United States v. Hinda Dhirane

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HINDA OSMAN DHIRANE, a/k/a Nicmatu Rabbi,
Defendant - Appellant.
No. 17-4226
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MUNA OSMAN JAMA, a/k/a Asha Ali Amin, a/k/a Umu Luqmaan, a/k/a
Taaibah,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, District Judge. (1:14-cr-00230-AJT-1; 1:14-cr-
00230-AJT-2)
Argued: May 10, 2018 Decided: July 16, 2018
Before NIEMEYER, KEENAN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Keenan and Judge Harris joined.
ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellants. Jonathan Y. Ellis, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Whitney
E.C. Minter, First Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia; Alan H. Yamamoto, LAW OFFICE OF
ALAN YAMAMOTO, Alexandria, Virginia, for Appellants. Dana J. Boente, United
States Attorney, James P. Gillis, Assistant United States Attorney, Danya E. Atiyeh,
Assistant United States Attorney, Joseph S. Attias, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
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NIEMEYER, Circuit Judge:
Following a bench trial, the district court found Muna Osman Jama and Hinda
Osman Dhirane guilty of conspiracy to provide and of providing on numerous occasions
material support to al-Shabaab, a designated foreign terrorist organization, in violation of
18 U.S.C. § 2339B. The defendants, naturalized American citizens who were born in
Somalia, collected money from members of online chat rooms and transmitted the funds
to coconspirators in Somalia and Kenya to assist al-Shabaab’s terrorist activities in the
Horn of Africa. The district court sentenced Jama to 144 months’ imprisonment and
Dhirane to 132 months’ imprisonment.
On appeal, the defendants contend (1) that the district court erred in denying their
motion to suppress evidence obtained pursuant to warrants issued under the Foreign
Intelligence Surveillance Act (“FISA”), arguing that the evidence was obtained
unconstitutionally in light of FISA’s ex parte and in camera judicial review process;
(2) that the district court applied an incorrect legal standard to conclude that two
coconspirators in Somalia and Kenya, to whom the defendants transmitted monies, were
“part of” al-Shabaab; and (3) that the district court erred in applying sentencing
enhancements under U.S.S.G. § 2M5.3(b)(1)(E) (providing for a two-level enhancement
when the support to a foreign terrorist organization was provided with the intent,
knowledge, or reason to believe it would be used to assist in the commission of a violent
act).
For the reasons that follow, we affirm.
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I
In 2008, the U.S. Department of State designated al-Shabaab a foreign terrorist
organization under § 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189. At
that time and continuing through the events of this case, al-Shabaab was engaged in
terrorist activities in the Horn of Africa region, principally in Somalia.
In the period from 2011 to 2013, the defendants participated in an online chat
room composed of members of the Somali diaspora in the United States and around the
world. Participants generally discussed current events concerning Somalia, including
al-Shabaab’s activities there, and, on various occasions, al-Shabaab leaders and
representatives would speak to the group and solicit support, including financial support,
for their terrorist activities. During that time, the defendants also participated in a
smaller, private chat room known as the “Group of Fifteen.” Only those participants
from the larger chat room who had been or who could be persuaded to become
committed supporters of al-Shabaab were invited to join. The Group of Fifteen
conversed confidentially approximately once or twice a month, where members pledged
to make periodic payments ranging from $50 to $200 in support of al-Shabaab’s
operations. The defendants kept track of those commitments and contributed money
themselves. They also arranged for representatives or persons associated with al-Shabaab
to speak to the Group of Fifteen and solicit support, including financial resources, for
al-Shabaab’s activities.
As the money was collected, the defendants transmitted it to persons involved with
al-Shabaab either on “the Nairobi side,” referring to the geographical area around
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Nairobi, Kenya, or “the Hargeisa side,” referring to the geographical area around
Hargeisa, Somalia. Defendant Jama “personally solicited contributions” from the Group
of Fifteen, “monitored whether the individual members had satisfied their monthly
commitments,” and saw to it that the sums were “successfully transmitted to and received
by [al-Shabaab] contacts,” both on the Nairobi side and the Hargeisa side. And defendant
Dhirane played a similar role, mostly for the Hargeisa side. The monies sent to the
Nairobi side were transmitted principally to a woman named Fardowsa Jama Mohamed,
who used the funds to operate two safehouses in Nairobi for al-Shabaab fighters. The
monies sent to the Hargeisa side were transmitted principally to a woman named Barira
Hassan Abdullahi, described as a financial organizer on behalf of al-Shabaab, who used
the funds to purchase vehicles and other supplies for al-Shabaab fighters in the Golis
Mountains just north of Hargeisa.
The government gathered evidence of the defendants’ activities through electronic
surveillance authorized under FISA. Transcripts of conversations collected during this
surveillance showed the defendants and their coconspirators using coded language and
sharing advice about how to avoid being caught and what to say if questioned. They also
showed the defendants discussing instances where their financial help had assisted
fighters in the field. On one occasion, Dhirane described a news report of an attack by
al-Shabaab on Somali government troops as an ambush “by our forces,” stating, “Thanks
to God; let him die. . . . Yes, wonderful; that one will benefit us.”
In June 2014, the defendants, along with others — including Mohamed and
Abdullahi — were indicted and charged with one count of conspiracy to provide material
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support to al-Shabaab, a designated foreign terrorist organization, and both defendants
were charged with 20 substantive counts of providing material support in the form of
money to al-Shabaab — one count for each transmission of money — all in violation of
18 U.S.C. § 2339B(a)(1).
Prior to trial, the government filed a notice of its intent to present evidence
gathered during the surveillance that was conducted pursuant to warrants issued under
FISA. The defendants filed a joint motion to suppress the evidence, even though they
had not reviewed the warrant application and supporting materials due to the fact that
they were classified, contending that the information was unlawfully acquired or the
surveillance was not made in conformity with an order of authorization or approval,
citing 50 U.S.C. §§ 1806(e) and 1825(f). They also requested that their counsel, who
possessed a security clearance, be given access to the classified FISA materials. While
the district court denied their counsel access to the FISA materials, it nonetheless
conducted an in camera and ex parte review of the materials and thereafter denied the
defendants’ motion to suppress. The court concluded that there was probable cause to
issue the warrants; that the surveillance complied with all applicable procedures; and that
nothing in the materials suggested that a false statement or misleading omission had been
made to the Foreign Intelligence Surveillance Court that issued the warrants authorizing
the surveillance.
The defendants waived their right to a jury trial, and the district court conducted a
bench trial beginning in July 2016. During trial, the defendants argued that they provided
monies exclusively for the purpose of procuring medicine and medical services for
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al-Shabaab members, which they claimed fell within the “medicine” exception to
“material support” as used in 18 U.S.C. § 2339B. See id. § 2339A(b)(1). At the
conclusion of trial, the court found both defendants guilty of conspiracy, Jama guilty of
all substantive counts, and Dhirane guilty of those substantive counts covering conduct
that occurred after she joined the conspiracy, acquitting her on the remaining counts. The
court issued a written opinion dated November 4, 2016, providing its findings of fact and
addressing the various legal issues that had been presented at trial.
The court found as facts that the defendants were “ardent, committed, and active
supporters of [al-Shabaab]”; that they knew that al-Shabaab was a designated foreign
terrorist organization and was engaging in terrorist activities; and that they knew that it
was unlawful to provide support to that organization. The court found further that the
defendants played a prominent role in the Group of Fifteen chat room, arranging for
representatives of or persons associated with al-Shabaab to solicit funds from members of
the chat room and then organizing the collection of those funds and their transmission to
Kenya and Somalia. It found that the defendants transmitted the funds mostly to
coconspirator Mohamed on the Nairobi side and coconspirator Abdullahi on the Hargeisa
side for the specific purpose of supporting al-Shabaab’s activities in those areas.
Mohamed, it found, operated two safehouses in Nairobi, one for providing medical care
and treatment to injured al-Shabaab soldiers and the other as a staging ground for
al-Shabaab’s military operations. Abdullahi, it found, received the monies in Hargeisa
and used them to provide transportation, trucks, and other support services to al-Shabaab
soldiers. The court found generally that the defendants, as part of their fundraising
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activities, had access to al-Shabaab leaders and to nonpublic information pertaining to
al-Shabaab’s financial needs, including for its military activities. In this regard, the court
found specifically that these defendants coordinated “to some degree their fundraising”
with respect to the specific military activities of al-Shabaab. In sum, the court found that
the defendants “understood, intended, and planned that, when they provided money to
[Mohamed, Abdullahi, and others], they provided money to [al-Shabaab].”
The district court sentenced Jama to 144 months’ imprisonment and Dhirane to
132 months’ imprisonment, applying sentencing enhancements to their Guidelines ranges
under U.S.S.G. § 2M5.3(b)(1)(E) (providing for a two-level enhancement when the
support to a foreign terrorist organization was provided with the intent, knowledge, or
reason to believe it would be used to assist in the commission of a violent act).
From the district court’s judgments, the defendants filed these appeals.
II
The defendants contend first that the statutory framework that allowed the district
court to determine ex parte and in camera the legality of the government’s surveillance of
them pursuant to the FISA warrants was “fundamentally at odds with our adversary
system.” They argue that it was contrary to our constitutionally established adversary
system to deny their counsel, who possessed the requisite security clearance, access to the
warrant applications and supporting materials to assess whether they met statutory
requirements and were consistent with the Fourth Amendment. Such a review on behalf
of any defendant, they assert, should only be made by the defendant’s counsel as an
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advocate, not by the court. See Dennis v. United States, 384 U.S. 855, 875 (1966)
(recognizing, in the context of a trial witness’s grand jury testimony, that “[t]he
determination of what may be useful to the defense can properly and effectively be made
only by an advocate”). Moreover, they contend that by refusing to allow defense counsel
to review the materials, the district court effectively precluded counsel from obtaining a
Franks hearing. See Franks v. Delaware, 438 U.S. 154, 171–72 (1978) (authorizing an
adversarial hearing on the validity of a warrant upon a showing of an intentional or
reckless falsehood in a warrant affidavit). The defendants make clear, however, that they
do not challenge on appeal the conclusions reached by the district court, only the
statutory framework that allowed the court to reach those conclusions without the
participation of counsel.
The defendants filed a motion to suppress the surveillance evidence before trial,
and because the Attorney General filed an affidavit stating that disclosure of the
classified materials involved in obtaining the warrants would harm national security, the
district court conducted an ex parte and in camera review of the warrant applications and
underlying materials, as provided by FISA. The court found that it was able to adjudicate
the legality of the FISA surveillance without the assistance of defense counsel, although
the statute provided it with discretion to seek that assistance, and it concluded that the
surveillance was properly authorized and lawfully conducted.
In enacting FISA, Congress intended that the procedures provided strike a
reasonable balance between the competing interests in protecting individuals’
constitutional guarantees and in protecting matters involving national security. The Act
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provides that when a defendant files a motion to suppress and the Attorney General files
“an affidavit under oath that disclosure or an adversary hearing would harm the national
security of the United States,” the court must review the materials ex parte and in camera
“to determine whether the surveillance of the aggrieved person was lawfully authorized
and conducted.” 50 U.S.C. § 1806(f); see also id. § 1825(g). The Act gives the court
authority to disclose the materials to the party moving to suppress, but “only where such
disclosure is necessary to make an accurate determination of the legality of the
surveillance.” Id. § 1806(f); see also id. § 1825(g)
The government notes that every federal court to have considered the
constitutionality of these procedures has concluded that FISA reached a reasonable and
therefore constitutional balance of competing interests. See, e.g., United States v. Pelton,
835 F.2d 1067, 1075 (4th Cir. 1987); see also United States v. El-Mezain, 664 F.3d 467,
567–68 (5th Cir. 2011); United States v. Damrah, 412 F.3d 618, 624–25 (6th Cir. 2005);
United States v. Belfield, 692 F.2d 141, 148–49 (D.C. Cir. 1982). And we share that
view. It is consistent with the general notion, even in the criminal context, that the right
to an adversarial proceeding to determine disputes of fact is not absolute. See Kaley v.
United States, 571 U.S. 320, 338 (2014) (“This Court has repeatedly declined to require
the use of adversarial procedures to make probable cause determinations”); Taglianetti v.
United States, 394 U.S. 316, 317 (1969) (noting that “an adversary proceeding and full
disclosure” is not required for “resolution of every issue raised by an electronic
surveillance”); United States v. Daoud, 755 F.3d 479, 482 (7th Cir. 2014) (similar).
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Nonetheless, the defendants contend that the FISA structure denied them their
constitutionally established right to a Franks hearing. In Franks, the Supreme Court
recognized that a defendant has the right to challenge the veracity of an affidavit made in
support of a warrant, but in order to procure an evidentiary hearing on the matter, the
defendant must first specifically identify what aspect of the affidavit used by the judicial
officer to issue the warrant was allegedly false and must accompany that allegation with
an offer of proof. 438 U.S. at 167, 171. FISA similarly provides for court review of a
warrant application’s veracity and legality and, if the court finds it necessary, a hearing.
In conducting its review, however, the court relies on the input of various executive
officers and its own review of the relevant materials to decide whether a hearing is
necessary. See 50 U.S.C. § 1806(e)–(g); see also Daoud, 755 F.3d at 484 (“[T]he judge
makes the additional determination, based on full access to all classified materials and the
defense’s proffer of its version of the events, of whether it’s possible to determine the
validity of the Franks challenge without disclosure of any of the classified materials to
the defense”).
We recognize the benefit that an open, adversarial proceeding could provide,
particularly in cases where a falsehood in the affidavit could be more readily identified by
the defendant or his counsel than by a court perhaps less familiar with the subject matter.
But Congress did not run afoul of the Constitution when it reasoned that the additional
benefit of an unconditional adversarial process was outweighed by the Nation’s interest
in protecting itself from foreign threats. And even then, it took care to mitigate the loss
of any such benefit by requiring the involvement of a number of high-ranking executive
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officials who, subject to additional oversight by the Attorney General, must participate in
the FISA-warrant application process. See 50 U.S.C. § 1804 (requiring, inter alia,
(1) that the application be made by a federal officer upon oath or affirmation, (2) that the
Attorney General personally approve the application, (3) that a high-ranking executive
official certify the application, and (4) that other affidavits or certifications be provided as
the judge or Attorney General may demand).
At bottom, we reject the defendants’ challenge to the FISA framework and thus to
the district court’s decision not to disclose the classified FISA materials to the
defendants’ counsel under that framework, even though, as the defendants repeatedly
noted, their counsel had the requisite security clearance.
III
For their main argument on appeal, the defendants contend that the district court,
in the course of its opinion after trial, erred by “redefin[ing] an element of § 2339B,”
without any legal support, when it defined “a foreign terrorist organization” as used in the
statute to include any person “engaged in significant activity on behalf of [a foreign
terrorist organization] relative to [its] goals and objectives” and developed a list of non-
exclusive factors to determine if someone met that definition. They argue that with this
broadened definition of “organization,” the court concluded that coconspirators
Mohamed and Abdullahi, to whom the defendants sent money, were part of al-Shabaab.
This was, the defendants maintain, critical to the finding of guilt, because they claimed at
trial that Mohamed and Abdullahi were independent of any foreign terrorist organization
12
and that therefore the defendants’ transmission of funds to them was not “to a foreign
terrorist organization.” They then elaborate on the consequences of the court’s error:
Federal courts have no power to invent their own definitions of the
elements of federal criminal offenses. Doing so violates the fundamental
principle that Congress, not courts, defines the elements of a federal crime.
Devising a novel and unforeseeable construction of an element of a federal
crime at the end of a criminal case, and then applying that construction
retroactively, violates the Due Process Clause. And devising a novel non-
exclusive seven-factor test to define an element of a federal offense violates
the void-for-vagueness doctrine. At bottom, the district court’s common
law construction of the “foreign terrorist organization” element of § 2339B
reconfigured an element of a federal crime into something that was
previously unknown to the law.
In its written opinion finding the defendants guilty, the district court began with its
factual findings. It then applied § 2339B to the facts. In applying the statute, however,
the court seemed to assume, as the defendants had argued, that the transmission of
monies by the defendants for use by al-Shabaab could only satisfy the elements of the
statute if the monies were transmitted to persons — here, Mohamed and Abdullahi —
who were “part of al-Shabaab.” (Emphasis added). The court’s discussion was in
response to the defendants’ particular argument for acquittal — that Mohamed and
Abdullahi, to whom the defendants transmitted the monies, were “independent of”
al-Shabaab and that the monies paid to them were “for purposes the Defendants believed
were lawful,” thus insulating them from criminal liability as they “did not intend to
deliver these funds to [al-Shabaab] or anyone who could be considered part of
[al-Shabaab].” As the court thus understood its task, it was looking for a standard “to
determine whether someone [was] sufficiently acting for or on behalf of [a foreign
terrorist organization] to be deemed a part of the [foreign terrorist organization].”
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(Emphasis added). When looking for the substance of that standard, however, the court
observed:
There is surprisingly little case law concerning by what standard to
determine whether a particular individual is sufficiently associated with [a
foreign terrorist organization] to constitute the organization itself.
Therefore, the court, on its own, developed a seven-part balancing test from analogous
sources to determine whether Mohamed and Abdullahi, “to whom the defendants
delivered their funds[,] were part of [al-Shabaab].” (Emphasis added). The court then
applied the test to the facts and concluded that both Mohamed and Abdullahi, as well as
the defendants, were indeed part of al-Shabaab.
The defendants on appeal now seize on this portion of the court’s analysis, arguing
that the district court had no legal justification to create and apply a new standard under
the statute during the course of a criminal prosecution and that, in doing so, the court not
only erred but also acted unconstitutionally by introducing a new element into the crime.
The district court’s adoption of a test to determine whether someone was part of a
foreign terrorist organization for purposes of § 2339B was, we conclude, unnecessary and
resulted from a misunderstanding of what § 2339B required in the context of this case.
Section 2339B does not require that persons such as Mohamed and Abdullahi be part of a
foreign terrorist organization, nor does it require that the defendants themselves be part of
the organization. The statute prohibits anyone from knowingly providing or attempting
to provide material support or resources to a foreign terrorist organization. As § 2339B
provides:
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Whoever knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall be [punished].
. . . To violate this paragraph, a person must have knowledge that the
organization is a designated terrorist organization . . . has engaged or
engages in terrorist activity . . . or that the organization has engaged or
engages in terrorism.
The statute defines “material support or resources” to include, among other things, “any
property,” “currency,” “safehouses,” “facilities,” or “transportation,” but it excludes
“medicine or religious materials.” 18 U.S.C. §§ 2339B(a)(1), 2339B(g)(4), 2339A(b)(1).
Accordingly, to prove a violation, the government must establish that a defendant
(1) knowingly provided or attempted or conspired to provide material support (2) to a
foreign terrorist organization (3) that the defendant knew had been designated a foreign
terrorist organization or had engaged in terrorism. See Holder v. Humanitarian Law
Project, 561 U.S. 1, 16–17 (2010) (clarifying that the requisite “mental state” required to
violate § 2339B is “knowledge about the organization’s connection to terrorism, not
specific intent to further the organization’s terrorist activities”).
Thus, determining that Mohamed and Abdullahi, to whom monies were
transmitted, were part of al-Shabaab was not necessary to finding that the defendants had
provided or attempted to provide material support to al-Shabaab. Soliciting money to
satisfy al-Shabaab’s expressed needs, collecting that money, and then transmitting it to
individuals in Africa who were associated with al-Shabaab for the sole purpose of
funding al-Shabaab’s activities violated § 2339B. And while such an attempt alone is all
that is necessary — see Humanitarian Law Project, 561 U.S. at 30 (noting that even
“working in coordination with” a designated terrorist organization “serves to legitimize
15
and further their terrorist means”) — in this case the monies actually went to maintain
safehouses for al-Shabaab militants and to acquire trucks, transportation, and other
support services for the militants. As the court found, the monies reached the defendants’
intended objects and accomplished the intended purpose of assisting al-Shabaab. That
undoubtedly fulfills the elements of the prohibited conduct.
The defendants’ argument that support given to assist a terrorist organization
might thereafter have been used to purchase medical equipment or supplies was therefore
irrelevant. The defendants were charged with providing money, not medical supplies,
and in particular money that they had solicited and collected with the stated purpose that
it would be sent to support al-Shabaab and its various activities. As the Supreme Court
has observed in this context, even material support given to a terrorist organization to
promote “peaceable” or “lawful” conduct furthers terrorism as it “frees up other resources
within the organization that may be put to violent ends.” Humanitarian Law Project, 561
U.S. at 30; see also id. at 32 (noting that providing material support to terrorist groups in
any form “also furthers terrorism by straining the United States’ relationship with its
allies and undermining cooperative efforts between nations to prevent terrorist attacks”).
“Money,” the Court observed, “is fungible.” Id. at 31. There was thus no need for the
district court to respond to the defendants’ assertion that at least some of the money they
sent was used for medical supplies.
Yet, while the district court’s development and application of its multi-factor test
was unnecessary, its factual findings nonetheless amply satisfied each element of the
offense. The court began by finding that al-Shabaab was designated as a foreign terrorist
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organization, that it “had engaged and was engaging in terrorist activities at the time of
the events involved in this case,” and that the defendants knew of these facts. It also
found that the defendants were “ardent, committed, and active supporters of
[al-Shabaab].” Indeed, it found that the defendants were “involved in arranging for
representatives or persons associated with [al-Shabaab] to speak to [their] chat room . . .
during which time these [al-Shabaab] members solicited support, including financial
resources.” The court found further that the defendants, as members of the chat room,
were “committed to providing financial contributions approximately monthly for the
benefit of [al-Shabaab]” and that “[t]his money was delivered to persons involved in
[al-Shabaab’s] operations.” In particular, it found that Jama “personally solicited
contributions,” “monitored whether the individual members had satisfied their monthly
commitments and whether those sums had been successfully transmitted to and received
by [al-Shabaab] contacts,” and served “in the nature of an enforcer by following up with
those . . . who had not paid their monthly commitments.” Dhirane, the court found, came
to play a similar role. The court found that the defendants “associated and coordinated
with other supporters of [al-Shabaab], including Codefendant Mohamed . . . and
Codefendant Abdullahi.” “All of these other individuals,” it found, “were actively
involved in arranging for and facilitating support for [al-Shabaab].” Finally, the court
found that neither Mohamed nor Abdullahi was involved with or was using the money for
any entity other than al-Shabaab and that the defendants knew this.
In short, the defendants engaged, over a lengthy period of time, in collecting
monies for the purpose of providing material support to al-Shabaab, which they knew
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was a terrorist group engaged in military activities, and then in sending those monies to
individuals they knew were associated with al-Shabaab and involved in providing it with
various resources and support. That conduct constitutes the provision of or at least the
attempt to provide material support to al-Shabaab in the form of money. And these facts,
which the defendants do not challenge on appeal, amply satisfy each of the elements for a
conviction under § 2339B. Thus, while we do not subscribe to the analysis conducted by
the district court in response to the defendants’ position that the court had to find the
coconspirators to be part of the subject terrorist organization, we conclude that the court
appropriately found both defendants guilty of violating § 2339B. We therefore affirm.
IV
Finally, the defendants contend that the district court erred in calculating their
sentencing ranges under the Sentencing Guidelines by applying a two-level enhancement
for providing material support or resources to a terrorist organization “with the intent,
knowledge, or reason to believe they are to be used to commit or assist in the commission
of a violent act.” U.S.S.G. § 2M5.3(b)(1)(E) (emphasis added). They argue that the
enhancement requires a showing of the defendants’ intent or knowledge that “the specific
support [they] provide[] is to be used in the commission of a violent act.” (Quotation
marks omitted). According to the defendants, the district court’s findings do not
sufficiently specify the linkage between their support and a violent act.
Section 2M5.3(b)(1)(E), however, does not require, as the defendants seem to be
suggesting, that support be traced to or be designed to lead to a specific act of violence.
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What it does require is that the defendants be shown to have intended, known, or had
reason to believe that their support would be used to assist in acts of violence by the
terrorist organization.
In this case, the district court expressly found that al-Shabaab was engaged in
terrorist activities in fighting wars in Somalia and in Kenya and that the defendants
engaged the leaders of al-Shabaab to learn of and respond to specific needs arising “as a
result of [al-Shabaab] military operations.” And the court found that the defendants
“coordinated to some degree their fundraising” with those specific needs. Because the
defendants’ financial support was directed at and designed to support al-Shabaab’s
military operations in fighting a war of terrorism in Somalia and Kenya, we conclude that
the district court had sufficient evidence with which to apply the enhancement under
§ 2M5.3(b)(1)(E).
* * *
The judgments of the district court in convicting and sentencing the defendants are
accordingly affirmed.
AFFIRMED
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