United States v. Abdelhaleem Ashqar ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3879
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A BDELHALEEM H ASAN A BDELRAZIQ A SHQAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 00978-3—Amy J. St. Eve, Judge.
A RGUED A PRIL 7, 2009—D ECIDED O CTOBER 2, 2009
Before P OSNER, R IPPLE and W OOD , Circuit Judges.
W OOD , Circuit Judge. Abdelhaleem Hasan Abdelraziq
Ashqar, a Palestinian, was convicted of obstruction of
justice and criminal contempt after he refused to answer
certain questions before a grand jury. Because the grand
jury was investigating alleged terrorist acts of Hamas,
the district court applied the terrorist enhancement in
U.S.S.G. § 3A1.4. As a result, Ashqar’s advisory Guideline
sentence range on one count jumped from 24-30 months
2 No. 07-3879
to 210-262 months. The district court chose a point roughly
in the middle of those extremes, 135 months’ imprison-
ment.
While Ashqar challenges his conviction—arguing that
the district court erred by refusing to give his proposed
jury instruction defining “corruptly”—he devotes most
of his brief on appeal to various challenges to his sentence.
He argues that applying the terrorist enhancement
violates his Sixth Amendment right to a jury trial because
it increases his sentence based on judicially-found facts
and on conduct for which he was acquitted. Alternatively,
even if it was constitutional to apply the enhancement,
he argues that the district court failed to make the neces-
sary predicate findings: that Ashqar intended to
promote a federal crime of terrorism, that the grand
jury was investigating a specific terrorist act, and that
this crime satisfied the definition of “federal crime of
terrorism” in 18 U.S.C. § 2332b(g)(5). Finally, Ashqar
contests the procedural reasonableness of his sentence by
arguing that the district court neglected some of his
arguments under 18 U.S.C. § 3553(a).
After a careful review of the transcripts and evidence,
we find that the district court committed no errors. We
therefore affirm Ashqar’s conviction and sentence.
I
For over ten years, the Federal Bureau of Investigation
has been investigating Ashqar for his role as a communica-
tion and financial conduit for the terrorist organization
No. 07-3879 3
Hamas. That investigation included direct meetings
between Ashqar and the FBI during the 1990s, wiretaps
of Ashqar’s telephone and fax machine, a search of
Ashqar’s home, and a review of Ashqar’s financial re-
cords. In February 1998, a grand jury sitting in the South-
ern District of New York subpoenaed Ashqar to testify
about his dealings with Hamas. Ashqar appeared but
refused to answer questions. He was found in civil con-
tempt and jailed, but he was released after he staged
a hunger strike. The FBI’s investigation into Hamas
continued, and Ashqar was subpoenaed for a second
time in June 2003 to appear before a grand jury sitting in
the Northen District of Illinois. On June 25, 2003, Ashqar
appeared before the grand jury and again refused to
answer any questions about his dealings with Hamas.
With few exceptions, Ashqar responded to any question
posed by the Assistant U.S. Attorney (“AUSA”) or the
grand jury by reading a prepared statement that summa-
rized his reasons for refusing to testify. The AUSA ex-
plained to Ashqar that the grand jury was investigating
terrorist activities by Hamas, and he provided the citations
for the statutes covering the crimes under investigation.
He told Ashqar that his testimony was “critically impor-
tant” to the grand jury’s investigation and that Ashqar’s
refusal made the investigation “extremely difficult.”
Ashqar persisted in his refusal to talk, however, even after
the court granted Ashqar immunity and ordered him to
testify. At this point, the AUSA warned Ashqar that the
government could prosecute him for criminal contempt
and obstruction of justice. For these crimes, the attorney
cautioned, Ashqar could receive maximum penalties of
4 No. 07-3879
ten years and life, respectively. Ashqar responded by re-
reading his prepared statement. At this point, the court
found Ashqar in civil contempt and the hearing ended.
As the AUSA had warned, the government charged
Ashqar with criminal contempt, in violation of 18 U.S.C.
§ 401(3), and obstruction of justice, in violation of 18 U.S.C.
§ 1503, for his refusal to testify on June 25. It also
charged Ashqar with a racketeering conspiracy, in viola-
tion of 18 U.S.C. § 1962(d), based on his two refusals to
testify. At trial, Ashqar asked the district court to use his
proposed jury instruction to define the term “corruptly”
for purposes of § 1503, but the court instead read the
Seventh Circuit Pattern Jury Instruction. On February 1,
2007, almost three months after the trial began, the jury
found Ashqar guilty of obstruction and criminal
contempt and acquitted him of racketeering.
The sentencing hearing lasted two days and included
testimony by FBI Special Agent David Bray about the
grand jury’s investigation. According to Bray, the grand
jury was investigating Hamas’s support structure in the
United States, especially the people offering financial,
logistical, and communication assistance for Hamas’s
terrorist activities abroad. Bray named several of the
people and terrorist acts under investigation, including
the murder of a Palestinian peace advocate, Sari
Nusseibah; the murder of three Israeli engineers; the
kidnapping and murder of an Israeli soldier, Ilan
Saldoan; and the April 2003 suicide bombing at a bar in
Tel Aviv.
Based on Bray’s testimony, the evidence at trial, and the
transcript of Ashqar’s testimony before the grand jury, the
No. 07-3879 5
district court applied the terrorism enhancement in
U.S.S.G. § 3A1.4 to the range applicable to Ashqar’s
criminal contempt conviction. That enhancement
popped the advisory Guideline range up to 210 to 262
months. After listening to argument from both parties,
including a 90-minute allocution by Ashqar, and consider-
ing the factors in 18 U.S.C. § 3553(a), the district court
imposed a total sentence of 135 months’ imprisonment:
120 months for the obstruction count and 135 months
for the criminal contempt count, to run concurrently.
The district court considered the sentence a balance
between the need for deterrence, the seriousness of the
act, and Ashqar’s lack of a violent history.
II
A
We first dispense with Ashqar’s challenge to his convic-
tion. His only complaint relates to the district court’s
refusal to use his definition of the term “corruptly.” As
long as the district court’s chosen instructions represent
a complete and correct statement of law, we will not
disturb them. United States v. Matthews, 505 F.3d 698, 704
(7th Cir. 2007).
A person obstructs justice if she “corruptly. . . influences,
obstructs, or impedes, or endeavors to influence, obstruct,
or impede, the due administration of justice.” 18 U.S.C.
§ 1503. Ashqar asked the district court to define “cor-
ruptly” as follows:
To act corruptly means to act knowingly and dishon-
estly with an improper motive or with an evil or
6 No. 07-3879
wicked purpose with the specific intent to influence,
obstruct, or impede the due administration of justice.
The court instead chose to use the Seventh Circuit Pattern
Jury Instruction:
To sustain each charge of obstruction of justice, the
government must prove the following propositions:
...
Third, that the defendant’s acts were done corruptly,
that is, with the purpose of wrongfully impeding the
due administration of justice.
As Ashqar acknowledges, we have already approved
the instruction used by the district court. See Matthews, 505
F.3d at 704 (holding that “with the purpose of wrongfully
impeding the due administration of justice” accurately
defines “corruptly”); see also Arthur Andersen LLP v.
United States, 544 U.S. 696, 705 (2005) (noting that the
word “corruptly” is “normally associated with wrongful,
immoral, depraved, or evil” (emphasis added)). More-
over, we considered in Matthews the definition proposed
by Ashqar—“with an improper motive or with an evil or
wicked purpose”—and noted that it unnecessarily nar-
rows the meaning of the term. Matthews, 505 F.3d at 706.
Ashqar argues that Matthews is distinguishable: defendant
Matthews was charged with perjury, obstruction of
justice, and conspiracy, while Ashqar faced a charge of
criminal contempt in addition to obstruction of justice.
Without his definition, he argues, his two charges cover
the same ground (and are thus multiplicitous), because
both have as their crux his refusal to testify. While Ashqar
No. 07-3879 7
might be correct that the crimes in Matthews were slightly
different, this is a distinction of no consequence.
Ashqar’s argument draws on language from United
States v. Macari, 453 F.3d 926 (7th Cir. 2006), that implies
that something is done “corruptly” if the act had as its
“natural and probable effect” the obstruction of justice.
If this is enough to make the act corrupt, Ashqar argues,
then the government has to prove only that Ashqar
knowingly refused to testify—and that is exactly what
it must show to prove criminal contempt. We are not
persuaded. Even if we assume that Ashqar correctly
interprets Macari, his argument ignores the fact that the
district court’s instruction was not addressing the
nexus between the corrupt state of mind and the judicial
proceeding. See United States v. Aguilar, 515 U.S. 593, 599
(1995). Instead, as Aguilar instructs, the court’s instruction
focused on the “intent to influence judicial or grand jury
proceedings.” Id. The crimes of obstruction of justice and
criminal contempt each require proof of at least one
different element: contempt requires proof that Ashqar
disobeyed a court order, 18 U.S.C. § 401(3), while ob-
struction requires proof that Ashqar refused to testify
with the purpose of wrongfully impeding justice. No
multiplicity problem exists, and the district court’s in-
struction fairly and accurately summarized the law. See
United States v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986).
B
We now consider Ashqar’s challenge to his sentence.
Ashqar urges us to find that the district court’s computa-
8 No. 07-3879
tion of his advisory Guideline sentence was incorrect,
because the court should not have applied the terrorism
enhancement in U.S.S.G. § 3A1.4. Doing so, he asserts,
violated his Sixth Amendment right to a jury trial.
Putting the Sixth Amendment to one side, he also
argues that the district court procedurally erred by not
finding all the required facts.
Ashqar argues that applying the terrorism enhance-
ment violated his Sixth Amendment right to a jury trial
in two ways: first, because in order to do so the court
relied on conduct for which the jury acquitted him; and
second, because this enhancement increased his
potential sentencing range beyond the maximum that
would have applied (or that would have been reasonable)
based solely on the facts found by the jury.
The terrorism enhancement in the Guidelines applies
if “the offense is a felony that involved, or was intended
to promote, a federal crime of terrorism. . . .” U.S.S.G.
§ 3A1.4. An offense is a “federal crime of terrorism” if it
“is calculated to influence or affect the conduct of gov-
ernment by intimidation or coercion, or to retaliate
against government conduct” and violates one of the
statutes listed in 18 U.S.C. § 2332b(g)(5)(B). See U.S.S.G.
§ 3A1.4 cmt. n.1 (defining a “federal crime of terrorism” by
reference to § 2332b(g)(5)). The district court applied the
enhancement to Ashqar based on Application Note 2,
which says:
For purposes of this guideline, an offense that in-
volved . . . (B) obstructing an investigation of a federal
crime of terrorism, shall be considered to have in-
No. 07-3879 9
volved, or to have been intended to promote, that
federal crime of terrorism.
In applying the enhancement to Ashqar, the district
court found that the “government has met its burden of
proving, by a preponderance of the evidence at a mini-
mum, that Dr. Ashqar intended to obstruct a terrorism
investigation into Hamas activities.” Ashqar argues that
this finding contradicts the jury’s verdict and thus
violates his right to a jury trial, because the jury, by
acquitting Ashqar of racketeering, found that Ashqar
did not intend to promote Hamas’s terrorist activities.
This argument fundamentally misunderstands the
meaning of an acquittal. The jury found not that Ashqar
was innocent, but that a reasonable doubt existed about
his guilt. Because the district court found Ashqar’s intent
by a preponderance of the evidence, its finding does not
contradict the jury’s verdict. Sentencing courts routinely
rely on acquitted conduct to increase a defendant’s sen-
tence, and this reliance does not violate the Sixth Amend-
ment right to a jury. See United States v. Watts, 519 U.S.
148, 154 (1997) (holding that “a sentencing court may
consider conduct of which a defendant has been acquit-
ted”); United States v. Price, 418 F.3d 771 (7th Cir.
2005) (holding that Watts survives United States v.
Booker, 543 U.S. 220 (2005)); see also 18 U.S.C. § 3661 (“No
limitation shall be placed on the information . . . which a
court of the United States may receive and consider for
purposes of imposing an appropriate sentence.”).
Ashqar also argues, relying on Apprendi v. New Jersey,
530 U.S. 466 (2000), that the enhancement violated his
10 No. 07-3879
constitutional rights because it increased his sentence
based on facts not proven to a jury beyond a reasonable
doubt. We have rejected variants of this argument count-
less times, and we do so again here. As the Supreme
Court held in Cunningham v. California, 549 U.S. 270(2007), “the Federal Constitution’s jury-trial guarantee
proscribes a sentencing scheme that allows a judge to
impose a sentence above the statutory maximum based
on a fact, other than a prior conviction, not found by the
jury or admitted by the defendant.” 549 U.S. at 274-75.
Even though the Court explicitly identified the relevant
maximum as the statutory one, Ashqar maintains that
the correct maximum is the maximum sentence an ap-
pellate court would find reasonable based solely on the
facts found by a jury. He then argues, more or less out of
the blue, that without the additional finding of intent
to promote terrorist acts, an appellate court would find a
135-month sentence unreasonable. The sentence, Ashqar
reasons, is for that reason beyond what the judge “may
impose solely on the basis of the facts reflected in the jury
verdict . . . .” Blakely v. Washington, 542 U.S. 296, 303 (2004)
(emphasis in original). While this argument is not
without its advocates, see Rita v. United States, 551 U.S.
338, 368-85 (2007) (Scalia, J., concurring), it is not the
law. Imposing a higher sentence based on judicially-
found facts does not violate the Sixth Amendment
because “the judge could disregard the Guidelines and
apply the same sentence . . . in the absence of the special
facts . . . .” Id. at 354. So long as the Guidelines are advi-
sory, the maximum a judge may impose is the statutory
maximum. Here, there is no question the district court
No. 07-3879 11
knew the Guidelines are advisory; even though the
range was 210-262 months, it imposed an overall sen-
tence of 135 months. There is also no question the sen-
tences are below the statutory maximum. The statutory
maximum for obstruction is 10 years (120 months), and
that is the sentence the district court chose for that count;
the statutory maximum for criminal contempt is life,
well above the 135 months Ashqar received on that count.
In the alternative, Ashqar argues that the district court
erred procedurally because it neglected to find all the
necessary facts before applying the enhancement. Ashqar
identifies three allegedly missing factual findings: (1) that
Ashqar intended to promote a federal crime of terrorism;
(2) that the grand jury was investigating a specific crime
of terrorism; and (3) that the crime was calculated to
influence the actions of a government, as required under
§ 2332b(g)(5)(A).
The terrorism enhancement applies to obstruction of
justice if “the district court finds that the purpose or intent
of the defendant’s substantive offense of conviction or
relevant conduct was to promote a federal crime of terror-
ism as defined by § 2332b(g)(5)(B).” United States v.
Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005). Ashqar
argues that the district court, instead of finding this
required intent, interpreted Application Note 2 as if it
imposed strict liability. If Ashqar obstructed justice, and
the investigation dealt with a specific crime of terrorism,
then (under the interpretation Ashqar attacks) the en-
hancement applies without any additional findings.
He contends that this contradicts the text of § 3A1.4 by
12 No. 07-3879
eliminating the requirement that the offense must be
“intended to promote” a federal crime of terrorism.
To the extent Note 2 could be read to say that a con-
viction for obstructing an investigation of a federal
crime of terrorism “involves” a federal crime of terrorism,
we can see that there might be problems. In United States
v. Parr, 545 F.3d 491 (7th Cir. 2008), we noted that “[t]he
term ‘involve’ as used in the guidelines is not quite so
broad; it means ‘to include.’ . . . Thus, we have held that
an offense ‘involves’ a federal crime of terrorism only if
the crime of conviction is itself a federal crime of terror-
ism.” Id. at 504 (citations omitted). Obstruction is not
among the crimes listed as a possible federal crime of
terrorism in the statute. See § 2332b(g)(5)(B). But the
district court here did not rely on that part of Note 2,
nor did it find that Ashqar’s offense involved a federal
crime of terrorism. It instead asked “whether or not the
purpose or intent of [Ashqar’s] offense of conviction . . .
was intended to promote a federal crime of terrorism.”
This question tracks both the text of § 3A1.4 and Arnaout.
Ashqar responds that even if the district court asked
the right question, it gave an insufficient answer because
it found not that Ashqar “intended to promote” a federal
crime of terrorism, but that Ashqar “intended to obstruct
a terrorism investigation into Hamas activities.” The
government counters that obstructing an investigation
into a crime can be one way of promoting that crime.
Thus, intent to obstruct an investigation is enough, at
least where obstructing an investigation promotes the
crime. We agree. Promoting a crime includes helping
and encouraging that crime, and one way of furthering
No. 07-3879 13
a crime is to try to prevent the government from
finding out about it. So long as the sentencing court
finds that the defendant intended to obstruct an inves-
tigation into a federal crime of terrorism, as opposed to
an investigation into more ordinary violations of the law,
the court has found the intent required to apply § 3A1.4.
Ashqar also claims that the district court found neither
that the grand jury was investigating a specific crime of
terrorism nor that any crime under investigation met
the requirement in 18 U.S.C. § 2332b(g)(5)(A). The record,
however, does not support this assertion. The district
court began its discussion of the terrorism enhancement
by noting the definition of a federal crime of terrorism
in § 2332b(g)(5), including the requirement that the
crime be “calculated to influence or affect the conduct
of government or to retaliate against government con-
duct.” § 2332b(g)(5)(A). It then identified the evidence
on which it relied in finding that the grand jury was
investigating such a crime: Agent Bray’s testimony at the
sentencing hearing, the evidence at trial, and Ashqar’s
testimony before the grand jury. The court even quoted
from the transcript and listed the specific crimes, accompa-
nied by the statute number, that it found were under
investigation. Perhaps the district court never said “and
I find that these crimes were intended to influence a
government” but such formality is hardly necessary. A
sentencing court must “identify which enumerated
federal crime of terrorism the defendant intended to
promote, satisfy the elements of § 2332b(g)(5)(A), and
support its conclusions by a preponderance of the evi-
dence with facts from the record.” Arnaout, 431 F.3d at
14 No. 07-3879
1002. The district court here identified the crimes under
investigation, stated the proper definition of a federal
crime of terrorism, and then found that the identified
crimes qualified as federal crimes of terrorism. It sup-
ported these findings with specific facts in the record,
and Ashqar does not argue that these findings are
clearly erroneous. This was enough.
Finally, Ashqar contends that his sentence is procedur-
ally unreasonable because the district court failed to
consider several of his arguments, including the following:
Ashqar’s various criticisms of Application Note 2; the
historical oppression of Palestine; his fear of Israel’s
retribution; the impropriety of the grand jury’s inquiry
into events prior to Hamas’s designation as a terrorist
organization; and the implications of Ashqar’s acquittal
of the racketeering charge.
“The sentencing judge should set forth enough to
satisfy the appellate court that [s]he has considered the
parties’ arguments and has a reasoned basis for
exercising [her] own legal decisionmaking authority.” Rita,
551 U.S. at 356. Despite what Ashqar contends, Rita
does not require the district court to state why it rejects
every argument offered by the defendant. This case
illustrates the reason for such a rule, as Ashqar’s sen-
tencing brief filled 175 pages. The district court diligently
considered the § 3553(a) factors before sentencing
Ashqar. The one factor the district court did not explicitly
mention was § 3553(a)(6)—the need to avoid unwarranted
sentence disparities among similar defendants. Ashqar
brands this omission as unreasonable, while the gov-
No. 07-3879 15
ernment dismisses this argument as frivolous and
therefore reasonably omitted. Since Ashqar offered as
comparators only defendants not subject to the
terrorism enhancement, we agree with the govern-
ment’s characterization. The district court considered
the parties’ arguments and explained in detail its
reasons for choosing the sentences it did. That was all it
had to do.
***
We A FFIRM the judgment of the district court.
10-2-09