United States v. Mohamed Farah , 899 F.3d 608 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4363
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mohamed Abdihamid Farah
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 16-4364
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Abdirahman Yasin Daud
lllllllllllllllllllllDefendant - Appellant
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No. 16-4366
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Guled Ali Omar
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the District of Minnesota - St. Paul
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Submitted: June 14, 2018
Filed: August 10, 2018
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Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
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GRUENDER, Circuit Judge.
Appellants Mohamed Farah, Abdirahman Daud, and Guled Omar were
convicted of several federal offenses related to their participation in a conspiracy to
join the foreign terrorist organization known as the Islamic State of Iraq and the
Levant (“ISIL”). They now appeal their convictions for conspiracy to commit murder
abroad, see 18 U.S.C. § 956(a), arguing that the district court’s1 jury instructions did
not require the Government to prove the requisite mens rea and that they were
entitled to instructions on two affirmative defenses. They also challenge their
sentences on both procedural and substantive grounds, and Farah claims that the
district court improperly denied his motion to substitute counsel. For the reasons that
follow, we affirm.
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
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I.
A.
In 2014, a group of Somali-Americans from the Twin Cities agreed to travel
to Syria and join ISIL. Federal law enforcement disrupted the plot, but not before
several of the conspirators made it to the front lines. Other members of the group
eventually cooperated with the authorities. Appellants Farah, Daud, and Omar were
the only conspirators to face trial. Because the thrust of their appeal relates to their
convictions for conspiracy to commit murder abroad—and specifically to the intent
element of this offense—our recitation of the facts focuses on that issue.
In March 2014, Omar, Daud, Farah, and others gathered at a local mosque.
One of their friends had recently left to fight against the Assad regime in Syria, so
they discussed the ongoing conflict and spent much of the evening watching pro-ISIL
propaganda videos. One of the attendees, Abdullahi Yusuf, claims that Omar
recruited him that night to join a local group whose purpose was to “get to Syria and
fight . . . for ISIL.”
The group began meeting at least three times per week to watch jihadi videos
and discuss the possibility of fighting in Syria. At one such meeting in April 2014,
Omar gave an “ultimatum”: leave the group or prepare for “a long and hard
journey . . . to get to Syria and fight.” After this speech, the group launched into more
concrete planning. They considered a variety of logistical challenges, including how
they would secure passports, raise funds, and get from Minneapolis to Syria. They
planned to fly to Turkey and arranged for ISIL handlers to facilitate transportation
across the border into Syria. Yusuf later testified that, upon arriving in Syria, the goal
was to join ISIL, attend a training camp, and do whatever ISIL required. He also
recalled having specific conversations with Farah, Daud, and Omar about their desire
to join the fight in Syria, and he confirmed that all three appellants understood this
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meant “killing people.” According to another cooperating witness, the group had
forged an “agreement to go kill people for ISIL.”
As the group’s leader, Omar decided that the first group of conspirators would
leave for Syria by June 1, 2014. Some made it to Syria and joined ISIL, while others
were detained by the authorities. Sensing obstacles to departing directly from the
United States, Omar and two other conspirators planned to drive from Minnesota to
California, cross the border into Mexico, obtain fradulent travel documents, and make
their way to Syria. They rented a car for the drive, but Omar’s family intervened to
prevent them from leaving.
A second round of attempts to reach Syria took place in late 2014, prompted
by the group’s increased awareness of government surveillance. Daud pushed
everyone to leave the country on November 8, 2014. Though his own passport
application had been denied, Daud used his money to help Farah travel to Syria.
Farah took a Greyhound bus from Minnesota to New York but was detained while
boarding a flight to Istanbul at JFK Airport. Similarly, Omar attempted to fly from
Minneapolis to San Diego with his passport, but he was prevented from boarding the
flight. Omar claims that he was not trying to leave the country, but he was recorded
admitting that he was attempting to “get out right then and there.” Both Farah and
Omar were subsequently released.
In December 2014, one of the conspirators, Abdirahman Bashir, had a change
of heart about ISIL after learning that several of his cousins had died fighting in
Syria. He withdrew from the conspiracy and decided to cooperate with the FBI.
Bashir later began recording conversations with his former co-conspirators. These
recordings reveal that, despite previous setbacks, all three appellants remained
committed to fighting and killing for ISIL. Omar, for example, discussed the thrill
of conducting night raids with ISIL and his desire to serve as a “tank-hunter.” The
recorded conversations also capture the appellants’ increasing animosity toward the
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United States. Daud and Farah longed for an opportunity to participate in an ISIL
operation on American soil, and Omar looked forward to the demise of the United
States: “[The infidels] are getting it. Allah will not let America be a superpower for
this long . . . . [T]heir time is coming.”
In early 2015, Farah developed a contact he believed could provide fake
passports for the group. After making arrangements, Daud, Farah, and Bashir drove
cross-country to meet the contact in San Diego. During the drive, Daud reiterated his
desire to fight for ISIL, declaring both his hatred for the United States and his longing
to “shoot the lights out of” an AK-47 upon making contact with ISIL. After they
arrived in California and paid for the fraudulent documents, Daud and Farah were
arrested by the passport contact, who turned out to be an undercover FBI agent.
Omar was also taken into custody shortly thereafter.
A grand jury later indicted Omar, Farah, and Daud for a variety of offenses
related to their roles in the conspiracy. All three appellants were charged with one
count of conspiracy to murder outside the United States, in violation of 18 U.S.C.
§ 956(a), as well as multiple counts of attempt and conspiracy to provide material
support to a designated foreign terrorist organization, in violation of 18 U.S.C.
§ 2339B(a)(1). Additionally, Farah and Daud were charged with perjury, see id.
§ 1621; Farah was charged with making a false statement, see id. § 1001; and Omar
was charged with attempted financial aid fraud, see 20 U.S.C. § 1097(a).
B.
Before trial, the Government alerted the district court to a potential conflict of
interest involving a paralegal on Farah’s defense team. At a hearing on the matter
just over a month before trial, the attorney who employed the paralegal moved to
withdraw as counsel. The court then inquired as to whether Farah’s other attorney,
Murad Mohammad, was capable of trying the case alone. Mohammad assured the
court that he could, and Farah expressed complete confidence in Mohammad’s ability
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to do so. On the basis of these assurances, the district court granted the motion to
withdraw and allowed Mohammad to represent Farah alone.
This arrangement appeared to be working until Mohammad moved to withdraw
four days before trial, citing a breakdown in communication and a lack of trust. The
district court conducted another hearing the morning that trial was scheduled to begin.
Farah explained that he had lost confidence in Mohammad and specifically alleged
that the two had not met regularly and that he did not have access to discovery
materials. But Mohammad contradicted Farah’s account. He testified about weekly
meetings, in addition to several phone calls, and confirmed that Farah had been
offered access to discovery materials, which Farah declined. In light of Mohammad’s
explanation and Farah’s abundant confidence in him only one month prior, the district
court concluded that Farah had not shown “justifiable dissatisfaction” and denied the
request for substitute counsel.
As trial began, the appellants raised several concerns about the district court’s
proposed jury instructions on the conspiracy-to-commit-murder counts, arguing that
it is impossible to conspire to commit murder without a specific intent to kill. The
district court overruled this objection. The appellants also objected to the denial of
their requested affirmative-defense instructions on combatant immunity and defense
of others, which the court overruled due to the lack of an evidentiary foundation.
After a three-week trial, the jury returned a verdict convicting the appellants
on all counts except the perjury charge against Daud. The presentence investigation
report (“PSR”) for each of the appellants calculated an offense level of 43, a criminal
history category of VI, and a resulting sentencing range of life imprisonment. After
considering the factors set out in 18 U.S.C. § 3553(a), the district court varied
downward for each of the appellants, sentencing Farah and Daud to 360 months’
imprisonment and Omar to 420 months’ imprisonment.
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Farah, Daud, and Omar now appeal on several grounds. Farah argues that the
district court improperly denied his request to appoint substitute counsel. All three
appellants challenge their conspiracy-to-commit-murder convictions, claiming that
the district court erred in its jury instructions by improperly defining murder and by
refusing to instruct on two affirmative defenses. Lastly, the appellants challenge their
below-guidelines sentences.
II.
We first address Farah’s argument that the district court abused its discretion
by denying Mohammad’s motion to withdraw and by refusing to appoint substitute
counsel. “A motion for appointment of substitute counsel is committed to the district
court’s sound discretion.” United States v. Delacruz, 865 F.3d 1000, 1008 (8th Cir.
2017). To prevail, a defendant must show “justifiable dissatisfaction” with his
attorney, which “can arise from irreconcilable conflict, a complete breakdown in
communication, or any other factor interfering significantly with an attorney’s ability
to provide zealous representation.” United States v. Taylor, 652 F.3d 905, 908 (8th
Cir. 2011). “Given the importance of the attorney-client relationship, the court must
conduct an adequate inquiry into the nature and extent of an alleged breakdown in
attorney-client communications.” Id. (internal quotation marks omitted).
The record demonstrates that the district court conducted a sufficient inquiry
into Farah’s concerns about Mohammad. See United States v. Jones, 662 F.3d 1018,
1026 (8th Cir. 2011). Indeed, the court rejected his request for substitute counsel
with the benefit of not one but two hearings. In the hearing on Mohammad’s motion
to withdraw, the court specifically inquired into Farah’s claims of insufficient
communication and lack of access to discovery. Moreover, at the hearing just one
month earlier, Farah repeatedly expressed confidence in Mohammad. The court
admonished Farah at that time to give prompt notice if he was dissatisfied with
Mohammad, and Farah concedes that it was his own fault for failing to do so. Thus,
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the district court acted well within its discretion in refusing Farah’s request for
substitute counsel, particularly on the eve of trial. See id. at 1024 (“Last-minute
requests to substitute counsel remain disfavored, and a trial court’s discretion is at its
zenith when the defendant endeavors to replace counsel shortly before trial.” (internal
quotation marks, citations, and alterations omitted)).
III.
We next turn to the appellants’ claim that the district court improperly
instructed the jury as to conspiracy to commit murder. We review a district court’s
formulation of jury instructions for an abuse of discretion and its interpretation of law
de novo. United States v. Cornelison, 717 F.3d 623, 626 (8th Cir. 2013). An
instructional error does not warrant reversal of a conviction if it is harmless. United
States v. Dvorak, 617 F.3d 1017, 1024 (8th Cir. 2010). “An error in jury instructions
may be disregarded if it is clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.” Id. at 1025 (internal quotation
marks omitted).
The appellants first argue that the district court erred in defining the murder
element of the conspiracy-to-commit-murder offense. As provided in 18 U.S.C.
§ 956(a)(1), this offense encompasses a conspiracy to commit “an act that would
constitute the offense of murder . . . if committed in the . . . jurisdiction of the United
States.” Under federal law, murder is “the unlawful killing of a human being with
malice aforethought.” 18 U.S.C. § 1111(a). In defining this term for the jury, the
district court relied on language from a relevant Eighth Circuit model jury instruction,
which states that “‘malice aforethought’ means [1] an intent, at the time of a killing,
willfully to take the life of a human being, or [2] an intent willfully to act in callous
and wanton disregard of the consequences to human life.” Model Crim. Jury Instr.
8th Cir. 6.18.1111A-1 (2014); see also United States v. Johnson, 879 F.2d 331, 334
(8th Cir. 1989) (approving a similar instruction). Nevertheless, the appellants claim
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that the Government should have been required to prove a specific intent to kill and
thus argue that the district court erred in including the second portion of the
definition.
Even assuming they are correct that “an intent willfully to act in callous and
wanton disregard” falls short of the requisite mens rea for this offense, we are
convinced that this error was harmless beyond a reasonable doubt, as “a rational jury
would have found the defendant[s] guilty” under an instruction requiring a specific
intent to kill. See Dvorak, 617 F.3d at 1025. Indeed, there is overwhelming evidence
in the record showing that Farah, Daud, and Omar each knew the object of the
conspiracy included intentionally taking lives. Yusuf offered compelling testimony
that all three appellants understood that they would engage in killing if they reached
Syria. And Bashir’s recorded conversations capture their intentions in vivid detail.
Moreover, even were we to believe appellants’ claim that they themselves had no
desire to kill, all three agreed to join and support a plot aimed at sending young men
to Syria to fight for a known terrorist organization. They knew that some co-
conspirators actually reached Syria and were killed on the front lines, and they
continued until their arrest to aid and encourage others in reaching the battlefield. On
this record, it is clear beyond a reasonable doubt that the jury would have convicted
them of the conspiracy even if the district court had adopted an instruction that
required the Government to prove a specific intent to kill. Thus, we find that any
error in the instruction was harmless beyond a reasonable doubt.2
Additionally, Farah and Daud argue that the district court erred in refusing to
instruct the jury on the affirmative defenses of combatant immunity and defense of
others. “To be entitled to a jury instruction on a justification defense, a defendant
2
Given that we resolve the appellants’ challenge on this basis, we need not
address their related claims that the instruction’s definition of murder violated their
due process rights or that the instruction made the conspiracy-to-commit-murder
offense duplicative of material support for terrorism.
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must show an underlying evidentiary foundation as to each element of the defense,
such that a reasonable person could conclude that the evidence supported the
defendant’s position.” United States v. Poe, 442 F.3d 1101, 1104 (8th Cir. 2006)
(internal quotation marks omitted). “Whether there is sufficient evidence to support
the submission of an instruction on an affirmative defense is a question of law which
we review de novo.” Id. at 1103. In this case, the district court did not err in
concluding that there was insufficient evidence to merit either instruction.
Turning first to defense of others, Farah and Daud argue that they were entitled
to an instruction on this defense because there was evidence showing that “the
objective of the conspiracy was to defend others from imminent bodily harm and
death.” Specifically, they suggest that the conspiracy to go to Syria and fight for ISIL
was motivated by a desire to prevent the atrocities that the regime of Bashar al-Assad
was committing against innocent Muslim civilians in Syria. But we have emphasized
that the defense of another must stem from “immediate danger of unlawful bodily
harm.” United States v. Oakie, 709 F.2d 506, 506-07 (8th Cir. 1983) (per curiam)
(emphasis added); see also Model Crim. Jury Instr. 8th Cir. 9.04. Even assuming that
Farah and Daud sought to join ISIL out of a desire to protect innocent civilians, they
never discussed killing in the context of defending individual Syrian civilians who
faced an immediate and specific threat. Indeed, their purported justification pertained
only, in the most general terms, to the Syrian civil war and civilian suffering. Thus,
they failed a show a sufficient evidentiary foundation to warrant this instruction.
As for combatant immunity, Farah and Daud contend that their proposed
“instruction was not advanced as an affirmative defense, but in order to clarify the
government’s burden to prove beyond a reasonable doubt that defendants entered into
an agreement to kill with malice aforethought.” Although their argument is not
entirely clear, we understand Farah and Daud to suggest that, given their belief that
they would be fighting as lawful combatants once they joined ISIL, they could not
have knowingly agreed to engage in “unlawful” killings. Even under this charitable
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reading, their argument fails. While Farah and Daud are correct that a defendant must
generally know the facts that make his conduct illegal, see, e.g., Elonis v. United
States, 135 S. Ct. 2001, 2009 (2015), the lawfulness of a soldier’s belligerency is a
legal determination, see Ex Parte Quirin, 314 U.S. 1, 30-31 (1942), and a mistake of
law is no defense, see Elonis, 135 S. Ct. at 2009 (“This is not to say that a defendant
must know that his conduct is illegal before he may be found guilty. The familiar
maxim ‘ignorance of the law is no excuse’ typically holds true.”). Thus, there was
basis for providing this instruction.
IV.
The appellants also claim that the district court committed procedural and
substantive error in imposing their sentences. In reviewing a challenged sentence, we
“first ensure that the district court committed no significant procedural error, such
as . . . failing to consider the § 3553(a) factors . . . or failing to adequately explain the
chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). “Assuming that the
district court’s sentencing decision is procedurally sound, [we] then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id.The appellants first argue that the district court procedurally erred by failing
to consider the need to avoid disparities between their sentences and those of their co-
conspirators who entered guilty pleas. Under § 3553(a)(6), a district court is required
to consider “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” Although the
district court did not expressly address sentencing disparities with the appellants’ co-
conspirators, each of the appellants thoroughly discussed this issue in their sentencing
memoranda. We may therefore presume that the district court considered this
argument. See United States v. Johnson, 619 F.3d 910, 922 (8th Cir. 2010). In
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addition, the court thoroughly analyzed each of the other § 3553(a) factors in its
statement of reasons for each appellant. Thus, we find no procedural error.
Finally, the appellants contend that their sentences are substantively
unreasonable. Where, as here, a district court varies below a properly calculated
guidelines sentence, “it is nearly inconceivable that the court abused its discretion in
not varying downward still further.” United States v. Mohamed, 757 F.3d 757, 761
(8th Cir. 2014). In attacking the reasonableness of their sentences, Farah, Daud, and
Omar again emphasize the sentencing disparities with their co-conspirators. But as
we recently explained, “[t]he statutory direction to avoid unwarranted disparities
among defendants [in § 3553(a)(6)] refers to national disparities, not differences
among co-conspirators.” United States v. Pierre, 870 F.3d 845, 850 (8th Cir. 2017).
In any event, the appellants were not similarly situated to their co-conspirators, who
cooperated with the Government and pleaded guilty to lesser charges. See Mohamed,
757 F.3d at 762 (explaining that defendants are not similarly situated for the purposes
of § 3553(a)(6) where one defendant accepts responsibility but the others do not).
“[I]t is not an abuse of discretion for a district court to impose a sentence that results
in a disparity between co-defendants when there are legitimate distinctions between
the co-defendants.” Id. at 762 (internal quotation marks omitted). After careful
consideration, the district court chose to vary downward from the recommended
sentence of life imprisonment and adequately explained why it granted a lesser
variance to Omar than to Farah and Daud. Thus, we see no basis for finding these
sentences unreasonable and conclude that the district court did not abuse its
discretion.
V.
Accordingly, we affirm the denial of Farah’s motion to substitute counsel,
appellants’ convictions for conspiracy to commit murder abroad, and their resulting
sentences.
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