United States v. Khan

Filed: September 7, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4519(L)
(CR-03-296-LMB)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MASOUD AHMAD KHAN,
Defendant - Appellant.
O R D E R
The court amends its opinion filed September 1, 2006, as
follows:
On page 5, final paragraph, line 3, and on page 6, line 1 --
“Dar al Argam” is corrected to read “Dar al Arqam.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4519
MASOUD AHMAD KHAN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4520
SEIFULLAH CHAPMAN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4521
HAMMAD ABDUR-RAHEEM,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 05-4811
MASOUD AHMAD KHAN,
Defendant-Appellant.

2 UNITED STATES v. KHAN
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 05-4818
SEIFULLAH CHAPMAN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 05-4893
HAMMAD ABDUR-RAHEEM,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-03-296-LMB)
Argued: May 25, 2006
Decided: September 1, 2006
Before WIDENER and DUNCAN, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge
for the Southern District of West Virginia,
sitting by designation.
Affirmed in part; remanded in part by published opinion. Judge Dun-
can wrote the majority opinion, in which Judge Widener joined. Judge
Goodwin wrote a separate opinion concurring in part and dissenting
in part.
UNITED STATES v. KHAN 3
COUNSEL
ARGUED: John Kenneth Zwerling, ZWERLING, LEIBIG &
MOSELEY, P.C., Alexandria, Virginia; Jonathan Shapiro, Alexan-
dria, Virginia; William B. Cummings, Alexandria, Virginia, for
Appellants. Gordon Dean Kromberg, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States
Attorney, Alexandria, Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
Defendants Masoud Khan ("Khan"), Seifullah Chapman
("Chapman"), and Hammad Abdur-Raheem ("Hammad") appeal their
convictions after a bench trial on various counts related to a conspir-
acy to wage armed conflict against the United States and a conspiracy
to wage armed conflict against a country with whom the United States
is at peace. Khan and Chapman also appeal those portions of their
sentences related to multiple violations of 18 U.S.C. § 924(c). The
government cross-appeals the district court’s decision to sentence
Hammad significantly below the range recommended by the Sentenc-
ing Guidelines.
For the reasons explained below, we affirm the convictions of all
three defendants as well as the sentences of Khan and Chapman.
However, we reverse Hammad’s sentence as unreasonable and
remand to the district court for re-sentencing.
Because of the lengthy and complex background of this case, we
initially describe the facts and procedural history generally applicable
to all of the defendants. Facts specific to each defendant will be set
forth in the discussion of the arguments of each.
4 UNITED STATES v. KHAN
I.
Between 1999 and September 11, 2001, Khan, Chapman and Ham-
mad attended the Dar al Arqam Islamic Center in Falls Church, Vir-
ginia where Ali Timimi ("Timimi"), a primary lecturer, spoke of the
necessity to engage in violent jihad1 against the enemies of Islam and
the "end of time" battle between Muslims and non-Muslims. Several
of the attendees, including Chapman and Hammad, organized a group
to engage in activities in preparation for jihad.
In the spring of 2000, members of the group began simulating com-
bat through paintball exercises2 and practices at firing ranges. By
early summer, the group was meeting every other weekend. Chap-
man, Hammad, and others brought AK-47 style rifles to paintball
training and also practiced marksmanship. Members were required to
follow three rules: don’t tell anyone, don’t bring anyone, and invoke
the Fifth Amendment right against self-incrimination if questioned by
the police.
Because Hammad and Chapman had prior military experience,
they assisted in leading the paintball drills and conducting the train-
ing. Chapman eventually took over and increased the drills’ intensity.
Chapman told the group that members were going to learn to fight;
he enforced Draconian training and imposed physical punishment for
infractions of rules that were out-of-character for a recreational paint-
ball pastime. For example, being made to push a car in neutral was
the punishment meted out for tardiness. The group also learned com-
bat skills, such as how to avoid a helicopter attack, that appear incon-
sistent with a recreational pursuit.
Members of the group had ties to Lashkar-e-Taiba ("LET"), the
military wing of a Pakistani organization initially founded to conduct
jihad against Russians in Afghanistan. Between 1999 and 2003, LET
primarily focused on expelling India from Kashmir. Both through its
1
Jihad is "a holy war undertaken as a sacred duty by Muslims." Web-
ster’s Unabridged Dictionary 1029 (2nd. ed. 2001).
2
Paintball is a game that simulates military combat in which players on
one team try to eliminate players on the opposing team by shooting cap-
sules of water-soluble dye at them from air powered rifles.
UNITED STATES v. KHAN 5
website and through other means, LET proclaimed its support for and
involvement in a number of violent acts, particularly against India. In
addition, LET advertised that it provided free jihad training camps in
Pakistan.
One member of the paintball group, Mr. Hamdi, openly discussed
wanting to go to fight in Kashmir and ultimately die as a martyr in
combat. Hamdi traveled to Pakistan in August 2000 and was admitted
to the LET camps. While there, he fired on Indian positions in Kash-
mir. Upon his return, he rejoined the paintball group and informed the
others about LET’s mission to destroy India, Israel, and the United
States.
In September 2000, FBI agents visited Chapman and asked him
about the paintball activities. After this interview, members of the
group discussed whether they should continue in light of the govern-
ment’s knowledge of their activities. They decided to do so, but with
heightened secrecy.
Seeking more intense and realistic fighting experience in the sum-
mer of 2001, Chapman traveled to the LET camps in Pakistan. While
there, he participated in training and fired various rifles and handguns,
including at least one automatic weapon. During that time, Chapman
also met an LET official in Pakistan by the name of Singh. In 2002,
Singh tried to purchase over the internet a wireless video module and
a control module for use in an unmanned aerial vehicle ("UAV").
Singh selected an airborne video system with a camera and transmit-
ter able to transmit video images from a UAV back to a receiver from
as far as 15 miles away. The video camera could be used in military
reconnaissance and in helping aim artillery and other weaponry across
enemy lines. Singh placed his order from England, but the vendor was
unable to confirm the overseas credit card. Chapman and Khan
assisted Singh in completing the purchases. In the summer of 2002,
Singh visited Virginia, staying first with Chapman and then with
Khan.
The terrorist attacks of September 11, 2001, affected both the focus
of the paintball group and the relationship of its members to the Dar
al Arqam Islamic Center. That night, Timimi argued that the attacks
should not be condemned. He was thereafter not invited to lecture at
6 UNITED STATES v. KHAN
Dar al Arqam, and the tapes of his speeches were destroyed. How-
ever, on September 16, 2001, Timimi met with the paintball group,
including Khan and Hammad, at a member’s house. Chapman, still
at the LET camps, was not present. Timimi said that the September
11 attacks were justified and that it was the obligatory religious duty
of those present to defend the Taliban against the American troops
that were expected to invade Afghanistan in pursuit of Al-Qaeda. The
discussion focused on training at the LET camps as necessary prepa-
ration to fight with the Taliban against the United States. Several of
the members, including Khan, expressed their intent to train at the
LET camps and to fight in Afghanistan after their training was com-
plete. For purposes of their travel, they agreed that Khan would be
their "emir," or leader.
Khan trained at the LET camps for approximately six weeks. Dur-
ing that time, he traveled through four different camps and received
training in commando tactics, reconnaissance, hand-to-hand combat,
and survival skills. He received instructions on and used weapons,
including AK-47 automatic rifles, machine guns, anti-aircraft guns,
rocket-propelled grenades, and mines. He performed sentry duty and
routine maintenance tasks for LET. During this time, Khan left the
camps on personal business at least once and returned shortly thereaf-
ter.
American troops began a ground war against the Taliban on or
about October 20, 2001. By mid-November 2001, American and
allied troops were defeating Taliban forces throughout northern
Afghanistan. On November 13, 2001, the Taliban withdrew from the
Afghan capital of Kabul, and forces allied with the United States took
control of the city. By November 15, Taliban forces had retreated to
Kandahar. In November 2001, while at LET camp, Khan learned
through radio reports that American forces were quickly defeating the
Taliban in Afghanistan. Further, he learned that Pakistan had closed
its border with Afghanistan and that LET would not facilitate his
travel there. Moreover, Pakistani authorities were aggressively
removing foreigners from the camps. As a result, Khan left the camps
in the fall of 2001 without ever having reached Afghanistan.
The government’s investigation into the activities of Khan, Chap-
man, Hammad, and their colleagues became public in February 2003,
UNITED STATES v. KHAN 7
when a search warrant was executed at Timimi’s house. On March
24, 2003, the FBI approached Caliph Abdur Raheem ("Caliph"), one
of the paintball members who was tried with defendants in this case
and acquitted, and obtained a statement from him. Caliph told the FBI
that paintball was used for jihad training and that the reason the train-
ees had acquired AK-47-style rifles was that they were the type of
weapon used overseas. When Hammad learned of the admissions, he
called a colleague with the "bad news" that Caliph had "cracked."
As a result of the government’s investigation, Hammad, Chapman,
and Khan, along with eight others—Caliph, Donald Surratt II, Yong
Ki Kwon, Muhammed Aatique, Khwaja Hasan, Randall Todd Royer,
Ibrahim Ahmed Al-Hamdi, and Sabri Benkhala—were indicted in
June 2003 for various offenses concerning a conspiracy to engage in
military expeditions against India and the United States.
Surratt, Kwon, Aatique, and Hasan all pleaded guilty before trial
and cooperated with the government. As a result of their assistance,
a superseding indictment was returned against the remaining seven
defendants in September 2003.3 Because of his attempts to fight with
the Taliban, Khan was charged with a conspiracy to levy war against
the United States, a conspiracy to provide material support to Al-
Qaeda, and a conspiracy to contribute services to the Taliban. Neither
Chapman nor Hammad was charged with these conspiracies.
In January 2004, Royer and Hamdi pleaded guilty. Benkhala was
tried separately and acquitted. The government proceeded against
Caliph, Chapman, Hammad, and Khan. Chapman and Hammad
moved to have their trial severed from Khan’s, arguing that evidence
that would be presented against Khan would prejudice their right to
a fair trial. The district court denied the motion for severance. Chap-
man, Hammad, and Khan then moved for a bench trial, which the dis-
trict court granted.4
3
Because the government proceeded against all seven defendants in a
single thirty-two count indictment, not every count of the indictment
applied to each defendant.
4
Caliph moved separately for severance of his trial from Khan’s and,
in the alternative, for a bench trial. His motion for severance was denied,
but his motion for a bench trial was granted.
8 UNITED STATES v. KHAN
At trial, the government presented the statements made by Caliph
to the FBI that the paintball activities were intended to be training for
jihad, and that the trainees had obtained AK-47 style weapons
because that was the type of weapon used in combat overseas. After
the government’s presentation of evidence against him, Caliph moved
for an acquittal pursuant to Federal Rule of Criminal Procedure 29.
The district court granted that motion. As a result, Caliph never testi-
fied, and his co-defendants had no opportunity to cross-examine him
concerning his statements.
At the conclusion of the bench trial, the district court wrote a com-
prehensive opinion detailing the evidence against the three remaining
defendants and referencing the wealth of cumulative evidence of
record. Khan was acquitted on four counts and convicted on the fol-
lowing eight counts: (1) one count of conspiracy to enlist in armed
conflict against the United States in violation of 18 U.S.C. §§ 371,
2390; (2) one count of conspiracy to levy war against the United
States in violation of 18 U.S.C. § 2384; (3) one count of conspiracy
to contribute services to the Taliban in violation of 50 U.S.C. § 1705;
(4) one count of conspiracy to contribute material support to LET,
knowing and intending that it was to be used in preparation for and
in carrying out a conspiracy to kill or injure persons in a foreign coun-
try with which the United States is at peace in violation of 18 U.S.C.
§ 2339A; and (5) four counts of conspiracy to use firearms in relation
to a crime of violence in violation of 18 U.S.C. § 924. Chapman was
acquitted on two counts, but convicted on the following five counts:
(1) one count of conspiracy to violate the Neutrality Act (18 U.S.C
§ 960); (2) one count of conspiracy to contribute material support to
LET, knowing and intending that it was to be used in preparation for
and in carrying out a conspiracy to kill or injure persons in a foreign
country with which the United States is at peace in violation of 18
U.S.C. § 2339A; and (3) three counts of conspiracy to use firearms in
relation to a crime of violence in violation of 18 U.S.C. § 924. Ham-
mad was acquitted on four counts, but convicted on the following
three counts: (1) one count of conspiracy to violate the Neutrality Act
(18 U.S.C § 960); (2) one count of conspiracy to contribute material
support to LET, knowing and intending that it was to be used in prep-
aration for and in carrying out a conspiracy to kill or injure persons
in a foreign country with which the United States is at peace in viola-
tion of 18 U.S.C. § 2339A; and (3) one count of conspiracy to use
UNITED STATES v. KHAN 9
firearms in relation to a crime of violence in violation of 18 U.S.C.
§ 924. The district court noted that it included in its opinion only a
fraction of the facts supporting the convictions and that it could have,
with time, included four times as many facts in its opinion in support
of its conclusions.
Before the initial appeals of these convictions were briefed, the
case was remanded for re-sentencing in light of United States v.
Booker, 543 U.S. 220 (2005). At re-sentencing, the district court
chose to sentence Hammad well below the range recommended by the
Sentencing Guidelines, concluding that Hammad’s sentence should be
similar to the sentence of Surrat because, in the district court’s opin-
ion, Surrat and Hammad were similarly situated.
Khan, Chapman, and Hammad now timely appeal their convictions
and sentences on various grounds. The government timely cross-
appeals Hammad’s sentence, arguing that it constitutes an unreason-
able variance from the recommended Sentencing Guidelines range.
We first address each defendant’s individual argument that, with
respect to one or more counts of the indictment, there was insufficient
evidence to support his conviction. We next address the arguments
that apply to the defendants as a group concerning the validity of their
convictions and sentences. We conclude by addressing the govern-
ment’s cross-appeal.
II.
Each of the defendants first challenges his convictions, arguing that
they were not supported by sufficient evidence. When we assess the
sufficiency of the evidence of a criminal conviction on direct review,
"[t]he verdict of [the] jury must be sustained if there is substantial evi-
dence, taking the view most favorable to the Government, to support
it." Glasser v. United States, 315 U.S. 60, 80 (1942). We address each
argument in turn.
A. Khan’s Convictions
1.
Khan argues that there was insufficient evidence presented at trial
to support his convictions for (1) Count One, conspiracy to enlist in
10 UNITED STATES v. KHAN
armed conflict against the United States in violation of 18 U.S.C.
§§ 371, 2390; (2) Count Two, conspiracy to levy war against the
United States in violation of 18 U.S.C. § 2384 and (3) Count Four,
conspiracy to contribute services to the Taliban in violation of 50
U.S.C. § 1705(b). We disagree.
The essential elements of Count One, as applied to Khan, are (1)
a conspiracy (2) to enlist or engage within the United States or any
place subject to the jurisdiction thereof, (3) with intent to serve in
armed hostility against the United States. 18 U.S.C. §§ 371, 2390.
The essential elements of Count Two are (1) a conspiracy (2) to over-
throw, put down, or to destroy by force the Government of the United
States, or to levy war against them, or to oppose by force the authority
thereof, or by force to prevent, hinder, or delay the execution of any
law of the United States, or by force to seize, take, or possess any
property of the United States contrary to the authority thereof. 18
U.S.C. § 2384. The essential elements of Count Four are (1) a con-
spiracy (2) to willfully make or receive any contribution of funds,
goods, or services, to or for the benefit of the Taliban. 50 U.S.C.
§ 1705(b); 31 C.F.R. § 545.201-545.208.
There was sufficient evidence to support the district court’s find-
ings of guilt on all of these counts. When the group members were
meeting and discussing going to Afghanistan to aid the Taliban
against the United States, Khan exhorted the others to go with him to
Afghanistan because "the cowards and the weak hearted are the first
to run away." J.A. 1013. Khan did, in fact, travel to Pakistan to
engage in training in the LET camps, and there was evidence that
Khan intended to go to Afghanistan to fight with the Taliban against
the United States after training. Khan was also selected as the leader
of the group when they arrived in Pakistan. All of the group members
that Khan led directly testified that they intended to engage in armed
hostilities against the United States. The district court found their tes-
timony to be credible; indeed, it was unrebutted. We conclude that
this evidence amply supports the finding that Khan was guilty of
Counts One, Two, and Four.5
5
Khan also challenges his conviction under Count One on an addi-
tional ground, arguing that, as applied to him, Count Eleven and Count
UNITED STATES v. KHAN 11
2.
Khan next argues that there was insufficient evidence to support his
conviction under Count Five, conspiracy to contribute material sup-
port to LET, knowing and intending that it was to be used in prepara-
tion for and in carrying out a conspiracy to kill or injure persons in
a foreign country with which the United States is at peace, in viola-
tion of 18 U.S.C. § 2339A. While he concedes that he provided mate-
rial support to LET, Khan contests that there was sufficient evidence
to demonstrate that he knew that LET was intent on committing acts
of murder or injury to others. We disagree.
The evidence reflects that LET broadly disseminated its goals for
the destruction of India, America, and Israel on its web site and else-
where. Khan was personally acquainted with Singh, an LET official,
whom he assisted in purchasing paramilitary equipment. Even if Khan
remained unaware of the nature of LET’s activities before training in
its camps, he was certainly aware of it by the time he returned to them
after leaving temporarily because the LET camps were full of descrip-
tions of LET’s violent exploits. We therefore conclude that sufficient
One were identical offenses. A defendant cannot, of course, be punished
for two crimes that constitute the "same offense." Rutledge v. United
States, 517 U.S. 292, 297 (1996). "If ‘the same act or transaction consti-
tutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.’" Id. (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932)). In this case,
Count One entailed a conspiracy to violate 18 U.S.C. § 2390 by enlisting
to serve in armed hostility against the United States, while Count Eleven
involved a violation of 18 U.S.C. § 924(o), conspiracy to possess and use
firearms in connection with a crime of violence. Count One required that
Khan engage in armed hostility, but Count Eleven did not. Compare 18
U.S.C. § 2390 with 18 U.S.C § 924(o). Count Eleven required the use of
a firearm, but Count One did not. Compare 18 U.S.C. § 2390 with 18
U.S.C § 924(o). Because each Count required proof of a fact that the
other did not, they are not the same offense, and the district court did not
err in punishing Khan separately for each count.
12 UNITED STATES v. KHAN
evidence was introduced for a rational trier of fact to find the essential
elements necessary for Khan’s conviction under Count Five.6
B. Chapman’s Convictions
1.
The district court found Chapman guilty of Count One, conspiracy
to violate the Neutrality Act, which makes it a crime to
knowingly begin[ ] or set[ ] on foot or provide[ ] or pre-
pare[ ] a means for or furnish[ ] the money for, or take[ ]
part in, any military or naval expedition or enterprise to be
carried on from thence against the territory or dominion of
any foreign prince or state, or of any colony, district, or peo-
ple with whom the United States is at peace.
18 U.S.C. § 960. The district court found that "Chapman and [Ham-
mad] furthered the conspiracy by training co-conspirators in combat
skills through paintball games and the acquisition of weapons, with
the knowledge that some co-conspirators had already traveled to
Kashmir and fired on Indian positions, and with the expectation that
other co-conspirators would do the same, using the training that
Chapman and [Hammad] provided." J.A. 3212-13.
Chapman argues that, even assuming that paintball was a form of
jihad training, the evidence does not reveal any specific intent to join
LET attacks in India. We cannot agree. The record contains evidence
that Chapman continued to provide support to two members of the
group who expressly acknowledged going to Pakistan and firing on
Indian troops while there. Sufficient evidence, therefore, supports the
6
Khan also challenges his convictions under Counts Eleven, Twenty-
Four, Twenty-Five, and Twenty-Seven, conspiracy to use firearms in
relation to a crime of violence, in violation of 18 U.S.C. § 924, for each
of the four counts discussed above. Khan acknowledges that he used a
firearm in relation to those counts. Because, as discussed above, there
was sufficient evidence to support his conviction on those counts, there
was sufficient evidence to support his conviction for the related firearms
counts.
UNITED STATES v. KHAN 13
district court’s factual findings and, accordingly, the conspiracy con-
viction.
2.
Chapman next challenges his conviction under Count Five for con-
spiracy to provide material support to LET, a terrorist organization,
in violation of 18 U.S.C. § 2339A. The thrust of Chapman’s challenge
in this regard is that much of the evidence the government relies upon
to support his conviction on this count predates the statute criminaliz-
ing such conduct. Conspiracy to provide material support to terrorists
was not made a crime until October 26, 2001; until that date, § 2339A
was a substantive crime only.
Chapman’s argument, however, overlooks the fact that, like Khan,
he assisted Singh in purchasing parts for a UAV with video surveil-
lance equipment designed primarily for military and scientific use. He
provided this assistance after October 26, 2001. Export of this equip-
ment was controlled by law; its uses as a "Military Unmanned Aerial
Vehicle" include reconnaissance, weapons targeting, and similar mili-
tary purposes. Even assuming that Chapman’s ongoing training activ-
ities with the paintball group did not qualify as a conspiracy for
purposes of § 2339A, the district court specifically found that provid-
ing paramilitary equipment to a known LET official certainly did, and
we agree.
3.
Chapman challenges his conviction under Count Twenty for pos-
sessing a firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(c). In order to prove guilt under this statute, the
government needs "to present evidence indicating that the possession
of a firearm furthered, advanced, or helped forward" a crime of vio-
lence. United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). The
district court found that Chapman’s transfer of a Saiga .308 rifle to
Hamdi in December 2000, knowing that Hamdi had traveled to LET
camps and fired on Indian troops and was engaging in the paintball
training to prepare for jihad, "furthered the conspiracy to violate the
Neutrality Act." J.A. 3229. Because the transfer of the weapon fur-
thered the conspiracy to violate the Neutrality Act, the district court
14 UNITED STATES v. KHAN
concluded, Chapman’s possession of the weapon furthered the con-
spiracy. Id.Chapman disputes the factual underpinnings of the district court’s
conclusion, arguing that "the evidence is unequivocal that it was not
until January of 2002 that Hamdi told Chapman that he had fired on
Indian positions in Kashmir." Appellants’ Br. at 54. To the contrary,
however, Hamdi testified that he told Chapman that he had fired on
Indian positions in September of 2000, prior to the transfer of the
weapon. This evidence was sufficient to support the district court’s
conclusion that Chapman possessed a rifle in furtherance of a viola-
tion of the Neutrality Act, a crime of violence.
4.
The district court found that Chapman was guilty as to Count
Twenty-Two because, again in violation of 18 U.S.C. § 924(c), he
used firearms while he was at the LET camp in furtherance of, among
other crimes of violence, a conspiracy to violate the Neutrality Act
and a conspiracy to provide material support to LET. Chapman chal-
lenges this finding, arguing that all he did was fire five bullets at a
paper target at the LET camp and that the act did nothing to further
any crimes of violence. There is no merit to this argument. Even if
we were to credit, and we do not, his theory that firing "only" five
bullets as training for the conspiracy to violate the Neutrality Act does
not constitute use of a firearm for purposes of § 924(c), it ignores the
testimony of Hamdi and others about the training in and extensive use
of firearms at the LET camps. This evidence amply supports a finding
that Chapman used firearms at the LET camp in furtherance of the
conspiracy to commit a crime of violence.
C. Hammad’s Conviction
Hammad was convicted under Count Five of conspiring to contrib-
ute material support to LET in violation of 18 U.S.C. § 2339A
because he knowingly trained individuals through the paintball exer-
cises in military techniques for use with LET. Hammad argues that
he did not do so knowingly. Instead, he argues, he trained members
of the group for recreation and physical fitness and did not train mem-
bers of the group for LET after he learned that LET was engaged in
UNITED STATES v. KHAN 15
7
armed conflict with India. This assertion, however, is belied by the
record. Ample evidence demonstrates that Hammad continued to train
people in his paintball group after he learned that some members of
the group were going to work with LET in the fight against India. In
light of the overwhelming evidence to the contrary, the district court
expressly declined to "credit [Hammad’s] testimony that paintball
was strictly for recreation and physical fitness." J.A. 3207. We con-
clude that sufficient evidence supports Hammad’s conviction for
knowingly providing material support to LET in the form of trained
personnel.
In short, we conclude that sufficient evidence supported all convic-
tions for all defendants.
III.
A. Denial of Motion to Sever
Defendants Chapman and Hammad argue that the district court
erred in denying their motions to sever their trials from Khan’s. They
contend that the evidence admitted against Khan concerning the con-
spiracies to aid Al-Qaeda and the Taliban, which would not have been
admitted against Chapman and Hammad in a separate trial, was so
prejudicial as to deny them their right to a fair trial. We disagree.
"The grant or denial of a motion for severance . . . is within the trial
court’s discretion and will not be overturned absent a clear abuse of
that discretion." United States v. West, 877 F.2d 281, 287-88 (4th Cir.
1989). "Generally, individuals indicted together should be tried
together," United States v. Strickland, 245 F.3d 368, 384 (4th Cir.
2001) (internal quotation omitted), and "[a] defendant is not entitled
7
Hammad also challenges his conviction under Count One for the
same reasons as Chapman. We deny his challenge for the same reasons
we deny Chapman’s. See, supra, Section II. B. 2. Finally, Hammad chal-
lenges his conviction under Count Eleven, conspiracy to use firearms in
relation to a crime of violence in violation of 18 U.S.C. § 924(o).
Because evidence demonstrates that Hammad engaged in the sale and
transfer of AK-47s among the conspirators, we find that sufficient evi-
dence supports his conviction on this count.
16 UNITED STATES v. KHAN
to severance merely because separate trials would more likely result
in acquittal, or because the evidence against one defendant is not as
strong as that against the other." Id. (internal quotation omitted). A
defendant must instead "show prejudice in order for the court’s ruling
to constitute an abuse of discretion. . . . Convictions should be sus-
tained if it may be inferred from the verdicts that the [fact finder]
meticulously sifted the evidence." United States v. Porter, 821 F.2d
968, 972 (4th Cir. 1987).
In this case, Chapman and Hammad fail to demonstrate prejudice
resulting from the district court’s ruling. The record instead shows
that the judge, as factfinder, "meticulously sifted the evidence"
against all of the defendants and did not demonstrate prejudice toward
the other defendants based on the evidence admitted against Khan.
Chapman was charged with seven counts and found not guilty of two
of them. Hammad was charged with seven counts and found not
guilty of four of them. Defendant Caliph was acquitted entirely. These
particularized findings, along with the fact that defendants can point
to no instances in the record in which the district judge displays preju-
dice toward defendants, indicate that the defendants each received a
fair trial based on the evidence properly admitted against them and
not on the evidence admitted against their co-defendants. We there-
fore hold that the district court did not abuse its discretion in refusing
to sever Chapman and Hammad’s trials from Khan’s.
B. Waiver of Jury Trial Rights
Their severance motion having been denied, Chapman and Ham-
mad moved in the alternative for a waiver of jury trial pursuant to
Federal Rule of Criminal Procedure 23.8 Khan joined this motion, the
8
The motion, which Chapman filed and Hammad joined, provided that
[a]lternatively, [defendants] request[ ] that, if this court denies
[their] renewed severance motion, then the court permit [them]
to waive trial by jury. Under Rule 23(a), Fed. R. Crim. P., both
the accused and the government must consent to the jury waiver.
A bench trial would likely result in a much shorter trial and,
most certainly, would afford the accused with the opportunity to
receive a fair trial.
J.A. 220-21.
UNITED STATES v. KHAN 17
government agreed to the requested waiver, and the district court ulti-
mately granted it. The court did not, however, obtain a signed jury
trial waiver from the defendants as opposed to their counsel. The
court also did not conduct any colloquy with defendants on the record
concerning the waiver.
The three defendants now argue that the jury trial waiver was
invalid because the district court did not obtain their written waiver
or otherwise conduct a colloquy on the record to determine that their
waiver was knowing, voluntary, and intelligent. See, e.g., Adams v.
United States, 317 U.S. 269, 277-78 (1942) (noting that a defendant’s
waiver of a jury trial right must be competent and intelligent). We
review this claim de novo. United States v. Robertson, 45 F.3d 1423,
1430 (10th Cir. 1995).
Federal Rule of Criminal Procedure 23(a) states
If the defendant is entitled to a jury trial, the trial must be
by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.
Fed. R. Crim. P. 23(a). Defendants rely heavily on cases, most nota-
bly United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995), in
which other circuits have suggested that a Rule 23(a) waiver pre-
sented by counsel is inadequate, absent some other showing to satisfy
an appellate court that it was actually knowing, voluntary, and intelli-
gent.
In this circuit however, we have not imposed such a requirement.
In United States v. Hunt, 413 F.2d 983 (4th Cir. 1969), we held that,
while it would be "better practice" for a district judge to interrogate
a defendant who claims through counsel that he wants to waive his
jury trial right, nothing in the applicable case law, Rule 23(a) itself,
or the Constitution requires it. Id. at 984; see also United States v.
18 UNITED STATES v. KHAN
Alvarez, 1998 U.S. App. LEXIS 8788 at *6 (4th Cir.) (unpublished)
("We have held that an in-court colloquy to determine voluntariness
of the waiver is good practice, but it is not required by the Constitu-
tion or Rule 23(a).").
In this case, we find that the record supports a conclusion that the
waivers were voluntary, knowing, and intelligent, even though signed
by counsel and in the absence of a colloquy. The motions for waiver
here were made in the alternative to the motions for severance as a
calculated part of the defendants’ trial strategy to prevent "inflamma-
tory and prejudicial evidence" from biasing a jury. J.A. 220.
Defendants Chapman and Hammad now claim that their waiver
was not knowing or voluntary as a back door attack on the district
court’s denial of their motions to sever. In other words, these defen-
dants argue that when the district court denied their motion to sever,
the prospect of having a jury hear potentially inflammatory evidence
against Khan forced them to relinquish their right to a jury trial. This
argument is unpersuasive. Criminal defendants must frequently
choose from among less than desirable alternatives. The fact that
defendants would have preferred severed jury trials does not make
their choice of a non-severed bench trial over a non-severed jury trial
unknowing or involuntary.
In short, the record reflects that the defendants’ Rule 23 waivers
were a knowing, voluntary, and intelligent part of their trial strategy,
and we uphold them as valid.
C. The Validity of Counts Five and Eleven
All three defendants contend that Counts Five and Eleven are
invalid because they constitute "conspiracies to conspire." Specifi-
cally, Count Five alleged a conspiracy to provide material support in
carrying out a violation of 18 U.S.C. § 956, which criminalizes con-
spiracy to kill or injure persons or damage property in a foreign coun-
try. Count Eleven alleged a conspiracy to use firearms in connection
with a conspiracy to commit a crime of violence. Because one cannot
"conspire to conspire," defendants argue, these Counts should be dis-
missed. We disagree.
UNITED STATES v. KHAN 19
The facial validity of the statutes under which the defendants were
charged presents a question of law which we review de novo. Multi-
Channel TV Cable Co. v. Charlottesville Quality Cable Corp., 65
F.3d 1113, 1123 (4th Cir. 1995).
Under Count Five, defendants were convicted of "conspir[ing] to,"
18 U.S.C. § 2339A(a), "provide[ ] material support . . . intending that
[it] be used . . . in carrying out . . . a violation of . . . [18 U.S.C.
§ 956]." J.A. 3220. Section 956, in turn, criminalizes "[c]onspiracy to
kill, kidnap, maim, or injure persons or damage property in a foreign
country." 18 U.S.C. § 956. Under Count Eleven, defendants were
convicted of conspiring to use, carry, or possess a firearm in further-
ance of, inter alia, a conspiracy to violate the Neutrality Act and a
conspiracy to provide services to the Taliban. 18 U.S.C.
§§ 924(c),(o); J.A. 3223. Both Count Five and Count Eleven, in other
words, expressly allow one conspiracy to serve as the predicate for
another conspiracy. Nothing about this statutory framework is uncon-
stitutional, improper, or even unusual.
Courts have recognized that one conspiracy can serve as the predi-
cate for another conspiracy when the "[overarching] conspiracy and
the predicate conspiracy are distinct offenses with entirely different
objectives." United States v. Pungitore, 910 F.2d 1084, 1135 (3rd Cir.
1990); see also United States v. Ruggiero, 726 F.2d 913, 918 (2nd
Cir. 1984) (holding that conspiracies can serve as predicate acts for
a RICO conspiracy); United States v. Brooklier, 685 F.2d 1208, 1216
(9th Cir. 1982) (same). In Count Five, the conspiracy to provide mate-
rial support to terrorism represents a distinct offense with different
objectives from the predicate conspiracy to kill a person. In Count
Eleven, the conspiracy to use or possess a firearm represents a distinct
offense with different objectives from the predicate conspiracy to vio-
late the Neutrality Act or provide services to the Taliban. Therefore,
the underlying conspiracies may properly serve as predicates for the
overarching conspiracies alleged.
More fundamentally, the statutes in question expressly contemplate
allowing one conspiracy to serve as the predicate offense for another
conspiracy. Defendants point to no constitutional or other reason why
these statutes should be struck down as invalid, and we find none.
20 UNITED STATES v. KHAN
D. Multiple Firearm Sentences for Multiple Predicate Offenses
Khan and Chapman next argue that it was error for the district
court to sentence them separately for each separate 18 U.S.C. § 924(c)
firearms offense because those offenses all related to the same crimi-
nal episode. Under our precedent, this argument fails.
This court has previously held, based on the plain language of the
statute, that convictions for separate crimes of violence can lead to
multiple sentences under § 924(c). United States v. Luskin, 926 F.2d
372, 376-77 (4th Cir. 1991). "There is no ambiguity in section 924(c).
It states that whenever a person commits a crime of violence or drug
trafficking crime and uses or carries a gun, the person shall be sen-
tenced to a prison term that runs consecutive to the person’s sentence
for the underlying crime of violence or drug trafficking crime and
consecutive to all other sentences." Id. at 376. As long as the imposi-
tion of multiple § 924(c) sentences does not violate the Double Jeop-
ardy Clause, we will uphold those sentences in accordance with the
plain language of the statute.9 Id.
9
The dissent argues that "[i]n applying Camps and Luskin, we must
determine how many ‘uses’ are represented by the acts a defendant per-
formed with firearms." Dissenting Op. at 35. This position may derive
from the Camps language that "multiple, consecutive sentences under
section 924(c)(1) are appropriate whenever there have been multiple,
separate acts of firearm use or carriage, even when all of those acts relate
to a single predicate offense." United States v. Camps, 32 F.3d 102, 106
(4th Cir. 1994). Extrapolating from Camps, the dissent asserts that
"[f]rom the evidence, it is impossible to determine if Khan’s firings had
separate objectives, different effects on the conspiracy, or occurred at
times not sufficiently proximate to justify multiple sentences. Evidence
does not exist in the record to conclude the firings constitute separate and
distinct ‘uses’ for sentencing purposes." Dissenting Op. at 36-37.
Here, however, Khan was convicted of four predicate crimes of vio-
lence, not a "single predicate offense," and we therefore need not count
"uses." See Camps, 32 F.3d at 106. Though Khan’s four crime-of-
violence convictions may have arisen from his activities during a single
month in October 2001, this court has expressly and consistently rejected
the notion that the convictions should therefore be considered a single
"episode" for purposes of underpinning a § 924(c) violation. See United
UNITED STATES v. KHAN 21
In order to determine whether consecutive § 924(c) sentences vio-
late the Double Jeopardy Clause, "[t]he court must concern itself with
whether the underlying crimes of violence supporting the § 924(c)
charges are duplicative under a double jeopardy analysis. As long as
the underlying crimes are not identical under the Blockburger analysis,10
then consecutive § 924(c) sentences are permissible." Id.
Defendants concede that each of the underlying crimes of violence
in this case supporting the § 924(c) charges "may be a separate
offense for purposes of a Blockburger analysis," and, accordingly,
that they do not run afoul of the Double Jeopardy Clause. Appellants’
Reply Br. at 46. They, however, attempt to distinguish Luskin, argu-
ing that both the indictment and the district court opinion listed all of
the predicate counts on the same general factual allegation. That dis-
tinction, however, emphasizes an irrelevancy. The plain language of
the statute does not speak of "general factual allegations" or a "course
of conduct." Instead, it states that a defendant shall be given addi-
tional sentences for each "second or subsequent conviction." 18
States v. Luskin, 926 F.2d 372, 276 (4th Cir. 1991) (insisting that "there
is no ‘episode’ test under section 924(c)," referring to the requirement in
some circuits that the prerequisite convictions supporting a § 924(e) vio-
lation be "distinct in time, rather than literal convictions" (quoting United
States v. Towne, 870 F.2d 880, 889 (2d Cir. 1989))).
Instead, in this circuit the four crime-of-violence convictions are con-
sidered separate predicate offenses provided that they do not violate the
Double Jeopardy Clause. As we discuss below, the defendants concede
that those underlying crimes of violence constitute separate offenses and
do not implicate double jeopardy concerns for purposes of Blockburger.
"As long as the underlying crimes are not identical under the Blockbur-
ger analysis, then consecutive 924(c) sentences are permissible." Luskin,
926 F.2d at 377.
Because Khan’s four crime-of-violence convictions constitute separate
predicate offenses, each may support a consecutive § 924(c) sentence
without requiring the court first to enumerate "uses" of firearms.
10
Under the Blockburger analysis, multiple statutory provisions
describe identical offenses unless "each provision requires proof of a fact
which the other does not." Blockburger v. United States, 284 U.S. 299,
304 (1932).
22 UNITED STATES v. KHAN
U.S.C. § 924(c)(1)(C); see also Deal v. United States, 508 U.S. 129,
135 (1993) (noting that there is "utterly no ambiguity" in the meaning
of the word "conviction" as used in § 924(c)). In other words, there
is no housekeeping requirement under the statute or Luskin obliging
either the government or the district court to present the facts in such
a manner as to align the use of a particular firearm with a particular
predicate offense. The fact that the district court chose to present the
facts of this case as one list of factual allegations does not mean that
the crimes that derived from those factual allegations were all identi-
cal as a matter of law.11
E. Section 924(c) Sentence as Unconstitutional
Citing United States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah,
2004), defendants argue that the lengthy sentences imposed by the
"count-stacking" provisions of § 924(c) are so long as to constitute a
violation of due process, equal protection, and the Eighth Amendment
prohibition against Cruel and Unusual punishment. In Angelos, the
district court opined that § 924(c) can mandate sentences that are out-
side of "the realm of reason." Id. at 1261. Notwithstanding his per-
sonal opinion, however, the district judge concluded that the relevant
precedent compelled him to impose the sentence mandated by the
statute. Id. We agree with the Angelos court that we are bound by pre-
cedent to uphold the constitutionality of the § 924(c) sentences
imposed in this case.
Defendants’ Eighth Amendment argument is simply unavailing.
"Severe, mandatory penalties may be cruel, but they are not unusual
in the constitutional sense, having been employed in various forms
throughout our Nation’s history." Harmelin v. Michigan, 501 U.S.
11Defendants point to United States v. Cappas, 29 F.3d 1187 (7th Cir.
1994) for the proposition that conflated factual descriptions mandate
reversal because they allow for multiple § 924(c) sentences for the same
offense. Cappas, however, relied on the fact that the conflated facts made
it impossible for the appellate court to ascertain whether the jury prop-
erly followed the law and actually found that a firearm was used during
each necessary predicate offense. Id. at 1195. In this case, with a bench
trial, we do not have to worry that the fact finder did not understand the
law simply because she did not spell it out in detail.
UNITED STATES v. KHAN 23
957, 994 (1991). "The Supreme Court has never held that a sentence
to a specific term of years, even if it might turn out to be more than
the reasonable life expectancy of the defendant, constitutes cruel and
unusual punishment." United States v. Beverly, 369 F.3d 516, 537
(6th Cir. 2004). Even a mandatory life sentence passes constitutional
muster. United States v. Kratsas, 45 F.3d 63, 69 (4th Cir. 1995).
Accordingly, we hold that the mandatory sentences imposed on
defendants in this case, while lengthy, do not constitute cruel and
unusual punishment pursuant to the Eighth Amendment.
Defendants’ arguments under the Equal Protection and Due Pro-
cess Clauses are equally unavailing. Defendants acknowledge that
§ 924(c) violates the Equal Protection and Due Process clauses only
if they can demonstrate that the statute lacks a rational basis. Appel-
lants’ Br. at 77. The statute easily meets this standard. Discouraging
and preventing the use of firearms in the commission of crimes of
violence constitutes a legitimate state purpose. See United States v.
Angelos, 433 F.3d 738, 754 (10th Cir. 2006). In addition, mandatory
sentencing rationally relates to this legitimate purpose by incapacitat-
ing those who have demonstrated a willingness to engage in this
behavior and deterring those who may contemplate engaging in this
behavior. Id. Therefore, we hold that the mandatory § 924(c) sen-
tences imposed in this case violate neither equal protection nor due
process.12
F. The Use of Caliph’s Statements at Trial
The defendants argue that it was a violation of the Sixth Amend-
ment’s Confrontation Clause for the district court to admit the state-
12
Defendants also argue that the mandatory sentences in this case vio-
late separation of powers principles by placing sentencing decisions in
the hands of the legislature and not the judiciary. This argument has been
roundly rejected. See, e.g., Chapman v. United States, 500 U.S. 453, 467
(1991)("Congress has the power to define criminal punishments without
giving the courts any sentencing discretion."); Rummel v. Estelle, 445
U.S. 263, 274 (1980) ("[O]ne could argue without fear of contradiction
by any decision of this Court that for crimes concededly classified and
classifiable as felonies, . . . the length of the sentence actually imposed
is purely a matter of legislative prerogative.").
24 UNITED STATES v. KHAN
ments of their co-defendant, Caliph, against them without allowing
them the opportunity to cross-examine him. They contend that the
district court improperly considered Caliph’s statements to FBI agents
that the paintball activities were intended to be training for jihad over-
seas, and that the trainees obtained AK-47-style weapons because that
was the type of weapon used in combat overseas without allowing
them the opportunity to cross-examine Caliph on that point. Specifi-
cally, they argue that the district court improperly used Caliph’s state-
ments against them, even though they were supposed to be admitted
only against Caliph. For the following reasons, we hold that, to the
extent that the admission of these statements was in error, the error
was harmless.
The Supreme Court has recently held that, under the Sixth Amend-
ment, "testimonial" out-of-court statements, such as those made dur-
ing police interrogation, are inadmissible against a defendant unless
that defendant has had the opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 68-69 (2004). Defendants
argue that Caliph’s statements were testimonial because they were the
result of police interrogation, and that they were admitted without the
defendants having the opportunity for previous cross-examination.
The government responds that defendants waived their right to cross-
examine Caliph over these statements because they did not affirma-
tively ask the court to retain Caliph for cross-examination before he
was acquitted.
We do not reach the question of whether Caliph’s statements were
admitted in violation of the Sixth Amendment because, to the extent
that any error occurred, it was harmless. See Lilly v. Virginia, 527
U.S. 116, 139-40 (1999) (noting that Confrontation Clause errors are
subject to harmless error analysis). Under harmless error analysis, if
the government can demonstrate that the alleged error did not affect
the defendants’ substantial rights, we will not overturn the conviction
on the basis of that error. United States v. Rodriguez, 433 F.3d 411,
416 (4th Cir. 2006).
The district court expressly found that Caliph’s statement was "cu-
mulative of other testimony," including "at least three or four other
witnesses who essentially said the same thing." J.A. 3268. The court
also expressly noted that Caliph’s testimony was not the main piece
UNITED STATES v. KHAN 25
of evidence on which it relied for its characterization of the paintball
group and that "[t]here was tons of other evidence besides the state-
ment of Caliph." J.A. 3269. The court concluded that the admission
of Caliph’s statement was harmless in light of the "other evidence on
the same issue." Id. Our independent review of the record confirms
that Caliph’s statements were duplicative of a wealth of other evi-
dence and that the defendants’ convictions and sentences would not
have differed had Caliph’s statements not been admitted. See, e.g.,
J.A. 3178-80 (statement of Yusuf Wells, an outside observer of the
paintball activity expressly found credible and reliable by the district
court, indicating that paintball was a means of training); Id. at 3180
(statements of other witnesses saying same). We therefore reject
defendants’ argument that the admission of Caliph’s statements con-
stitutes reversible error.
G. The Use of Chapman’s Statements against Him for the Purposes
of Impeachment.
Chapman testified at trial that he attended the LET camps and did
not hide his attendance because his motives were innocent. The gov-
ernment impeached this testimony by introducing un-Mirandized
statements that Chapman made to FBI agents that he did not attend
the LET camps. Chapman contends that these statements, which he
made to FBI agents after being held in near solitary confinement for
weeks and which the district court found were obtained in violation
of Miranda, were also involuntary. As such, Chapman argues, they
were not useable against him for any purpose. This argument fails.
The parties agree that statements obtained in violation of Miranda
can be used to impeach a witness, but statements that were made
involuntarily cannot be used against a defendant at all. See, e.g.,
Mincey v. Arizona, 437 U.S. 385, 398 (1978) (noting that involuntary
statements are statements made that were not the product of rational
or free will). The issue before us is whether the statements in question
were involuntary. Though we "must make an independent determina-
tion on the issue of voluntariness, the district court’s findings of fact
on the circumstances surrounding the confession are to be accepted
unless clearly erroneous." United States v. Cristobal, 293 F.3d 134,
140 (4th Cir. 2002).
26 UNITED STATES v. KHAN
In this case, the district court found that:
although Chapman’s statements were procured in violation
of his constitutional rights under Miranda, they were not
involuntary under Mincey. There was no evidence that gov-
ernment agents coerced Chapman’s statements through
physical pressure or imminent threats of physical harm.
Moreover, the statements were false exculpatory statements
rather than admissions, which suggests that Chapman’s
decision to make the statements was a calculated one, and
thereby that his rational intellect and free will had not been
overborne. For these reasons, the statements were not
excluded for purposes of impeachment.
J.A. 3383.
Our review of the record in this case indicates that the district court
did not clearly err in making its factual findings concerning the con-
fession, so we accept them as true. See J.A. 244-80 (indicating that
Chapman received medical attention from the FBI before the interro-
gation and providing no indication of physical force or threats of
physical force against him).
For the statements to be off limits to cross-examination as "invol-
untary," the facts would have to show that they were not "the product
of a rational intellect and a free will." Mincey, 437 U.S. at 398 (inter-
nal quotation omitted) (regarding the interrogation of a seriously
wounded defendant suffering unbearable pain, almost in a coma,
lying on his back in an intensive care unit encumbered by tubes, nee-
dles, and breathing apparatus). "To determine whether a defendant’s
will has been overborne or his capacity for self determination criti-
cally impaired, [we] must consider the ‘totality of the circumstances,’
including the characteristics of the defendant, the setting of the inter-
view, and the details of the interrogation." Cristobal, 293 F.3d at 140.
In this case, the totality of the circumstances indicates that Chapman’s
statements were voluntary. Chapman freely answered some questions
and declined to answer others. He joked with the agents, told them
that he did not need his rights read to him, and seemed anxious to talk
with them. On this record, the district court’s refusal to find Chap-
UNITED STATES v. KHAN 27
man’s statements to be involuntary was correct. Accordingly, use of
those statements on cross-examination was appropriate.13
H. Selective Prosecution
Defendants finally argue that the district court erred in denying
them discovery on their selective prosecution claim. Specifically, they
contend that the government has not investigated and prosecuted
other alleged terrorist organizations, such as the Cambodian Freedom
Fighters or the Irish Republican Army, as aggressively as it has inves-
tigated and prosecuted them, leading to an unconstitutional denial of
their right to equal protection under the law."
A selective-prosecution claim asks a court to exercise judicial
power over a ‘special province’ of the Executive" and, accordingly,
must pass a high threshold in order to succeed. United States v. Arm-
strong, 517 U.S. 456, 464 (1996). The Executive’s discretion is not,
however, limitless. Equal protection demands that "the decision
whether to prosecute may not be based on an unjustifiable standard
such as race, religion, or other arbitrary classification." Id. (internal
quotation omitted). In addition, "[a] defendant may demonstrate that
the administration of a criminal law is directed so exclusively against
a particular class of persons . . . with a mind so unequal and oppres-
sive that the system of prosecution amounts to a practical denial of
equal protection of the law." Id. at 464-65 (internal quotation omit-
ted).
In order to obtain discovery on a selective prosecution claim, a
defendant must make "a credible showing of different treatment of
similarly situated persons." Id. at 470. This showing "should itself be
a significant barrier to the litigation of insubstantial claims." Id. at
464. In deference to executive discretion, we have held that "defen-
13
Even if it was error to allow Chapman to be cross-examined on the
basis of the false exculpatory statements at issue, the error was harmless.
The statements were relevant only to undermine Chapman’s credibility.
Yet, the district judge specifically noted that she found many reasons to
question Chapman’s credibility, and that her conclusions about his lack
of credibility "were not based solely or even to any significant degree on
that particular false exculpatory statement." J.A. 3271.
28 UNITED STATES v. KHAN
dants are similarly situated when their circumstances present no dis-
tinguishable legitimate prosecutorial factors that might justify making
different prosecutorial decisions with respect to them." United States
v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996) (emphasis added). Finally,
"when we review a district court’s discovery order in support of a
selective-prosecution claim, we are determining the legal adequacy of
the evidence. We review the legal adequacy of evidence de novo." Id.
at 743.
In the present case, defendants do not make a showing that the
other alleged terrorist groups about which they complain are "simi-
larly situated" to them for purposes of selective prosecution. Defen-
dants contend that "the only distinguishing factor between [the other
alleged terrorist groups] and the appellants, is that the appellants are
Muslim in a post-9/11 world." Appellant’s Br. at 88. This contention,
however, misses the very obvious fact that defendants were accused
of supporting LET, a terrorist group that supported the Taliban and
Al-Qaeda, which were in direct conflict with the United States. The
Executive branch has the right to focus its prosecutorial energies on
alleged terrorists groups that present the most direct threat to the
United States and its interests. Accordingly, we hold that the district
court did not err in denying discovery on defendants’ selective prose-
cution claim because the available evidence demonstrates that legiti-
mate prosecutorial factors motivated the government’s prosecutorial
decisions.
In short, we hold that all of the convictions in this case were sup-
ported by substantial evidence and were obtained without material
error. We also hold that Khan’s and Chapman’s sentences were cor-
rectly imposed. Accordingly, we affirm all of the convictions for all
three defendants and the sentences of Khan and Chapman.
IV.
The government cross-appeals Hammad’s sentence, arguing that
the district judge erred in reducing Hammad’s sentence below the rec-
ommended Sentencing Guidelines range. This cross-appeal causes us
once again to consider what makes a federal sentence "reasonable"
after United States v. Booker, 543 U.S. 220, 264 (2005) ("The courts
of appeals review sentencing decisions for unreasonableness."). For
UNITED STATES v. KHAN 29
the reasons discussed below, we hold that, under our precedent, Ham-
mad’s sentence represents an unreasonable downward variance from
his recommended guideline range and, as a result, we remand for re-
sentencing.14
In United States v. Green, 436 F.3d 449, 455-56 (4th Cir. 2006),
we held that
to sentence a defendant, district courts must (1) properly cal-
culate the sentence range recommended by the Sentencing
Guidelines; (2) determine whether a sentence within that
range and within statutory limits serves the factors set forth
in [18 U.S.C.] § 3553(a) and, if not, select a sentence that
does serve those factors; (3) implement mandatory statutory
limitations; and (4) articulate the reasons for selecting the
particular sentence, especially explaining why a sentence
outside of the Sentencing Guideline range better serves the
relevant sentencing purposes set forth in § 3553(a).
Id. We also emphasized that any variance from the Guidelines range
must be based on the § 3553(a) factors and further indicated that, for
sentences falling outside of the Guidelines range, a district court must
provide an adequate statement of reasons for the variance and rely on
permissible factors in making the variance. Id. at 456-57. Finally, we
noted that a reasonable sentence cannot give "excessive weight" to
any relevant factor and must "effect[ ] a fair and just result." Id. at
457.
We later enhanced this understanding of reasonableness in United
States v. Moreland, 437 F.3d 424 (4th Cir. 2006), noting that, while
the district court does not need to discuss the § 3553(a) factors in
checklist fashion, the court must explain the reasoning behind any
sentence, particularly sentences that vary from the range recom-
14
We note that the district court sentenced Hammad on July, 29, 2005,
without the benefit of our precedent in United States v. Green, 436 F.3d
449 (4th Cir. 2006), or United States v. Moreland, 437 F.3d 424 (4th Cir.
2006). Accordingly, our conclusion that Hammad’s sentence does not
accord with those precedents is not meant in any way as criticism of the
district court.
30 UNITED STATES v. KHAN
mended by the Guidelines. Id. at 433. In particular, we held that "[t]he
farther the court diverges from the advisory guideline range, the more
compelling the reasons for the divergence must be." Id. at 434.
With this guidance in mind, we now turn to the sentence in this
case. The parties agree that the district judge properly calculated
Hammad’s Guidelines range as 97-121 months imprisonment. The
52-month sentence imposed on him therefore reflected a significant
reduction.15 The district court explained the reduction as follows:
Among the things that the Court is required to look at under
section 3553(a) [are] any disparities that might arise among
defendants with similar records and found guilty of similar
conduct. Both Mr. Surratt and Mr. [Hammad] had military
experience, as I recall. Both of them had completely clean
records, and I think their overall participation in the paint-
ball and the activities that led to their convictions was
roughly equivalent.
There are some differences which I have taken into consid-
eration. For example, there was evidence during the trial
about conversations between this defendant and Mr. Royer
about the investigation that was going on. As you recall,
there [were] discussions about the destruction of computer
files and that sort of thing, which suggests to me perhaps a
slightly higher level of culpability but not significantly so.
I think that an appropriate sentence, taking into consider-
ation what this defendant did, his background, and the needs
for the sentence reflecting the seriousness of the offense to
promote respect for law and also, however, to be just pun-
ishment, to serve as adequate deterrence to those in the pub-
lic, to protect the public from further harm from the
defendant, that a proper sentence is much closer to that that
was imposed on Mr. Surratt.
And for those reasons, it is the sentence of the Court that as
15
Hammad’s sentence was still within the statutory range.
UNITED STATES v. KHAN 31
to . . . the three counts of conviction . . . the defendant be
committed to the custody of the Bureau of Prisons for a
period of 52 months.
J.A. 3448-49. Surratt had earlier been sentenced to 46 months.
We first note that the variance in this case reduced Hammad’s sen-
tence from his recommended guidelines sentence by almost half.
Accordingly, under the principles outlined in Moreland, the district
court must present compelling reasons for the variance. The judge
indicated that she considered
what this defendant did, his background, and the needs for
the sentence reflecting the seriousness of the offense to pro-
mote respect for law and also, however, to be just punish-
ment, to serve as adequate deterrence to those in the public,
to protect the public from further harm from the defendant
....
J.A. 3448-49. However, the sentence reduction imposed focused
almost exclusively on Surratt’s sentence. It was not, at heart, the nec-
essary independent review of all of the § 3553(a) factors culminating
in a sentence. It was, instead, an independent review of all of the
§ 3553(a) factors culminating in the conclusion that Hammad’s sen-
tence should be similar to Surratt’s. This process provided "excessive
weight, " Green, 436 F.3d at 457, to "the need to avoid unwarranted
sentence disparities among defendants with similar records who have
been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). The
variance, by focusing almost exclusively on Surratt’s sentence, did
not give proper weight to the other § 3553(a) factors and, accordingly,
led to an unreasonable sentence.
Moreover, the facts do not support the district court’s conclusion
that Hammad and Surratt were similarly situated. Surratt was the sec-
ond of the eleven defendants to plead guilty, only one day after the
first defendant to do so. Surratt accepted responsibility and cooper-
ated by providing information that led to a superseding indictment
against his co-conspirators, and then testifying as a witness at trial.
The district court gave Surratt a three-level sentence reduction for that
acceptance of responsibility.
32 UNITED STATES v. KHAN
In contrast, Hammad gave false statements to investigators and
destroyed evidence before trial, in addition to providing "incredible"
testimony at trial. As a result, the district judge enhanced Hammad’s
sentencing level by two for obstruction of justice. In other words, the
difference between the recommended sentencing ranges for Surratt
and Hammad reflect the fact that Surratt accepted responsibility and
provided valuable assistance to the government, while Hammad never
accepted responsibility and obstructed justice both before and during
his trial.
By giving Hammad a significant sentence reduction on the theory
that he was "similarly situated" to Surratt, the district court imper-
missibly ignored the primary reason that Hammad and Surratt had dif-
ferent recommended Guidelines ranges in the first place: the fact that
the Guidelines treat those who accept responsibility and those who
obstruct justice differently. We cannot accept the district court’s con-
clusion which, in effect, provides no benefit to Surratt for substan-
tially assisting the government and provides no punishment to
Hammad for obstructing justice. Such a conclusion both ignores Con-
gress’ determination concerning how to treat obstruction of justice
and acceptance of responsibility, and potentially discourages benefi-
cial behavior from future defendants.
We accordingly remand with instructions to re-sentence Hammad
in accordance with the principles outlined in Green and Moreland.
V.
In conclusion, we hold that all of the convictions in this case were
supported by sufficient evidence and were obtained without material
error. We affirm those convictions and the sentences of Khan and
Chapman. We further hold that Hammad’s sentence was an unreason-
able variance from his recommended guideline range and remand for
re-sentencing.
AFFIRMED IN PART; REMANDED IN PART
GOODWIN, District Judge, concurring in part and dissenting in part:
I concur in the majority opinion except as to Part III.D, which
affirms sentences imposed under 18 U.S.C. § 924(c) for Seifullah
UNITED STATES v. KHAN 33
Chapman and Masoud Khan. Though I agree we should affirm Chap-
man’s § 924(c) sentences, I would merge Khan’s § 924(c) convictions
and remand for the imposition of one sentence of 120 months for his
three gun convictions.
I.
The Superseding Indictment charges sixteen separate violations of
18 U.S.C. § 924(c). J.A. 151-52. Most of the counts charge multiple
defendants and include the use of different firearms in different loca-
tions on different dates. The shotgun-style Indictment simply lists the
defendants involved, the approximate dates, the firearms used, and the
general location for each count in less than one page. No attempt is
made to provide notice to the defendants as to which counts are tied
to which underlying predicate offenses. Instead, the Indictment ties
the sixteen alleged § 924(c) violations to all offenses outlined in
Counts 1-10, which is troubling because not all defendants charged
in the gun counts are charged in each of the first ten counts. J.A. 151.
Khan received three convictions under § 924(c). For each count
Khan was convicted of, the Indictment lists "Khan, Royer, Chapman,
and Abdur-Raheem" as the defendants involved. Rather than provide
exact dates, as do most of the other gun counts, the Indictment alleges
Counts 24-27 occurred in "October 2001." The location is not specific
but rather lists the entire country of "Pakistan." The only distinction
made relates to the type of firearm used — Count 24 charges the use
of an AK-47 automatic rifle; Count 25 the use of a 12mm antiaircraft
gun; and Count 27 the use of a rocket-propelled grenade. In a foot-
note, the district court explained the limited nature of Khan’s use of
these weapons: "We accept the defendants’ evidence that the firing of
these weapons was highly limited in that very little ammunition was
provided." J.A. 3195. According to the evidence, Khan fired only one
bullet with each weapon at some form of target. Id.
For these three convictions, Khan received mandatory consecutive
sentences: 120 months for the first § 924(c) conviction, 300 months
for the second, and life in prison for the third. Judge Brinkema
explained that she was compelled to impose the sentences. Id. at
3308. She stated that these crimes were serious, "but there are mur-
derers who get far less time than this, and I have sentenced Al-Qaeda
34 UNITED STATES v. KHAN
members who were planning real attacks on these shores for far less
time . . . and I have to tell you that this is sticking in my craw." Id.
II.
Unlike most circuits,* we allow multiple § 924(c) convictions for
conduct in the same underlying offense. United States v. Camps, 32
F.3d 102, 107-08 (4th Cir. 1994). By allowing convictions for multi-
ple gun uses, even if during the same underlying conspiracy, we com-
ply with congressional intent to harshly punish the use of guns to
commit felonies, and to punish subsequent uses of guns even more
harshly. See id. at 108 (citing 114 Cong. Rec. 22231 (1968)) ("We are
also satisfied that this interpretation best achieves section 924(c)(1)’s
unmistakable objective of ‘persuading the man who is tempted to
commit a federal Felony to leave his gun at home.’"). If multiple
§ 924(c) convictions were not permissible for the same underlying
offense, no deterrent would exist for criminals using guns throughout
an extended conspiracy.
Our rule’s justification is apparent from examining our decisions in
United States v. Camps and United States v. Luskin, 926 F.2d 372 (4th
Cir. 1991). In Camps, the defendant received eight convictions under
§ 924(c). Camps, 32 F.3d at 105. For sentencing purposes, however,
these convictions were grouped, which resulted in only three § 924(c)
sentences. Id. The first sentence was imposed for the use of an AK-
47 during a December 23, 1989 ambush of a rival drug boss. Id. at
103. The second sentence was imposed for a conviction for the use
of an AK-47 and a conviction for the use of an Uzi during another
ambush on January 7, 1990. Id. at 103-04. The third sentence was
imposed for carrying five separate semi-automatic weapons that were
seized from a van that the defendant was using to flee. Id. at 104.
*United States v. Anderson, 59 F.3d 1323 (D.C. Cir. 1995); United
States v. Cappas, 29 F.3d 1187 (7th Cir. 1994); United States v. Lindsay,
985 F.2d 666 (2d Cir. 1993); United States v. Sims, 975 F.2d 1225 (6th
Cir. 1992); United States v. Moore, 958 F.2d 310 (10th Cir. 1992);
United States v. Hamilton, 953 F.2d 1344 (11th Cir. 1992); United States
v. Privette, 947 F.2d 1259 (5th Cir. 1991); United States v. Fontanilla,
849 F.2d 1257 (9th Cir. 1988). But see United States v. Mabry, 3 F.3d
244 (8th Cir. 1993).
UNITED STATES v. KHAN 35
Judge Luttig, writing for the court, explained that for that case only,
the court accepted the government’s concession that multiple firearms
carried at one time can result in only one § 924(c) sentence. Id. at 109
n.9. I would apply this rule to all cases where the different firearms
relate to the same objective, have the same effect on the predicate
crime, and are used or carried proximately in time.
In Camps, though each grouped "use" was tied to the underlying
drug conspiracy, each "use" was directed toward a different objective
of the conspiracy, occurred at distinctly different times, and had dif-
ferent effects on the conspiracy. Criminalizing only the December
1989 use would not account for the fact that the defendant made the
criminal decision to use more guns later to further other objectives of
the conspiracy. Three § 924(c) sentences were justified to account for
the defendant’s multiple uses of firearms.
Multiple sentences under § 924(c) were also justifiable in Luskin,
the case on which the majority relies. Luskin hired someone to kill his
wife. On three distinct occasions, the hitman attempted the murder.
Luskin, 926 F.2d at 373 (stating the first attempt was on March 9, the
second attempt May 30, and the third attempt July 27). The court
imposed a separate § 924(c) sentence for each attempt. Id. at 374. The
attempts, each nearly two months apart, were sufficiently distinct to
justify multiple sentences. Id. at 375 (explaining that before the third
attempt, Luskin offered a $25,000 bonus, and stating Luskin could
have called off the hired gun at any time).
With respect to Khan, however, multiple § 924(c) sentences are not
justifiable.
III.
In applying Camps and Luskin, we must determine how many
"uses" are represented by the acts a defendant performed with fire-
arms. See Camps, 32 F.3d at 109 ("Because there were three separate
uses and/or carryings of the weapons . . . .") (emphasis added). The
majority’s decision in this case fails to consider whether the underly-
ing uses were sufficiently distinct to justify multiple sentences.
Instead, the majority opines that "there is no housekeep-
ing requirement under the statute or Luskin obliging either the govern-
36 UNITED STATES v. KHAN
ment or the district court to present the facts in such a manner as to
align the use of a particular firearm with a particular predicate
offense." Op. at 22. Examining whether a defendant’s conduct con-
tains sufficiently distinct "uses" to justify multiple § 924(c) sentences
is much more than a housekeeping requirement. It is necessary to
ensure the defendant receives a fair sentence and is not punished sep-
arately for conduct that should be merged for sentencing purposes.
Under the majority’s reasoning, no boundaries exist for § 924(c)
prosecutions. That is, a drug conspirator could pick up a gun, place
it on the table to scratch his nose, pick it back up, and receive two
§ 924(c) sentences. An itchy nose could cost him an additional fifteen
years. Likewise, a defendant could carry three dangerous weapons at
one time, be convicted of three § 924(c) sentences, and receive a life
sentence. Applying this statute without boundaries of reason and ordi-
nary meaning leads to absurd results.
In determining how to draw the boundaries, courts examine a num-
ber of factors but primarily focus on the objectives, the effects, and
the timing of the defendant’s conduct. See United States v. Finley,
245 F.3d 199, 206-08 (2d Cir. 2001); United States v. Wilson, 160
F.3d 732, 749 (D.C. Cir. 1998); United States v. Lucas, 932 F.2d
1210, 1222-23 (8th Cir. 1991). Where the "uses" of a defendant have
substantially the same objective, substantially similar effects on the
predicate offense, and are proximate in time to one another, our justi-
fication for sustaining multiple § 924(c) sentences does not exist.
Sustaining three § 924(c) sentences for Khan’s convictions creates
a result Congress surely did not intend. The evidence discloses only
one objective Khan had when firing the weapons, which was to
enhance his training in preparation for moving into Afghanistan. As
Judge Brinkema noted, the evidence on Khan’s firing of the weapons
was highly limited. J.A. 3195. No evidence exists to suggest that each
so-called "use" of the weapons had any kind of different effect on the
predicate conspiracy. There is no evidence to accurately determine the
temporal proximity of the firings. The Indictment does not even
attempt to distinguish the timing of each use, but merely lists each of
Khan’s uses as occurring in October 2001. J.A. 152. From the evi-
dence, it is impossible to determine if Khan’s firings had separate
objectives, different effects on the conspiracy, or occurred at times
UNITED STATES v. KHAN 37
not sufficiently proximate to justify multiple sentences. Evidence
does not exist in the record to conclude the firings constitute separate
and distinct "uses" for sentencing purposes. Accordingly, I would
merge the three § 924(c) convictions for sentencing purposes, and
would remand with instructions to impose a sentence of 120 months
for these convictions.