead repeated certain instructions potentially implicated by Juror #8’s actions. These
specifically included the following:
It is your function in this case to decide the issues of fact. Your decision on
the issues of fact is to be based solely on the evidence. Nothing I say is
evidence. Nothing any of the lawyers say is evidence. Questions by
themselves are not evidence. Objections are not evidence. Testimony that has
been excluded or which you’re told to disregard is not evidence. The evidence
consists of the sworn testimony of the witnesses and the exhibits that have
been received into evidence for your consideration. Also, in some instances
there were facts the lawyers agreed to or facts that I instructed you to find.
. . . You may not draw any inference, favorable or unfavorable, toward the
government or the defendant from the fact that any person in addition to the
defendant is not on trial here. You also may not speculate as to the reasons
why other persons are not on trial. Those matters are wholly outside your
79
concern and have no bearing on your function as jurors.
...
Now, ladies and gentlemen, is there any juror who is unable or unwilling to
follow those instructions? Anyone?
Trial Tr. at 2698-2700. Because no juror indicated that he or she would have a problem
following these instructions, see United States v. Thai, 29 F.3d at 803, the district court
reasonably concluded from the totality of the circumstances that the misconduct at issue did
not warrant either a mistrial or new trial, see United States v. Greer, 285 F.3d at 173; United
States v. Abrams, 137 F.3d at 708.
III. Conclusion
To summarize, we conclude that:
1. Title 18 U.S.C. § 2339B is not overbroad or otherwise unconstitutionally vague as
applied to Sabir’s case.
2. The trial evidence was sufficient to support Sabir’s conviction for conspiring and
attempting to provide material support to a known terrorist organization.
3. The jury selection in Sabir’s case did not violate the Equal Protection Clause as
construed in Batson v. Kentucky, 476 U.S. 79.
4. With respect to Sabir’s various evidentiary challenges:
a. the district court did not abuse its discretion in admitting expert testimony
pertaining to al Qaeda pursuant to Fed. R. Evid. 702;
b. the admission of recorded conversations between co-defendant Shah and either
an informant or undercover agent was supported by Fed. R. Evid. 801(d)(2)(E) and did not
80
violate Sabir’s constitutional right to confrontation;
c. the district court acted within its discretion in allowing cross-examination about
a witness’s prior statements in the grand jury but in refusing to admit the grand jury transcript
as evidence of a prior inconsistent statement pursuant to Fed. R. Evid. 801(d)(1)(A);
d. we need not decide whether the district court erred in holding that evidence of
Sabir’s professed state of mind on October 5, 2004, was inadmissible under Fed. R. Evid.
803(3) because any error would, in any event, be harmless in this case; and
e. there is no merit to Sabir’s claims that various evidence should have been
excluded under Fed. R. Evid. 403 as more prejudicial than probative.
5. The district court’s summation rulings did not deprive Sabir of a fair trial.
6. The district court acted well within its discretion in denying Sabir’s motions for a
mistrial and new trial because the record plainly supports its finding that Sabir was not
prejudiced by juror exposure to extrinsic Internet information about co-defendant Shah.
The judgment of conviction is AFFIRMED.
81
REENA RAGGI, Circuit Judge, concurring in part:
With respect to Part II.D.4 of the court’s opinion, I certainly agree with the conclusion
that if there was any error in the district court’s failure to admit Sabir’s October 5, 2004
statements to federal authorities when entering the United States from Saudi Arabia, such
error was harmless beyond a reasonable doubt. See ante at [68-69]. I would go further,
however, and conclude that there was no error because Sabir’s October 5, 2004 statements
did not, in fact, satisfy the requirements of Federal R. Evid. 803(3). To explain this
conclusion, it is necessary to discuss those requirements in some detail.
Rule 803(3) recognizes a hearsay exception for
[a] statement of the declarant’s then existing state of mind, emotion, sensation,
or physical condition (such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant’s will.
All hearsay exceptions are rooted in one or more conditions thought to ensure sufficient
reliability to permit a factfinder to forego the law’s preferred means for testing evidence:
cross-examination. In the case of Rule 803(3), that condition is “contemporaneity,” i.e., the
statement must evidence the declarant’s “then existing state of mind,” a circumstance
presumed to reduce a declarant’s chance for reflection and, therefore, misrepresentation. See
United States v. Cardascia, 951 F.2d 474, 487-88 (2d Cir. 1991); see also 2 McCormick on
Evidence § 274, at 267 (Kenneth S. Broun ed., 6th ed. 2006) (“[T]he special assurance of
reliability for statements of present state of mind rests upon their spontaneity and resulting
probable sincerity. The guarantee of reliability is assured principally by the requirement that
1
the statements must relate to a condition of mind or emotion existing at the time of the
statement.” (footnote omitted)).
Contemporaneity, of course, is not a foolproof safeguard of reliability. As
commentators have observed, “few things are easier than to misrepresent one’s thoughts.”
4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:70, at 596 (3d ed.
2007) (observing that “state-of-mind exception offers less assurance against deception than
some others that also require immediacy”). This has prompted a number of courts to
condition Rule 803(3) admissibility on the presence of “no suspicious circumstances
suggesting a motive for the declarant to fabricate or misrepresent his or her thoughts.” 5 Jack
B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 803.05[2][a], at 803-31
& n.4 (Joseph M. McLaughlin ed., 2d ed. 2007) (collecting cases); see 4 Mueller &
Kirkpatrick, supra, § 8:71, at 613-14 & n.30 (collecting cases); see also 6 John H. Wigmore,
Evidence in Trials at Common Law § 1732, at 160 (James H. Chadbourn ed., rev. ed. 1976)
(providing for statement of then existing state of mind to be excluded if “circumstances
indicate plainly a motive to deceive”). This court, however, is not among them.
In United States v. DiMaria, 727 F.2d 265 (2d Cir. 1984) (Friendly, J.), we observed
that the Federal Rules of Evidence create hearsay exceptions by “categories,” id. at 272. We
thus concluded that if a statement fits an identified category, no further “finding of probable
credibility by the judge” is generally required to apply the hearsay exception. Id.(recognizing that credibility of statement may be considered in connection with business
record and residual hearsay exceptions). Thus, the self-serving nature of a statement
2
expressing a state of mind does not automatically preclude application of Rule 803(3). That
concern is properly considered by the jury in deciding what weight to accord the statement.
See id. at 271; accord United States v. Cardascia, 951 F.2d at 487.
Although this court does not superimpose any credibility condition on Rule 803(3),
we have in no way relaxed the rule’s stated requirement for assuring reliability:
contemporaneity. Nor have we absolved statements satisfying Rule 803(3) from the
relevancy requirements of Fed. R. Evid. 401 and 403. See generally 2 McCormick on
Evidence, supra, § 274, at 267-69 n.8 (observing that contemporaneity requirement of Rule
803(3) works together with relevance rules in determining admissibility of statement).
United States v. DiMaria presented no contemporaneity or relevance concerns. The
defendant’s spontaneous utterance to approaching FBI agents – “I only came here to get
some cigarettes real cheap” – easily satisfied Rule 803(3)’s contemporaneity requirement in
that it purported to reveal the declarant’s then existing state of mind with respect to the very
conduct in which he was engaged. 272 F.2d at 270-71. Such a statement was relevant
because defendant’s mens rea at the precise moment of his utterance was an element of the
charged crime. See id. at 271. Further, we assigned a high probative value to the statement
because the government was relying on a presumption to carry its mens rea burden. See id.
at 272 (observing that admission of statement was particularly warranted because “the
Government is relying on the presumption of guilty knowledge arising from a defendant’s
possession of the fruits of a crime recently after its commission”).
DiMaria, however, had no occasion to consider contemporaneity and relevance in the
3
circumstances presented here: a statement of state of mind made on one occasion offered as
evidence of state of mind on another occasion. The proffered statement may express the
declarant’s state of mind at the time made, but that does not make it relevant to mens rea at
a different time. The law nevertheless recognizes the possibility that an expression of state
of mind on one occasion may be relevant to state of mind at a later time where the statement
reflects “a continuous mental process.” United States v. Cardascia, 951 F.2d at 488. Such
continuity effectively extends the “contemporaneity” of the statement beyond the moment
of pronouncement. Cf. id. (recognizing possibility of continuity extending contemporaneity
required by Rule 803(3) but not finding principle applicable to statement offered to support
backward inference1). For example, experience and common sense indicate that someone
who professes to be a baseball fan on Monday is likely to be of the same state of mind on
Tuesday. Statements of intent also may reflect a continuing mental process. See 2
McCormick on Evidence, supra, § 274, at 270 (observing that assertion of then-existing
intent to go on business trip next day “will be evidence not only of the intention at the time
of the statement, but also of the same purpose the next day when the declarant is on the
road”).
Not all statements describing a declarant’s mental state, however, warrant an inference
1
Backward looking inferences generally run afoul of Rule 803(3)’s express exclusion
of “statement[s] of memory or belief to prove the fact remembered or believed.” See also
4 Mueller & Kirkpatrick, supra, § 8:71, at 603-06 (discussing issues associated with drawing
forward and backward inferences as to mens rea from statement made at time distinct from
that at which conduct at issue occurred).
4
of continuity. Some expressions of emotion last a lifetime, while others may be unlikely to
persist long after their triggering events. Some professions of state of mind may be too vague
or tenuous to support an inference of continuity, particularly where there is a significant lapse
of time between the declaration and the mens rea at issue. Intervening events may also signal
a possible change in the declarant’s state of mind. This court has thus held that “[w]hether
a statement is part of a continuous mental process and therefore admissible under the present
state of mind exception” is “a question for the trial court.” United States v. Cardascia, 951
F.2d at 488. As with any determination of fact, we will not disturb a trial court’s finding as
to likely continuity in the absence of clear error. Cf. United States v. Monteleone, 257 F.3d
210, 221 (2d Cir. 2001) (applying clear error review to factual findings underlying trial
court’s decision to admit statement under Fed. R. Evid. 801(d)(2)(E)); United States v.
Gigante, 166 F.3d 75, 82 (2d Cir. 1999) (same).
Precisely because a finding of continuity effectively extends the contemporaneity of
a statement beyond common understanding – and, therefore, expands the application of Rule
803(3) – the question merits careful judicial attention. Commentators have appropriately
suggested that district courts should consider “all the factors on both sides of the equation”
in determining the likely continuity of a proffered statement of state of mind, including “the
possibility of bad faith” by the declarant. 5 Weinstein & Berger, supra, § 803.05[2][c][i], at
803-36. This is not contrary to DiMaria, which precludes judicial inquiry into the credibility
of the expressed state of mind when contemporaneity is not at issue. But where
contemporaneity is in question, depending on whether a state of mind expressed on one
5
occasion is likely to have continued through to another time relevant to the case, a district
court’s consideration of the totality of the circumstances properly includes any indications
as to whether the proffered statement was made in good or bad faith. Other factors that may
also inform the inquiry include, but are not limited to, what the statement itself actually says
about the declarant’s state of mind and how clearly, the lapse of time between the statement
and the conduct for which mens rea is at issue in the case, and any intervening life events or
statements by the declarant signaling a possible break in mental process or change of mind.
See generally 4 Mueller & Kirkpatrick, supra, § 8:71, at 604.
With these principles in mind, I identify no error in the exclusion of Sabir’s October
5, 2004 statements. As the district court correctly recognized, the vast majority of those
statements recounted “things that happened in the past,” Trial Tr. at 1343, i.e., “fact[s]
remembered,” Fed. R. Evid. 803(3), and, thus, fall outside the rule’s exception. As for the
few statements purporting to express Sabir’s then existing state of mind – i.e., his professed
appreciation for life in the United States compared to Saudi Arabia, his stated intent to return
to live in the United States and to “make things better” in this country, and his observation
that he did not condone suicide bombing – I note that Sabir’s state of mind on October 5,
2004, the date of declaration, was not really at issue in the case. To be sure, that date fell
within the time frame of the charged conspiracy. But conspirators, like other persons, do not
pursue their objectives at all times. Certainly, the government did not contend that any of
Sabir’s actions on October 5, 2004, were in furtherance of the conspiracy. Much less did it
rely on those actions in attempting to prove a mens rea element of the crime. Rather, it
6
focused on Sabir’s words and actions at the May 20, 2005 meeting with the undercover agent
to prove a mens rea intent on supporting terrorism. To the extent Sabir offered his October
5, 2004 statements as evidence of a state of mind not disposed to support al Qaeda, the
requirements of contemporaneity and relevance required the district court to decide whether
Sabir likely maintained that state of mind through that date.
This conclusion is not at odds with our holding today on Sabir’s Rule 801(d)(2)(E)
challenge because a trial court’s focus in deciding what evidence to admit is different from
a jury’s focus in deciding the question of guilt. While the trial court was required to find the
existence of a conspiracy throughout the period 2003-05 to admit Shah’s recorded statements
against Sabir under Rule 802(d)(2)(E), it was required to make that finding only by a
preponderance. Meanwhile, the jury could not convict Sabir of conspiracy except upon proof
beyond a reasonable doubt, but it could make that finding with respect to any time within the
charged period. See United States v. Heimann, 705 F.2d 622, 666 (2d Cir. 1983) (upholding
conviction where conspiracy proved some time within charged period). Thus, where, as in
this case, all parties focused on May 20, 2005, as the critical date for determining Sabir’s
participation in the charged conspiracy and related attempt offense, the trial judge could
appropriately consider whether Sabir’s earlier professed state of mind likely continued to that
date in deciding whether the statement was admissible under Rules 401, 403, and 803(3).
The record not only fails to support such a finding of continuity; it compels a contrary
conclusion. As the district court observed, Sabir’s October 5, 2004 statements were vague
and self-serving, raising legitimate concerns about the likelihood of his maintaining the state
7
of mind they purportedly described into the next year.2 [T 1118] Quite apart from these
concerns, however, the record provides conclusive proof that Sabir’s purported state of mind
on October 5, 2004, was not his state of mind on May 20, 2005. That proof is, of course, the
tape recording of the May 20 meeting. Far from indicating that Sabir was not inclined to
support al Qaeda, the recording showed him swearing fealty to this terrorist organization and
promising to support it by serving as an on-call doctor for its wounded combatants in Saudi
Arabia. On this record, I think it would be impossible to find that the October 5, 2004
statements expressed a then-existing state of mind that continued through May 20, 2005. In
the absence of such continuity, the October 5, 2004 statements failed to satisfy both the
contemporaneity requirement of Rule 803(3) and the relevancy requirements of Rules 401
and 403. For these reasons, I think the district court properly excluded the statements from
evidence, and I would reject Sabir’s Rule 803(3) challenge as without merit.
2
The district court alluded to the self-serving nature of Sabir’s October 5, 2004
statements not only in refusing to admit those statements under Rule 803(3), but also in
rejecting Sabir’s argument that the statements were admissible under Rule 801(d)(1)(B) to
rebut a charge of recent fabrication in his trial testimony. [T 1630-35] See United States v.
Al-Moayad, 545 F.3d at 167 (explaining that “Rule 801(d)(1)(B) . . . includes a fundamental
temporal requirement: ‘The statement must have been made before the declarant developed
[an] alleged motive to fabricate.’” (quoting United States v. Forrester, 60 F.3d 52, 64 (2d Cir.
1995))). I note that Sabir does not challenge the district court’s 801(d)(1) ruling on appeal.
8
Dearie, Chief District Judge, dissenting in part.
I write to voice my strong disagreement with the majority’s conclusion that
the evidence is legally sufficient to sustain the attempt conviction. I otherwise
concur.
This is not an attempt. I agree that application of the familiar “substantial
step” formula must be made on a case-by-case basis and that in some cases the
adequacy of the proof may not be readily determined, but this is not such a case. I
agree that the distinction between various forms of material support may prove
meaningful in some cases, but again this is not such a case. Whatever the label, the
substantive crime was so remote in time, place and objective that one is left only to
speculate as to what, if anything, would have happened had Sabir in fact been in a
position to pursue the conspiratorial goal.
Without the benefit of meaningful input from the litigants or trial court,
moreover, the majority appears to expand the reach of “personnel”1 to include
those who do nothing beyond “pledge[] to work under the direction of the
1
Title 18 U.S.C. § 2339B(h) disallows prosecution “in connection with the term ‘personnel’
unless [a] person has knowingly provided, attempted to provide, or conspired to provide a
foreign terrorist organization with 1 or more individuals (who may be or include himself) to
work under that terrorist organization’s direction or control.” As we reaffirm in response to
Sabir’s challenge, this “limiting definition . . . answers [any] vagueness concerns,” rendering the
provision constitutional. Humanitarian Law Project v. Holder, 130 S. Ct. 2705, 2721 (2010).
organization.” Majority Op., ante at [47]. This conclusion is without precedent
and hinges upon what is, in my view, a seriously flawed interpretation of the
material support statutes.
I.
There is no question that, construed in the government’s favor, the evidence
supports the conspiracy count. A rational jury could have found that, at the single
meeting with his co-conspirator and the undercover agent, Sabir indeed agreed to
provide medical support to wounded al Qaeda somewhere in Saudi Arabia at some
point in the future. Fairly stated, the majority further concludes that once Sabir
offered these services, he took a substantial step toward becoming the
organization’s “on call” doctor. The remaining evidence to support the attempt
conviction is Sabir’s swearing an oath to al Qaeda, which the government
acknowledges is not a criminal act, and his providing contact numbers, which the
decisions of this Circuit confirm is not a substantial step toward the commission of
a crime.
The majority is correct that a “substantial-step analysis necessarily begins
with a proper understanding of the crime being attempted.” Majority Op., ante at
[36]. Count Two of the indictment charged Sabir with attempting to provide
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“material support” to al Qaeda in the form of “personnel, training, and expert
advice and assistance, as those terms are defined” in 18 U.S.C. §§ 2339A-B, “to
wit . . . attempt[ing] to provide medical support to wounded jihadists.” (4th
Superseding Indictment, 05 cr 673, Dkt. #89, at 3-4.) The majority, however, does
not affirm on the ground that Sabir’s actions were an attempt to provide actual
medical support to wounded jihadists in Saudi Arabia. Nor could it, in light of this
Circuit’s established precedent, discussed below. Rather, the majority focuses
elsewhere, concluding that “[w]hether or not Sabir’s May 20, 2005 actions were a
substantial step in the provision of expert medical services to terrorists,” Sabir’s
actions on this date “were a substantial step in the provision of Sabir himself as
personnel.” Majority Op., ante at [43] (emphasis supplied).
The rule is clear enough “that we may affirm on any grounds for which there
is a record sufficient to permit conclusions of law.” Chesley v. Union Carbide
Corp., 927 F.2d 60, 68 (2d Cir. 1991) (internal quotation marks omitted). There is
no dispute that the evidence is sufficient to establish the element of intent, leaving
only the import of Sabir’s conduct to be determined. The majority concludes that a
reasonable juror could find, based on the evidence, that Sabir took a substantial
step toward providing himself as personnel. Going further, the majority suggests
that Sabir’s conduct would have sufficed to provide himself as personnel had
-3-
circumstances been as he believed, a novel question that the litigants never
expressly considered, much less briefed.2 I address these matters in turn.
II.
The issue before us is whether Sabir’s meeting with an undercover agent in
the Bronx, “swearing an oath of allegiance to al Qaeda” and “providing . . . contact
numbers for al Qaeda members to reach him in Saudi Arabia” constitute a
substantial step toward his providing personnel (i.e., himself) to work under al
Qaeda’s direction and control. Majority Op., ante at [40]. Although “substantial
step” analysis is often “fraught with difficulty,” United States v. Ivic, 700 F.2d 51,
66 (2d Cir. 1983), in this case, the question is straightforward and readily answered
in the negative.
I find no case, in any court, that even remotely supports the majority’s
conclusion that a defendant attempts a crime simply by agreeing to commit the
2
During and after trial, the government advanced the view that the attempt count in this case
regards actual medical support. See Gov’t Summation, 5/15/07 Trial Tr., 05 cr 673, at 2373-74
(“How did Rafiq Sabir try to provide material support? In this case, his expert advice and
assistance in the form of his medical skills.”); Gov’t Sentencing Mem., 05 cr 673, Dkt. #174, at 3
(“Sabir took a substantial step toward providing expert advice and assistance – i.e., his medical
skills – to al Qaeda.”). In defending the conviction on appeal, the government speaks of
“material support” generally. Gov’t Br. at 58. At oral argument, however, the government
confirmed that Sabir attempted to provide “medical services,” then offered to perform additional
research to present its “best case” that Sabir might have been found guilty of attempting to
provide personnel.
-4-
crime and providing a phone number. Nor does the government, in its
single-paragraph ipse dixit defense of the conviction, offer any authority to support
its position. The majority opinion cites established precedents that recite the
recognized law of attempt, but none of these cases, regardless of outcome, justifies
the majority’s position. Quite the contrary.
First, the cases routinely hold that mere preparation is not an attempt. See,
e.g., United States v. Manley, 632 F.2d 978, 987 (2d Cir. 1980) (“A substantial
step must be something more than mere preparation, yet may be less than the last
act necessary before the actual commission of the substantive crime.”). As the
majority notes, a substantial step must be part of “‘a course of conduct planned to
culminate in [the] commission of the crime.’” Ivic, 700 F.2d at 66 (quoting Model
Penal Code § 5.01(1)(c)). It is the conduct that is dispositive. Here, however,
there was little to none. There was just talk that was, for the most part, prompted
by the undercover agent. There is no evidence of any activity whatsoever that
might indicate that Sabir had indeed embarked upon a determined path to
proximate criminality in providing material support.
Second, in the cases in which this Circuit has sustained a finding of attempt,
“‘the accused’s conduct ha[d] progressed sufficiently to minimize the risk of an
-5-
unfair conviction.’” Manley, 632 F.2d at 988 (“‘[A]n attempt is necessarily
predictive . . . .’”) (quoting United States v. Busic, 549 F.2d 252, 257 n.9 (2d Cir.
1977)). For example, in United States v. Stallworth, 543 F.2d 1038, 1041 (2d Cir.
1976), the case in which we adopted the substantial step formulation of the Model
Penal Code, we found evidence of a substantial step toward robbery because the
defendants cased the target bank, discussed their plan of attack, armed themselves,
stole ski masks and surgical gloves, and actually moved toward the bank to commit
the crime. We held that “[a]ll that stood between appellants and success was a
group of F.B.I. agents and police officers” whose timely intervention “probably
prevented not only a robbery but possible bloodshed.” Id. at 1041. Likewise, in
Manley, 632 F.2d at 988, we held that the defendant took a substantial step toward
purchasing drugs because he drove to an acquaintance’s home late at night with a
large amount of cash that was roughly equivalent to the value of the cocaine found
at the house. In affirming that conviction, we aptly observed that “it is hard to
conceive of any additional preliminary steps which [the defendant] could have
taken short of the actual acquisition of the narcotics.” Id. at 989. And in United
States v. Crowley, 318 F.3d 401, 408 (2d Cir. 2003), we found sufficient evidence
of an attempt to commit a sexual act by force after the defendant pinned his victim
to the bed, put his hand in her shorts and sought to penetrate her with his fingers.
-6-
By comparison, the meager evidence of any action by Sabir to further the criminal
objective falls far short of a substantial step.
The majority also relies on Ivic, 700 F.2d at 67, a case that explores the
outer boundaries of what actions constitute a substantial step. In that case, having
already acquired explosives and devised a plan of attack, one defendant authorized
the bombing of a travel agency and the other reconnoitered the site. Judge
Friendly found that the evidence of attempt was “sufficient, although barely so.”
Id. (emphasis supplied). If casing the location and stockpiling explosives is
“barely” an attempt, how can Sabir’s limited conduct possibly be?
The principal case the majority invokes, United States v. Delvecchio, 816
F.2d 859, 861-62 (2d Cir. 1987), compels the conclusion that no attempt occurred
here. The majority correctly cites this decision as “hold[ing] that evidence of a
verbal agreement alone, without more, is insufficient as a matter of law to support
an attempt conviction,” id. at 862, but finds that “by promising to be on call in
Saudi Arabia to treat wounded al Qaeda members[] and by providing private and
work contact numbers,” Majority Op., ante at [40], Sabir engaged in a substantial
step sufficient to sustain a conviction for attempting to provide himself as
-7-
personnel. Closer attention to Delvecchio’s facts illuminates the flaw in the
majority’s reasoning.
In Delvecchio, we found the evidence of an attempt to purchase drugs
insufficient even though Delvecchio and his partner had sought out suppliers,
actually an undercover agent and an informant, then agreed to buy five kilograms
of heroin from them at 10:00 pm the following evening for $195,000 per kilogram
on a specific street corner in Manhattan. At one of two dinner meetings, the
Delvecchio defendants, like Sabir, gave their contact numbers to the agent and
informant. Id. at 861. Without hesitation, however, we concluded that the
defendants had not attempted to purchase the narcotics, because their “plan to
possess heroin had only advanced to the stage of meeting with their purported
suppliers to work out the terms of the deal.” Id. at 862 (“[E]vidence of a verbal
agreement alone, without more, is insufficient as a matter of law to support an
attempt conviction.”). The government failed to show that the defendants
“performed any overt act to carry out the agreed upon” transaction; the defendants
had not, for example, “set out for the meeting site” or “attempted to acquire the
almost one million dollars necessary to complete the purchase.” Id. We upheld
the defendants’ conspiracy convictions alone.
-8-
It cannot seriously be disputed that the Delvecchio defendants’ actions, like
those of the defendants in every case mentioned above, were far closer to an
attempt at the respective crime than were Sabir’s. The Delvecchio defendants
worked out every aspect of an imminent drug deal. Sabir, by contrast, viewing the
facts in the government’s favor, agreed to be “on call” as a doctor halfway around
the world under unspecified conditions at some indefinite time in the future. Sabir
never had the chance to demonstrate whether his actions would have been
consistent with his conspiratorial pledge. Indeed, Sabir and the undercover did not
even “work out the terms of the deal.” Id. at 862.
Before Sabir could have placed himself under al Qaeda’s direction or
control, moreover, he needed to return to Riyadh. He “[a]ssum[ed] that” he could
“get back,” which required locating or replacing his passport and enlisting the aid
of the consulate. GX906T at 14. In addition to these administrative hurdles, Sabir
had to overcome restrictions on his mobility and find a place in which to treat
wounded mujahideen. Sabir told the undercover that he was being forced to live
on hospital grounds, id. at 66-70, agreed that he could not treat wounded jihadists
at the hospital, id., doubted his ability to leave the confines of his hospital “without
people watching [his] every movement,” id. at 70-71, and volunteered that he had
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no means of transportation, id. at 16.3 The Delvecchio defendants, in stark
contrast, completed all such preliminary arrangements, but even then the panel
readily concluded that no attempt had occurred. 816 F.2d at 862.
The majority purports to distinguish Delvecchio in a number of ways.
Initially, the majority notes that “[w]hereas an attempt to possess focuses on a
defendant’s efforts to acquire, an attempt to provide focuses on his efforts to
supply, a distinction that necessarily informs” the attempt analysis. Majority Op.,
ante at [37]. This distinction is not meaningful. To demonstrate, suppose that the
Delvecchio defendants’ convictions were based upon an agreed-upon supply of
drugs to an undercover agent, rather than an acquisition from the agent. In such a
case, would a verbal agreement plus a contact number equal an attempt? We held
otherwise in United States v. Rosa, 11 F.3d 315, 339-40 (2d Cir. 1993). Because
the Rosa defendant “did not produce any heroin for the proposed sale,” nor had he
“made any effort to obtain heroin . . . in order to sell it to” the agent, we once again
held the evidence insufficient to sustain an attempt conviction. Id. at 340-41. Rosa
illustrates that, whether acquiring or providing, a defendant who follows an
3
Although Sabir told the undercover that he could “leave the job” if “living on the hospital
property is big enough of a problem,” GX906T at 69, the undercover mentioned Sabir’s “very
helpful” hospital ID, to which Sabir responded: “I guess that it means that if they are forcing me
to live in the hospital property, then I might just have to submit to that and to try to, uh, find
another way.” Id. at 67-69.
-10-
agreement with inactivity while the criminal objective remains beyond reach
cannot be guilty of an attempt. See Rosa, 11 F.3d at 340 (emphasizing the
defendant’s statement that his own supplier “might be in jail”). In either case, the
pivotal issue is proximity – in time, place or readiness – to commission of the
charged offense.
To support its conclusion, the majority poses the hypothetical situation in
which we are to assume that Sabir is not a doctor but rather an al Qaeda recruiter
who recruits doctors like Sabir. The majority is correct that, under those
circumstances, the recruiter could be found guilty of attempting to provide
personnel. Such conduct, which could be accomplished locally, would be real,
measurable and meaningful. See Stallworth, 543 F.2d at 1040 n.5 (noting that
“‘soliciting an innocent agent to engage in conduct constituting an element of the
crime’” may be a substantial step sufficient to uphold an attempt conviction)
(quoting Model Penal Code 5.01(2)(g)). Simply stated, the recruiter in the
hypothetical has done something. He has provided a service to the organization.
His culpability is not a matter of conjecture. Cf. United States v. Awan, 384 F.
App’x 9, 13 (2d Cir. 2010) (affirming conviction for conspiracy to provide
personnel where testimony and recorded conversations “provided sufficient
evidence from which a rational jury could find that [the defendant] was recruiting
-11-
for” a foreign terrorist organization). By attending a meeting and volunteering his
services, the actual Sabir, unlike the hypothetical recruiter, has done nothing more
than reiterate agreement.4
Finally, and most importantly, the majority proposes that Sabir went beyond
attending a meeting and agreeing to serve: he “took a step essential to provide al
Qaeda with personnel in the form of an on-call doctor” by “provid[ing] the means
by which mujahideen in Riyadh could reach that doctor at any time.” Majority
Op., ante at [42]. This observation might have some significance if Sabir’s
“enlistment” came at or near some jihadist camp or battleground, and he was
situated, equipped and ready to assist; but the location in question was almost
7,000 miles away, and no preparations to be “on call” had been made or even
discussed,5 leaving the actual provision of material support entirely a matter of
speculation and surmise. If, to borrow the majority’s phrase, “a step essential” to
sustain an attempt conviction were provision of a contact number for resultant
4
The majority’s conclusion that these actions comprise a substantial step, thus distinguishing this
case from Delvecchio and Rosa, begs the analysis, since those opinions focus on the respective
defendants’ actions (or lack thereof) after their initial agreements with the undercover agents.
Sabir did not, for instance, call multiple subsequent meetings, describe his criminal plan in the
utmost detail, settle most but not “all of the specifics” and “continue[] to negotiate with the
government agent[]until his arrest prevented him from doing so.” United States v. Jonsson, 15
F.3d 759, 762 (8th Cir. 1994) (finding such actions sufficient to distinguish Delvecchio).
5
The undercover agent initially requested Sabir’s phone number in case “there is anything you
[i.e., Sabir] need over there.” GX906T at 40 (emphasis supplied).
-12-
transactions, then Delvecchio must have been wrongly decided. Drawing all
conceivable inferences in favor of the government, there is simply no way to
square these facts with the cases cited and conclude that an attempt has been
established.
III.
Just as troubling as the majority’s “substantial step” analysis is its
suggestion that a person actually completes the crime of providing “material
support in the form of personnel as soon as he pledges to work under the direction
of the organization.”6 Majority Op., ante at [47]. In so suggesting, the majority
enters largely untested statutory waters.
The few courts to rule on sufficiency challenges relating to the term
“personnel” – or even to construe the term – have required a level of engagement,
activity or compliance far surpassing Sabir’s someday, someplace commitment
6
In footnote [19] to the majority opinion, Judge Raggi expresses her own view that had the
undercover agent instead been an al Qaeda operative, the evidence might well support a finding
that Sabir actually provided himself as personnel, and not merely attempted to do so. Although
the majority states that it does not reach that question, the suggestion that Sabir’s actions might
have completed the crime likewise appears in connection with the majority’s definition of
“reserve personnel.” Majority Op., ante at [46-47]. The identity of the meeting’s third
participant, however, has no bearing on the attempt analysis. Had a bona fide high-level
recruiter been at that meeting, the breadth of the provable conspiracy would have widened; but
without a substantial step, as courts until now have construed the requirement, no attempt would
have occurred.
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here.7 Compare United States v. Abu-Jihaad, 600 F. Supp. 2d 362, 401 (D. Conn.
2009) (communicating sensitive defense information to terrorist organization on
single occasion was insufficient evidence of providing self as “personnel,” without
evidence that the organization requested such information pursuant to a prior
“arrangement[]” and that the defendant “did as requested”), aff’d on other grounds,
— F.3d —, 2010 WL 5140864 (2d Cir. Dec. 20, 2010); United States v. Warsame,
537 F. Supp. 2d 1005, 1018 (D. Minn. 2008) (contacting overseas al Qaeda
associates while in North America, without more, “would be inadmissible as
evidence of guilt [absent] additional conduct that would constitute provision of
‘personnel’”) with United States v. Taleb-Jedi, 566 F. Supp. 2d 157 (E.D.N.Y.
2008) (teaching language classes, translating documents and working in
7
The statutory provision at issue, enacted in 2004, prohibits a person from providing (or
attempting to provide) “himself” as personnel to a terrorist organization, and adds the
requirement that personnel must work under the organization’s “direction or control.” 18 U.S.C.
§ 2339B(h). “Statutory definitions control the meaning of statutory words, of course, in the
usual case.” Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949) (authorizing
deviations from the general rule in the “unusual case” or where a term is defined with less than
“‘watch-like precision’”). Personnel is ordinarily defined as the “body of people employed in an
organization, or engaged in a service or undertaking, esp. of a military nature” (Oxford English
Dictionary Online, http://www.oed.com/view/Entry/141512?redirectedFrom=personnel#), or the
“body of persons employed by or active in an organization, business, or service” (American
Heritage Dictionary of the English Language 1311 (4th ed. 2000)). I offer these definitions not,
as the majority suggests, to override the statute, but to inform the question of what in fact
suffices to provide oneself as personnel, a “blank to be filled.” Burgess v. United States, 553
U.S. 124, 130-32 (2008) (evaluating a statutorily defined term in “context” and in light of how
the term “is commonly defined”). The language in § 2339B(h), moreover, is not a traditional
definition, which appear in § 2339B(g) (defining “classified information,” “financial institution,”
“training,” “expert advice and assistance” and other terms). Rather, § 2339B(h) bars prosecution
unless certain requirements are met; nothing suggests that these preconditions are conclusive of
liability. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n.14 (1985) (holding that
where a statutory “definition” contains requirements for liability rather than simply defining the
term, “[t]he implication is that while [such] acts are necessary, they may not be sufficient”).
-14-
organization’s political division at Iraqi base potentially equaled providing self as
“personnel”); United States v. Lindh, 212 F. Supp. 2d 541, 580 (E.D. Va. 2002)
(training with and fighting alongside terrorist groups in Afghanistan potentially
equaled providing self as “personnel”); United States v. Goba, 220 F. Supp. 2d
182, 193-94 (W.D.N.Y. 2002) (attending al Qaeda training camp for five weeks
potentially equaled providing selves as “personnel”); cf. United States v. Stewart,
590 F.3d 93, 115 (2d Cir. 2009) (relaying repeated messages to and from
imprisoned terrorist regarding ongoing conspiracy was “‘active participation’” that
equaled providing prisoner as “personnel”); Awan, 384 F. App’x at 17 (soliciting
another “for training and carrying out attacks in India on behalf of” terrorist
organization equaled conspiring to provide recruit as “personnel”); United States v.
Marzook, 383 F. Supp. 2d 1056, 1065 (N.D. Ill. 2005) (recruiting another “to join
Hamas and make trips to the Middle East” to scout attack locations potentially
equaled providing recruit as “personnel”).
These courts consistently distinguish between activity and passivity, in each
case criminalizing the former and not the latter. The majority states that “it may
frequently be the case that a defendant who intends to provide a terrorist
organization with personnel also intends for the personnel to provide the
organization with services.” Majority Op., ante at [42]. That, I submit, is an
-15-
understatement. To suggest that Sabir became al Qaeda’s doctor in Riyadh after
the May 2005 meeting in the Bronx, thus facilitating more dangerous missions,
requires logical leaps that the record below simply will not bear. 8 To serve the
statute’s objectives without overreaching, some post-agreement activity must be
shown to establish an attempt to provide oneself as personnel.
Further, by transforming offers to provide services into attempted provision
of personnel, the majority’s holding may sanction multiple punishments for a
single offense.9 An attempt requires a substantial step toward criminality; a
conspiracy requires agreement with another wrongdoer. On these facts, however,
the majority substitutes evidence of agreement and intent for evidence of the
substantive crime. See, e.g., United States v. Gore, 154 F.3d 34, 46 (2d Cir. 1998)
8
The majority cites to Congress’s finding, made in connection with § 2339B’s adoption, that
“[f]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct
that any contribution to such an organization facilitates that conduct.” Humanitarian Law, 130 S.
Ct. at 2724 (quoting AEDPA § 301(a)(7), 110 Stat. 1214, 1247 (1996)). This finding is “best
read to reflect a determination that any form of material support” to a terrorist organization,
including “ostensibly peaceful aid,” should be barred. Id. at 2724-25 (rejecting the argument that
contributions which advance “only the legitimate activities of the designated terrorist
organizations” are permissible). As such, I join in the unanimous holding that § 2339B, by its
terms, criminalizes the practice of medicine (or the doctor himself) that Sabir agreed to provide
to al Qaeda. The record below, however, does not support the conclusion that Sabir is guilty of
attempting or committing the substantive offense.
9
Although Sabir did not raise a double jeopardy challenge, nor could he have raised one, to an
apparent conclusion of law announced for the first time on appeal, multiple sentences for the
same offense are cognizable as plain error. See United States v. Coiro, 922 F.2d 1008, 1013-15
(2d Cir. 1991). Sabir’s attorney did unsuccessfully argue below for concurrent sentences,
moreover, since the conspiracy and substantive charges “are actually encompassed in the same
conduct.” (11/28/07 Sentencing Tr., 05 cr 673, at 13-14.)
-16-
(disallowing multiple sentences for violations of a single statute where, given the
“narrow set of facts” presented, “no longer does each offense require proof of a
fact that the other does not”). As the majority concludes, at the May 2005 meeting,
Sabir “formalize[d] his promise” to work for al Qaeda. Majority Op., ante at [41].
Thus, it is hard to see how the conspiracy and attempt convictions meaningfully
differ. See Iannelli v. United States, 420 U.S. 770, 785-86 & n.18 (1975)
(reaffirming that “the real problem” in such cases “is the avoidance of dual
punishment”).
Conspiracy charges unaccompanied by a completed substantive crime are
relatively rare, and can be troubling when the available evidence leaves one to
speculate whether the criminal objective would have been realized. In this case,
such concern is compounded by the need to find the line between radical beliefs
and radical action.10 The law of attempt has evolved to take the guesswork out of
finding that line. At the one meeting Sabir attended, he indeed chanted the mantra
of the terrorist, led by the government agent and inspired by his co-defendant. But
10
In the context of 18 U.S.C. § 2339A, this Court has noted that “[b]y applying . . . the
prohibition against providing ‘personnel’ . . . to a circumstance in which the defendants provided
themselves, the government created a situation in which the defendants could be punished for, in
effect, providing themselves to speak out in support of the program or principles of a foreign
terrorist organization, an activity protected by the First Amendment.” Stewart, 590 F.3d at 118(contrasting this situation with that of providing another as personnel, an activity that “does not
carry the same risk with its corresponding constitutional implications”). While giving full import
to § 2339B(h)’s limiting definition, to which the Stewart panel cited, I submit that punishing
do-nothing “personnel” for violating the statute’s substantive provisions “in effect” punishes
such actors for aligning with a terrorist organization.
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we are left to wonder whether his apparent enthusiasm would have, or even could
have, led to action on his part. That should not be, and no imaginable view of the
evidence removes this uncertainty.
This Court observed in Crowley that “[t]he problem faced by the drafters [of
the Model Penal Code] was that to punish as an attempt every act done to further a
criminal purpose, no matter how remote from accomplishing harm, risks punishing
individuals for their thoughts alone, before they have committed any act that is
dangerous or harmful.” 318 F.3d at 408. I submit that the majority has done just
that by abandoning the notion, fundamental to attempt jurisprudence, that we
punish criminal deeds and not thoughts or intentions. The majority declares,
however, that the crime at issue “is of a quite different sort.” Majority Op., ante at
[37]. Whatever the “sort” of offense, Sabir was not charged with mere
membership in al Qaeda or for being sympathetic to some radical Islamic cause.
Signing on to the al Qaeda roster of loyalists (as reprehensible as that may be) is
not, and could not be, the crime at issue, since “Section 2339B does not criminalize
mere membership in a designated foreign terrorist organization. It instead
prohibits providing ‘material support’ to such a group.” Humanitarian Law, 130 S.
Ct. at 2718; see also id. at 2730 (“[T]he statute does not penalize mere association
with a foreign terrorist organization.”); 18 U.S.C. § 2339B(i) (“Nothing in this
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section shall be construed or applied so as to abridge the exercise of rights
guaranteed under the First Amendment to the Constitution of the United States.”).
The majority asserts that “a reasonable jury could have concluded that,”
based on his May 20, 2005 actions, “Sabir crossed the line from simply professing
radical beliefs or joining a radical organization to attempting [the] crime” of
providing himself to work under al Qaeda’s control. Majority Op., ante at [42].
The only evidence tending to show such control is the oath. But the litigants, and
presumably the majority, agree that the oath alone is not a basis for
imprisonment.11 At best, the oath reflects an agreement and intention to follow
directions, but “mere intention to commit a specified crime does not amount to an
attempt.” Manley, 632 F.2d at 988 (internal quotation marks omitted). Despite the
majority’s apparent preoccupation with Sabir’s state of mind, the independent
evidence of attempt in this case remains a pair of phone numbers. Those
evidentiary morsels cannot sustain the substantive conviction.
As recent history tragically illustrates, provision of material support of any
form to a terrorist organization emboldens that organization and increases the
11
In the government’s own words: “[T]he bayat pledge, the pledge itself, by Rafiq Sabir was not
in and of itself a crime. . . . The bayat itself is not the crime, but it is compelling powerful
evidence of those crimes. It shows exactly what Rafiq Sabir was thinking. It shows his sincere
commitment to aid al Qaeda.” 5/15/07 Trial Tr., 05 cr 673, at 2337.
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likelihood of future terrorist attacks. That is why Congress enacted statutes
criminalizing such activity. Simply stated, however, the majority has at once
unwisely re-written the law of attempt, raised freedom-of-association concerns and
possibly treaded on double jeopardy protection, “opening the door to mischievous
abuse.” United States v. Johnpoll, 739 F.2d 702, 715 (2d Cir. 1984). Regardless
of Sabir’s inclination, as a matter of law, any step he took toward that end was
insubstantial and any support he furnished unquestionably immaterial.
In the end, a man stands guilty, and severely punished, for an offense that he
did not commit. Therefore, I respectfully dissent.
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