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UNITED STATES OF
AMERICA, Plaintiff - Appellee, versus MOHAMAD YOUSSEF HAMMOUD, a/k/a Ali
Abousaleh, a/k/a Ali Albousaleh, Defendant - Appellant, CENTER FOR
CONSTITUTIONAL RIGHTS; NATIONAL COALITION TO PROTECT POLITICAL FREEDOM;
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; NATIONAL LAWYERS GUILD, Amici
Supporting Appellant. No. 03-4253 UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT 381 F.3d 316; 2004
U.S. App. LEXIS 19036; 65 Fed. R. Evid. Serv. (Callaghan) 338 August 2, 2004, Argued September 8, 2004,
Decided SUBSEQUENT HISTORY:
[*1] As Amended September
8, 2004. Reinstated by, in part United States v. Hammoud, 2005 U.S. App. LEXIS
7184 (4th Cir., Apr. 27, 2005) PRIOR HISTORY: Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte. (CR-00-147-MU).
Graham C. Mullen, Chief District Judge. United States v. Hammoud, 378 F.3d 426, 2004 U.S. App. LEXIS 15898
(4th Cir., 2004) COUNSEL:
ARGUED: Stanley Lewis Cohen, New York, New York; James P. McLoughlin,
Jr., MOORE & VAN ALLEN, PLLC, Charlotte, North Carolina, for Appellant. Demetra Lambros, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: James W. Haldin, MOORE & VAN ALLEN, PLLC, Charlotte,
North Carolina, for Appellant. Robert J. Conrad, Jr., United States Attorney, Gretchen C.F.
Shappert, United States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina; John F. DePue, John Douglas Wilson, Martha
Rubio, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. David D. Cole, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.;
Nancy Chang, Shayana Kadidal, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New
York; Lisa Kemler, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
Alexandria, Virginia, for Amici Supporting Appellant. JUDGES: Before WILKINS, Chief Judge, and WIDENER,
WILKINSON, NIEMEYER, WILLIAMS, MICHAEL,
[*2] MOTZ, TRAXLER, KING,
GREGORY, SHEDD, and DUNCAN, Circuit Judges. Chief Judge Wilkins wrote the
opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd,
and Duncan joined and in which Judge Widener joined as to all except Part
VII.C. Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a
concurring opinion. Judge Widener wrote a concurring and dissenting opinion.
Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory
joined. Judge Gregory wrote a dissenting opinion. OPINION BY:
WILKINS OPINION: WILKINS,
Chief Judge: Mohammed Hammoud appeals the sentence imposed following his
convictions of numerous offenses, all of which are connected to his support of
Hizballah, a designated foreign terrorist organization (FTO). Hammoud also
challenges two of his 14 convictions. The appeal was argued before a
three-judge panel, but prior to decision the court voted to hear the case en
banc in order to consider the effect of Blakely v. Washington, [542
U.S. 296,] 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), on the federal
sentencing guidelines. Following argument en banc, the court entered an order affirming
Hammoud’s convictions and sentence. See United States v. Hammoud, 378 F.3d 426, 2004 WL
1730309 (4th Cir. 2004). [*3] We now set forth the reasoning for our
judgment. I. Facts The facts underlying Hammoud’s convictions and sentence
are largely undisputed. We therefore recount them briefly. A. Hizballah Hizballah is an organization founded by Lebanese Shi’a
Muslims in response to the 1982 invasion of Lebanon by Israel. Hizballah
provides various forms of humanitarian aid to Shi’a Muslims in
Lebanon. However, it is also a strong opponent of Western presence in the
Middle East, and it advocates the use of terrorism in support of its agenda.
Hizballah is particularly opposed to the existence of Israel and to the
activities of the American government in the Middle East. Hizballah’s
general secretary is Hassan Nasserallah, and its spiritual leader is Sheikh
Fadlallah. B. Hammoud In 1992, Hammoud, a citizen of Lebanon, attempted to enter the
United States on fraudulent documents. After being detained by the INS, Hammoud
sought asylum. While the asylum application was pending, Hammoud moved to
Charlotte, North Carolina, where his brothers and cousins were living. Hammoud
ultimately obtained permanent resident
[*4] status by marrying a
United States citizen. At some point in the mid-1990s, Hammoud, his wife, one of his
brothers, and his cousins all became involved in a cigarette smuggling
operation. The conspirators purchased large quantities of cigarettes in North
Carolina, smuggled them to Michigan, and sold them without paying Michigan
taxes. This scheme took advantage of the fact that Michigan imposes a tax of $
7.50 per carton of cigarettes, while the North Carolina tax is only 50 [cent].
It is estimated that the conspiracy involved a quantity of cigarettes valued at
roughly $ 7.5 million and that the state of Michigan was deprived of $ 3
million in tax revenues. In 1996, Hammoud began leading weekly prayer services for
Shi’a Muslims in Charlotte. These services were often conducted at
Hammoud’s home. At these meetings, Hammoud—who is acquainted
with both Nasserallah and Fadlallah, as well as Sheikh Abbas Harake, a senior
military commander for Hizballah—urged the attendees to donate money
to Hizballah. Hammoud would then forward the money to Harake. The
Government’s evidence demonstrated that on one occasion, Hammoud
donated $ 3,500 of his own money to Hizballah. Based on these and
[*5] other activities,
Hammoud was charged with various immigration violations, sale of contraband
cigarettes, money laundering, mail fraud, credit card fraud, and racketeering.
Additionally, Hammoud was charged with conspiracy to provide material support
to a designated FTO and with providing material support to a designated FTO,
both in violation of 18 U.S.C.A. § 2339B (West 2000 & Supp. 2004).
The latter § 2339B charge related specifically to Hammoud’s
personal donation of $ 3,500 to Hizballah. At trial, one of the witnesses against Hammoud was Said Harb, who
grew up in the same Lebanese neighborhood as Hammoud. Harb testified regarding
his own involvement in the cigarette smuggling operation and also provided
information regarding the provision of “dual use” equipment
(such as global positioning systems, which can be used for both civilian and
military activities) to Hizballah. The Government alleged that this conduct was
part of the conspiracy to provide material support to Hizballah. Harb testified
that Hammoud had declined to become involved in providing equipment because he
was helping Hizballah in his own way. Harb also testified that when he
traveled [*6] to Lebanon in September 1999, Hammoud
gave him $ 3,500 for Hizballah. C. Conviction and Sentence The jury convicted Hammoud of 14 offenses, only a few of which
were particularly relevant to the calculation of Hammoud’s sentence
under the guidelines: money laundering and conspiracy to commit money
laundering, see 18 U.S.C.A. § 1956(a)(1), (h) (West 2000 & Supp.
2004); transportation of contraband cigarettes, see 18 U.S.C.A. § 2342
(West 2000); and providing material support to a designated FTO, see 18
U.S.C.A. § 2339B. Applying the 2002 Guidelines Manual, the presentencing report
(PSR) recommended that the base offense level correspond to the amount of tax
evaded in the cigarette smuggling operation. See U.S. Sentencing Guidelines
Manual § 2S1.1(a)(1) (2002) (requiring application of “the
offense level for the underlying offense from which the laundered funds were
derived”); id. § 2E4.1(a) (providing that the offense level
for a violation of 18 U.S.C.A. § 2342 is the greater of 9 or
“the offense level from the table in § 2T4.1 (Tax [*7] Table) corresponding to the amount of the tax
evaded”). The PSR concluded that the amount of tax evaded was more
than $ 2.5 million, resulting in a base offense level of 24. See id. § 2T4.1(J).
The PSR recommended several upward adjustments to this base offense level: two
levels for conviction under 18 U.S.C.A. § 1956, see id. §
2S1.1(b)(2)(B); two levels for sophisticated money laundering, see id.
§ 2S1.1(b)(3); four levels for Hammoud’s role as an organizer
or leader of criminal activity that involved five or more participants, see id. § 3B1.1(a);
and two levels for obstruction of justice, see id. § 3C1.1.
Most significantly, the PSR recommended a 12-level enhancement for committing a
terrorist act, see id. § 3A1.4(a). The terrorism enhancement also
required that Hammoud be assigned to Criminal History Category (CHC) VI, see id. § 3A1.4(b);
otherwise, Hammoud had no criminal history points and would have been placed in
CHC I. Ultimately, the PSR recommended assignment of an adjusted offense level
of 46 (to be treated as offense level 43, see id. Chapter 5, Part A,
comment. (n.2)), which required a sentence of life imprisonment [*8] regardless of Hammoud’s CHC. Hammoud filed objections to the PSR, in which he challenged the
factual basis for several of the upward adjustments. Hammoud also objected to
the calculation of his base offense level, asserting that it was
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L.
Ed. 2d 435, 120 S. Ct. 2348 (2000) (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”). Specifically, Hammoud argued that Apprendi
required a jury finding, beyond a reasonable doubt, of the amount of tax loss
involved in the offense. Hammoud also challenged the terrorism enhancement
under Apprendi, maintaining that the enhancement was invalid without a jury
finding that he possessed the requisite mental state. Hammoud made similar
arguments against the enhancements for his leadership role and obstruction of
justice. The district court conducted a sentencing hearing at which it
rejected all of Hammoud’s sentencing challenges. The court therefore
concluded that the guidelines provided for a sentence of life imprisonment.
Because [*9] none of the offenses of conviction
carried a statutory maximum of life imprisonment, the district court imposed
the maximum sentence on each count and ordered all sentences to be served
consecutively. See U.S.S.G. § 5G1.2(d). This resulted in the
imposition of a sentence of 155 years. We begin by addressing Hammoud’s numerous challenges to
his convictions for providing (and conspiring to provide) material support to a
designated FTO. We then consider Hammoud’s claim that Blakely operates
to invalidate his sentence. Finally, we discuss Hammoud’s other
challenges to his sentence. II. Constitutionality of 18 U.S.C.A. § 2339B Section 2339B, which was enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214, provides for a maximum penalty of 15 years imprisonment for any person
who “knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so.” 18
U.S.C.A. § 2339B(a)(1). The term “material support”
is defined as “currency or other financial securities, financial
services, [*10] lodging, training, safehouses, false
documentation or identification, communications equipment, facilities, weapons,
lethal substances, explosives, personnel, transportation, and other physical
assets, except medicine or religious materials.” 18 U.S.C.A.
§ 2339A(b) (West 2000). n1 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n1 The definition of “material support” was
amended in 2001. See 18 U.S.C.A. § 2339A(b) (West Supp. 2004). We rely
on the definition in effect at the time of the offenses. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Hammoud maintains that § 2339B is unconstitutional in a
number of respects. n2 Because Hammoud failed to bring these challenges before
the district court, our review is for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725,
731-32, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993). To establish plain error,
Hammoud must show that an error occurred, that the error was plain, and that
the error affected his substantial rights. See Olano, 507 U.S. at
732. [*11] Even if Hammoud makes this three-part
showing, correction of the error remains within our discretion, which we
“should not exercise … unless the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (alteration &
internal quotation marks omitted). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n2 Hammoud’s challenges to the constitutionality of
§ 2339B are supported by an amicus brief filed by a coalition of civil
rights groups. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - A. Freedom of Association Hammoud first contends that § 2339B impermissibly
restricts the First Amendment right of association. See U.S. Const. amend. I
(“Congress shall make no law … abridging … the right
of the people peaceably to assemble ….”). Hammoud concedes
(at least for purposes of this argument) that Hizballah engages in terrorist
activity. But, he also notes the undisputed fact that Hizballah provides
humanitarian aid to citizens of Lebanon. Hammoud argues that because Hizballah
engages in both legal and illegal activities, he can be found criminally
liable [*12] for providing material support to
Hizballah only if he had a specific intent to further the
organization’s illegal aims. Because § 2339B lacks such a
specific intent requirement, Hammoud argues that it unconstitutionally
restricts the freedom of association. Cf. United States v. Al-Arian, 329 F. Supp. 2d
1294, 2004 U.S. Dist. LEXIS 15597, 2004 WL 1769226, at *4-*5, *7-*8 (M.D. Fla.
2004) (construing § 2339B as requiring proof of specific intent to
further illegal activity because less stringent interpretation would raise
constitutional questions regarding freedom of association and “due
process requirements of personal guilt”). It is well established that “the First Amendment
… restricts the ability of the State to impose liability on an
individual solely because of his association with another.” NAACP
v. Claiborne Hardware Co., 458
U.S. 886, 918-19, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982); see Scales
v. United States, 367 U.S. 203,
229, 6 L. Ed. 2d 782, 81 S. Ct. 1469 (1961) (noting that a “blanket
prohibition of association with a group having both legal and illegal aims
… [would pose] a real danger that legitimate political expression or
association would be impaired”). Therefore, it is a violation [*13] of the First Amendment to punish an individual for mere
membership in an organization that has legal and illegal goals. Any statute
prohibiting association with such an organization must require a showing that
the defendant specifically intended to further the organization’s
unlawful goals. See Elfbrandt v. Russell, 384 U.S. 11, 15-16, 16 L.
Ed. 2d 321, 86 S. Ct. 1238 (1966). Hammoud maintains that because §
2339B does not contain such a specific intent requirement, his conviction
violates the First Amendment. n3 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n3 Hammoud relies in part on cases holding that a donation to a
political advocacy group is a proxy for speech. See, e.g., Buckley v. Valeo, 424 U.S. 1, 16-17, 46 L. Ed.
2d 659, 96 S. Ct. 612 (1976) (per curiam). Hizballah is not a political advocacy
group, however. Therefore, while providing monetary support to Hizballah may
have an expressive component, it is not the equivalent of pure political
speech. See Humanitarian Law Project v. Reno, 205 F.3d 1130,
1134-35 (9th Cir. 2000) (rejecting argument that material support prohibition
is subject to strict scrutiny review under Buckley and similar cases). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*14] Hammoud’s argument fails because § 2339B does
not prohibit mere association; it prohibits the conduct of providing material
support to a designated FTO. Therefore, cases regarding mere association with
an organization do not control. Rather, the governing standard is found in United
States v. O’Brien, 391
U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), which applies when a
facially neutral statute restricts some expressive conduct. Such a statute is
valid if it is within the constitutional power of
the Government; if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest. Id. at 377. Section 2339B satisfies all four prongs of the O’Brien
test. First, § 2339B is clearly within the constitutional power of the
government, in view of the government’s authority to regulate
interactions between citizens and foreign entities. See Regan v. Wald, 468 U.S. 222, 244, 82 L.
Ed. 2d 171, 104 S. Ct. 3026 (1984) (holding that [*15]
restrictions on travel to Cuba do not violate the Due Process Clause).
Second, there can be no question that the government has a substantial interest
in curbing the spread of international terrorism. See Humanitarian Law
Project v. Reno, 205 F.3d 1130, 1135 (9th Cir. 2000). Third, the Government’s
interest in curbing terrorism is unrelated to the suppression of free
expression. Hammoud is free to advocate in favor of Hizballah or its political
objectives—§ 2339B does not target such advocacy. Fourth and finally, the incidental effect on expression caused by
§ 2339B is no greater than necessary. In enacting § 2339B and
its sister statute, 18 U.S.C.A. § 2339A, Congress explicitly found
that “foreign organizations that engage in terrorist activity are so
tainted by their criminal conduct that any contribution to such an organization
facilitates that conduct.” AEDPA § 301(a)(7). As the Ninth
Circuit reasoned, it follows that all material support given to
[foreign terrorist] organizations aids their unlawful goals. Indeed, …
terrorist organizations do not maintain open books. Therefore, when someone
makes a donation to them, there
[*16] is no way to tell how
the donation is used. Further, … even contributions earmarked for
peaceful purposes can be used to give aid to the families of those killed while
carrying out terrorist acts, thus making the decision to engage in terrorism
more attractive. More fundamentally, money is fungible; giving support intended
to aid an organization’s peaceful activities frees up resources that
can be used for terrorist acts Humanitarian Law Project, 205 F.3d at 1136 (footnote omitted). In
light of this reasoning, the prohibition on material support is adequately
tailored to the interest served and does not suppress more speech than is
necessary to further the Government’s legitimate goal. We therefore
conclude that § 2339B does not infringe on the constitutionally
protected right of free association. B. Overbreadth Hammoud next argues that § 2339B is overbroad. A statute
is overbroad only if it “punishes a substantial amount of protected
free speech, judged in relation to the statute’s plainly legitimate
sweep.” Virginia v. Hicks, 539 U.S. 113, 118-19, 156
L. Ed. 2d 148, 123 S. Ct. 2191 (2003) (internal quotation marks omitted). The
overbreadth must [*17] be substantial “not only in an
absolute sense, but also relative to the scope of the law’s plainly
legitimate applications.” Id. at 120. It is also worth noting that when,
as here, a statute is addressed to conduct rather than speech, an overbreadth
challenge is less likely to succeed. See id. at 124
(“Rarely, if ever, will an overbreadth challenge succeed against a law
or regulation that is not specifically addressed to speech or to conduct
necessarily associated with speech (such as picketing or
demonstrating).”). Hammoud argues that § 2339B is overbroad because (1) it
prohibits mere association with an FTO, and (2) it prohibits such plainly
legitimate activities as teaching members of an FTO how to apply for grants to
further the organization’s humanitarian aims. As discussed above,
§ 2339B does not prohibit mere association with an FTO and therefore
is not overbroad on that basis. Regarding Hammoud’s second overbreadth
argument, it may be true that the material support prohibition of §
2339B encompasses some forms of expression that are entitled to First Amendment
protection. n4 Cf. Humanitarian Law Project, 205 F.3d at
1138 [*18] (holding that
“training” prong of material support definition is vague
because it covers such forms of protected expression as “instructing
members of a designated group on how to petition the United Nations to give aid
to their group”). Hammoud has utterly failed to demonstrate, however,
that any overbreadth is substantial in relation to the legitimate reach of
§ 2339B. See Hicks, 539 U.S. at 122 (“The overbreadth
claimant bears the burden of demonstrating, from the text of the law and from
actual fact, that substantial overbreadth exists.” (alteration &
internal quotation marks omitted)). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n4 A defendant who is prosecuted because his protected speech is
incidentally covered by a broader ban on unprotected activity may bring an
as-applied challenge. Hammoud is not such a defendant for the reasons
previously articulated. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - C. Vagueness Hammoud next argues that the term “material
support” is unconstitutionally vague. “The void-for-vagueness
doctrine requires that penal statutes define crimes [*19] so that
ordinary people can understand the conduct prohibited and so that arbitrary and
discriminatory enforcement is not encouraged.” United States v.
McLamb,
985 F.2d 1284, 1291 (4th Cir. 1993). In evaluating whether a statute is vague,
a court must consider both whether it provides notice to the public and whether
it adequately curtails arbitrary enforcement. See Kolender v. Lawson, 461 U.S. 352, 357-58, 75
L. Ed. 2d 903, 103 S. Ct. 1855 (1983). Section 2339B easily satisfies this standard. As noted above, the
term “material support” is specifically defined as a number
of enumerated actions. Hammoud relies on Humanitarian Law Project, in which the
Ninth Circuit ruled that two components of the material support
definition—“personnel” and
“training”—were vague. See Humanitarian Law
Project,
205 F.3d at 1137-38. The possible vagueness of these prongs of the material
support definition does not affect Hammoud’s conviction, however,
because he was specifically charged with providing material support in the form
of currency. See United States v. Rahman, 189 F.3d 88, 116 (2d Cir. 1999) (per
curiam) (rejecting vagueness challenge
[*20] because allegedly
vague term was not relevant to Appellant’s conviction). There is
nothing at all vague about the term “currency.” D. Designation of an FTO Hammoud’s final challenge to the constitutionality of
§ 2339B concerns his inability to challenge the designation of
Hizballah as an FTO. Section 2339B(g)(6) defines “terrorist
organization” as “an organization designated [by the
Secretary of State] as a terrorist organization under [8 U.S.C.A. §
1189 (West 1999 & Supp. 2004)].” Section 1189(a)(8) explicitly
prohibits a defendant in a criminal action from challenging a designation.
Hammoud argues that his inability to challenge the designation of Hizballah as
an FTO is a violation of the Constitution. Hammoud primarily argues that § 1189(a)(8) deprives him
of his constitutional right to a jury determination of guilt on every element
of the charged offense. n5 See United States v. Gaudin, 515 U.S. 506, 509-10, 132
L. Ed. 2d 444, 115 S. Ct. 2310 (1995) (holding that the Fifth and Sixth
Amendments “require criminal convictions to rest upon a jury
determination that the defendant is guilty of every element of the crime with
which he is charged, beyond
[*21] a reasonable
doubt”). This right has not been violated, however. “In
determining what facts must be proved beyond a reasonable doubt the …
legislature’s definition of the elements of the offense is usually
dispositive ….” McMillan v. Pennsylvania, 477 U.S. 79, 85, 91 L. Ed.
2d 67, 106 S. Ct. 2411 (1986). Here, Congress has provided that the fact of an
organization’s designation as an FTO is an element of §
2339B, but the validity of the designation is not. Therefore,
Hammoud’s inability to challenge the designation is not a violation of
his constitutional rights. See United States v. Bozarov, 974 F.2d 1037, 1045-46
(9th Cir. 1992) (holding that defendant’s inability to challenge
administrative classification did not violate due process because the validity
of the classification was not an element of the offense). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n5 On a related note, Hammoud argues that the designation of an
organization as an FTO is a “fact” that increases the
available penalty, and therefore must be found by the jury under Apprendi v.
New Jersey, 530 U.S. 466,
147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Apprendi does not apply here,
however, because the designation does not allow an increased penalty beyond
that authorized by the elements of the offense (which, as noted in the text, do
not include the validity of the FTO designation). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*22] Hammoud next argues that § 1189(a) violates the
nondelegation doctrine because the designation of an organization as an FTO is
not subject to judicial review. In the first place, it is not clear whether the
nondelegation doctrine requires any form of judicial review. Compare Bozarov, 974 F.2d at 1041-45
(rejecting claim that a congressional delegation of authority was
unconstitutional because the agency’s action was not subject to
judicial review), with Touby v. United States, 500 U.S. 160, 168-69, 114
L. Ed. 2d 219, 111 S. Ct. 1752 (1991) (rejecting claim that temporary
regulation violated nondelegation doctrine on basis that permanent regulation
was subject to judicial review and temporary regulation could be challenged in
criminal proceedings). In any event, an FTO designation is subject to judicial
review—the designation may be challenged by the organization itself,
see 8 U.S.C.A. § 1189(b). III. Surveillance Evidence A. FISA Materials At trial, the Government introduced into evidence several recorded
telephone conversations between Hammoud and others. These recordings were obtained
through a wiretap pursuant to the Foreign
[*23] Intelligence
Surveillance Act of 1978 (FISA), 50 U.S.C.A. §§ 1801-1862
(West 2003 & Supp. 2004). Hammoud argues that the wiretap authorization was
not based upon probable cause; that the official certification that the
wiretaps were seeking foreign intelligence information was clearly erroneous;
and that the Government failed to take adequate measures to ensure that the
invasion of Hammoud’s privacy was no greater than necessary. FISA was enacted to create a framework whereby the Executive could
conduct electronic surveillance for foreign intelligence purposes without
violating the rights of citizens. See United States v. Squillacote, 221 F.3d 542, 552
(4th Cir. 2000). FISA created a special court composed of district court judges
appointed by the Chief Justice of the United States; with certain exceptions
not relevant here, a FISA judge must approve in advance all electronic
surveillance of a foreign power or its agents. See 50 U.S.C.A.
§§ 1802, 1804. 1. Probable Cause Before authorizing surveillance, a FISA judge must determine that
there is probable cause to believe that, as is relevant here, “the
target of [*24] the electronic surveillance is
… an agent of a foreign power” and that “each of the
facilities or places at which the electronic surveillance is directed is being
used, or is about to be used, by … an agent of a foreign
power.” 50 U.S.C.A. § 1805(a)(3). A “foreign
power” includes “a group engaged in international terrorism
or activities in preparation therefor.” Id. §
1801(a)(4). An “agent of a foreign power” is “any
person who … knowingly engages in sabotage or international terrorism,
or activities that are in preparation therefor, for or on behalf of a foreign
power.” Id. § 1801(b)(2)(C). Hammoud concedes that Hizballah
is a foreign power under FISA, but he argues that the Government did not have
probable cause to believe that he was an agent of Hizballah. “Probable cause is a fluid concept—turning on
the assessment of probabilities in particular factual contexts—not
readily, or even usefully, reduced to a neat set of legal rules.” Illinois
v. Gates, 462 U.S. 213,
232, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). In evaluating whether probable
cause exists, it is the task of the issuing judge “to make a
practical, common-sense decision whether,
[*25] given all the
circumstances set forth in the affidavit …, there is a fair
probability” that the search will be fruitful. Id. at 238; see Mason
v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995) (“Probable cause means
more than bare suspicion but less than absolute certainty that a search will be
fruitful.”). Hammoud’s motion to suppress the FISA evidence was
referred to a magistrate judge, who reviewed the FISA applications and
supporting materials in camera and concluded that there was probable cause to
believe that Hammoud was an agent of a foreign power. See 50 U.S.C.A.
§ 1806(f). The magistrate judge therefore recommended denial of the
motion to suppress. The district court adopted this recommendation after
considering Hammoud’s objections to the report and recommendation,
independently reviewing the materials, and conducting a hearing. Having conducted our own de novo review of the materials, see
Squillacote, 221 F.3d at 554, we reach the same conclusion as the magistrate
judge and the district court. Further, upon review of the materials we are
satisfied that the probable cause finding was not based [*26] “solely upon … activities protected by the
first amendment to the Constitution of the United States.” 50 U.S.C.A.
§ 1805(a)(3)(A). We will not elaborate on the contents of the
materials in light of the Attorney General’s assessment that
disclosure of the information contained in the application and supporting
documents would endanger national security. 2. Certification An application for a FISA warrant must include a certification by
an executive branch official stating, inter alia, that the information sought
is foreign intelligence information and that the purpose of the surveillance is
to obtain such information. n6 See id. § 1804(a)(7). When the target of
surveillance is a United States person, the FISA judge must find that the
certification is not clearly erroneous before issuing a warrant. See id. §
1805(a)(5). “A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L.
Ed. 746, 68 S. Ct. 525 (1948). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n6 When the Government applied for a FISA warrant to conduct
electronic surveillance of Hammoud, FISA required a certification that the
acquisition of foreign intelligence information was “the
purpose” of the surveillance. In 2001, Congress amended FISA to
require a certification that the acquisition of foreign intelligence
information is “a significant purpose” of the surveillance.
See Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No.
107-56, § 218, 115 Stat. 272, 291 (2001). For purposes of this appeal,
we will assume that the higher standard imposed by the pre-USA PATRIOT Act
version of FISA controls. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*27] Hammoud asserts that the certification was clearly erroneous for
two reasons. First, he maintains that the Government failed to demonstrate that
the information it sought to obtain through the proposed electronic
surveillance was foreign intelligence information. Second, he claims that
obtaining foreign intelligence information was not the “primary
purpose” of the surveillance; rather, the purpose of the surveillance
was to obtain evidence for use in the criminal investigation. Cf. United
States v. Truong Dinh Hung, 629 F.2d 908, 915-16 (4th Cir. 1980) (suppressing fruits
of electronic surveillance after date that investigation of defendant became
“primarily a criminal investigation”). a. Foreign Intelligence Information FISA defines “foreign intelligence information”
in pertinent part as information that relates to, and if concerning
a United States person is necessary to, the ability of the United States to
protect against— A) actual or potential attack or other grave
hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a
foreign power or an agent of a foreign power; or (C) clandestine [*28]
intelligence activities by … an agent of a foreign power
… 50 U.S.C.A. § 1801(e)(1). We reject Hammoud’s
contention that there is no evidence to support the Government’s
certification regarding the character of the information sought to be obtained
through electronic surveillance of Hammoud. The materials submitted in connection
with the FISA application warrant a conclusion that the certification was not
clearly erroneous. b. Primary Purpose The Government disputes that FISA requires the collection of
foreign intelligence information to be the “primary purpose”
of electronic surveillance. Among other things, it notes that Truong, in which
this court first articulated the primary purpose test, was a pre-FISA decision.
See generally In re Sealed Case, 310 F.3d 717, 722-27 (Foreign Int. Surv. Ct.
Rev. 2002) (per curiam) (tracing history of primary purpose requirement and
concluding that requirement is not supported by text or legislative history of
FISA). However, even if the primary purpose test applies, it is satisfied here.
The information in the affidavit supports a conclusion that the FBI was
primarily interested [*29] in obtaining foreign intelligence
information. n7 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n7 Hammoud suggests that the FBI should have abandoned the
surveillance when it became clear that no foreign intelligence information
would be obtained. Hammoud provides no argument supporting this claim, however,
and we therefore do not consider it. See Fed. R. App. P. 28(a)(9)(A) (providing
that the appellant’s brief must contain “appellant’s
contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies”); 11126
Baltimore Blvd., Inc. v. Prince George’s County, 58 F.3d 988, 993 n.7
(4th Cir. 1995) (en banc) (declining to consider arguments for failure to
comply with Rule 28). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - 3. Minimization In his last challenge to the FISA evidence, Hammoud argues that
the Government failed to minimize the surveillance of him, as FISA requires.
See 50 U.S.C.A. § 1805(a)(4); id. § 1801(h)(1) (defining
“minimization procedures” [*30] as
“specific procedures … that are reasonably designed …
to minimize the acquisition and retention, and prohibit the dissemination, of
nonpublicly available information concerning unconsenting United States
persons”). Hammoud’s entire argument on this point consists
of two assertions: that “the surveillance records contained no foreign
intelligence information” and that the records “contain many
conversations about personal matters unrelated to any crime.” Br. for
Appellant Mohamad Y. Hammoud at 51. We take Hammoud’s argument to be
that the minimization procedures must have been inadequate because many
personal conversations were recorded and obtained during the course of the
surveillance. In enacting FISA, Congress recognized that “no electronic
surveillance can be so conducted that innocent conversations can be totally
eliminated.” S. Rep. No. 95-701, at 39 (1978) (internal quotation
marks omitted), reprinted in 1978 U.S.C.C.A.N. 3973, 4008. The minimization
requirement obligates the Government to make a good faith effort to minimize
the acquisition and retention of irrelevant information. See id. at 39-40. However,
it is not always immediately clear into which category [*31] a particular conversation falls. A conversation that seems
innocuous on one day may later turn out to be of great significance,
particularly if the individuals involved are talking in code. Cf. United
States v. Salameh, 152 F.3d 88,
154 (2d Cir. 1998) (per curiam) (noting that two conspirators involved in the
1993 bombing of the World Trade Center in New York referred to the plot as the
“study” and to relevant materials as “university
papers”). In view of these considerations, the mere fact that innocent
conversations were recorded, without more, does not establish that the
government failed to appropriately minimize surveillance. B. Canadian Intelligence Summaries Between February 1996 and September 2000, the Canadian Security
Intelligence Service (CSIS) conducted electronic surveillance of a
coconspirator in Canada. A number of these recordings were destroyed pursuant
to routine procedures. However, summaries and analysis of the conversations
were prepared by a CSIS communications analyst shortly after each conversation
was recorded. At trial, the Government sought to introduce the factual portions
of some of these summaries (the analysis was redacted from [*32] the summaries before submission to the jury). During pretrial proceedings, the district court ruled that the
CSIS summaries were admissible as recorded recollections, see Fed. R. Evid.
803(5), and as public records, see id. Rule 803(8). At trial, Hammoud
stipulated to the admissibility of the summaries. See J.A. 2827 (“Your
Honor, with respect to these exhibits, there’s a stipulation among the
parties that the Canadian Security Intelligence Service’s factual
summaries are admissible pursuant to Federal Rule of Evidence 803(5), past
recollection recorded exception to hearsay rules and that they are authentic and
accurate.”). Hammoud now maintains that admission of the summaries was error.
However, all of his arguments are negated by his stipulation; thus, Hammoud
waived any objection. See United States v. Aptt, 354 F.3d 1269, 1280
(10th Cir. 2004) (explaining that “[a] defendant is free to waive
objections to evidence by stipulation” and that “admission of
a stipulated exhibit is not error …, even if it would not be
admissible in the absence of such a stipulation”). IV. Expert [*33] Testimony During trial, the district court allowed Matthew Levitt to testify
as an expert regarding terrorist organizations and Hizballah. Hammoud argues
that the admission of Levitt’s testimony was improper on two grounds:
first, that the testimony should have been excluded in light of the
Government’s failure to comply with a discovery order; and second,
that Levitt’s testimony failed the standard for the admissibility set
forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed.
2d 469, 113 S. Ct. 2786 (1993). Hammoud also argues that the district court
abused its discretion in refusing to allow him to cross-examine Levitt
regarding classified matters. We reject all three of these claims. A. Rule 16 Violation The district court ordered the Government to produce all discovery
by October 31, 2001; the order stated that “discovery produced after
that date will not be admitted at trial absent a showing of extreme
need.” J.A. 347. On November 1, the Government filed a notice of
compliance which included a section entitled “Discovery material not
yet available to defendants.” Id. at 367. In this section, the
Government informed the court that it was
[*34] still seeking the aid
of an expert on Hizballah. The Government also acknowledged that it would have
to obtain leave of the court prior to offering such expert testimony at trial.
In response to a motion filed by Hammoud’s codefendant (Chawki
Hammoud, who is Hammoud’s brother), the Government informed the court
on December 11 that it still had not obtained an expert on Hizballah; the
Government stated that “when it has [found an expert], notice will be
given and litigation, including the timeliness of disclosure, can
commence.” Id. at 410. In the meantime, the Government requested that
the motions deadline be extended to account for ongoing discovery. On April 10, 2002, the Government filed a notice of its intent to
call Levitt, see Fed. R. Crim. P. 16(a)(1)(G), n8 and requested leave of the
court to admit Levitt’s testimony. The Government noted that Levitt
expected to complete a summary of his testimony by April 26, at which point it
would be submitted to the defense. The Government filed the notice and summary
on May 3. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n8 When the Government filed its notice, the relevant provision
was Rule 16(a)(1)(E). The rule was amended in 2002, and subsection (a)(1)(E)
was relettered (a)(1)(G). There was no change in the text. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*35] At a hearing concerning the timeliness of the disclosure,
Hammoud’s attorney argued that he did not have adequate time to
prepare to cross-examine Levitt. However, defense counsel also told the court
that neither he nor Hammoud wanted a continuance. Noting that the Government
had kept the court and defense counsel apprized of its search for an expert,
the district court declined to sanction the Government by excluding
Levitt’s testimony. Rule 16 grants the district court substantial discretion in
dealing with a violation of a discovery order. n9 See Fed. R. Crim. P. 16(d)(2)
(providing that a failure to comply may be remedied by an order directing
compliance, a continuance, exclusion of the evidence, or “any other
order that is just under the circumstances”); see also United
States v. Lopez, 44 V.I. 311, 271 F.3d 472, 483 (3d Cir. 2001) (“On its
face, the Rule does not require a district court to do anything—Rule
16 merely states that the court ‘may’ take [one of the
enumerated] actions.”). In determining what sanction, if any, to
impose for a discovery violation, the district court must weigh the reasons [*36] for the government’s delay and whether it acted
intentionally or in bad faith; the degree of prejudice, if any, suffered by the
defendant; and whether any less severe sanction will remedy the prejudice and the
wrongdoing of the government. United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997).
The court must impose the least severe sanction that will “adequately
punish the government and secure future compliance.” Id. A continuance is the
preferred sanction. See United States v. Golyansky, 291 F.3d 1245, 1249
(10th Cir. 2002) (“It would be a rare case where, absent bad faith, a
district court should exclude evidence rather than continue the
proceedings.”). The sanction decision is reviewed for abuse of
discretion. See Hastings, 126 F.3d at 316. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n9 The Government contends that it complied fully with Rule 16
because it kept Hammoud and the district court informed of its continuing
efforts to secure an expert on Hizballah. This claim is not persuasive,
however. The district court set a clear deadline for discovery, and there is no
dispute that the deadline passed before the Government identified Levitt. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*37] Here, the district court acknowledged the Government’s
discovery violation but elected not to impose a sanction after defense counsel
declined to accept a continuance. Its refusal to exclude Levitt’s
testimony was not an abuse of discretion. The Government made clear, well
before the discovery deadline, that it was seeking an expert to testify that
Hammoud was the leader of a Hizballah cell. Additionally, the Government
detailed its difficulties in obtaining such an expert and promptly identified
Levitt when he had been retained. Under these circumstances, the district court
did not abuse its discretion in refusing to exclude Levitt’s
testimony. B. Daubert Federal Rule of Evidence 702 provides that “if
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.” The
Supreme Court has held that Rule 702 requires the district court to perform a
gatekeeping function to “ensure that any and all scientific testimony [*38] or evidence admitted is not only relevant, but
reliable.” Daubert, 509 U.S. at 589. When, as here, the proffered expert testimony is not scientific in
nature, the district court must still perform the gatekeeping function. See Kumho
Tire Co. v. Carmichael, 526
U.S. 137, 147-49, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999). In determining
whether proffered expert testimony is reliable, the district court has broad
discretion to consider whatever factors bearing on validity that the court
finds to be useful; the particular factors will depend upon the unique
circumstances of the expert testimony involved. See id. at 152-53.
“The court, however, should be conscious of two guiding, and sometimes
competing, principles”: (1) “that Rule 702 was intended to
liberalize the introduction of relevant expert evidence”; and (2)
“that due to the difficulty of evaluating their testimony, expert
witnesses have the potential to be both powerful and quite misleading.”
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (internal
quotation marks omitted). The district court conducted a Daubert hearing, during which
Levitt testified that [*39] his expertise regarding Hizballah
derived from his previous experience with the FBI and his current employment
with a think tank, at which he specialized in Middle Eastern terrorist groups.
Levitt testified that as part of his duties, he spent “a lot of [his]
time … on Hizballah.” J.A. 2357. Levitt described his general
methodology as follows: Well, we’re talking about a social
science here. This is not scientific research. Basic academic intellectual
research combined with the techniques I was taught in … various
courses I took as an analyst for the government both taught that the best way
to go about making sense of something in the social sciences is to collect as
much information as possible and to balance each new incoming piece of
information against the body of information that you’ve built to that
point. … … So it’s a constant vetting
process. And the more rigorous you are, the better your information will be. J.A. 2344-45. Levitt further testified that his work was subject
to “tremendous peer review,” id. at 2345, and that
his regular practice was to discuss his findings and conclusions with others to
ensure their soundness. Levitt stated
[*40] that he followed this
process in reaching his opinion in this case. In view of this testimony, the district court did not abuse its
discretion in qualifying Levitt as an expert. Levitt identified his methodology
as one generally employed in the social sciences, and Hammoud did not challenge
this testimony. Additionally, Levitt testified that he actually applied this
methodology in reaching his conclusions regarding this case. Hammoud also argues that Levitt’s testimony should have
been excluded on the grounds that it was not helpful to the jury. Again, the
district court did not abuse its discretion. Levitt testified regarding the
structure of Hizballah and identified its leaders. Levitt also explained the
significance of Hammoud’s contact with those leaders (most notably
Sheikh Fadlallah, the spiritual leader of Hizballah). And, Levitt discussed the
nature of Hizballah’s funding activities with specific reference to
Hammoud’s activities. This testimony was critical in helping the jury
understand the issues before it. C. Classified Information During the Daubert hearing and at trial, the district court
prohibited defense counsel from questioning Levitt regarding classified [*41] matters relating to Levitt’s employment with the FBI.
Hammoud maintains that this restriction violated the Classified Information
Procedures Act (CIPA), 18 U.S.C.A. App. 3 §§ 1-16 (West 2000
& Supp. 2004), and the Confrontation Clause of the Sixth Amendment. We
reject both of these contentions. 1. CIPA CIPA was enacted in 1980 to combat the problem of
“graymail,” an attempt by a defendant to derail a criminal
trial by threatening to disclose classified information. See S. Rep. No.
96-823, at 2 (1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4295; see also id. at 3 (noting that
problem of graymail is not “limited to instances of unscrupulous or
questionable conduct by defendants since wholly proper defense attempts to
obtain or disclose classified information may present the government with the
same ‘disclose or dismiss’ dilemma” (internal
quotation marks omitted)), reprinted in 1980 U.S.C.C.A.N. at 4296-97. CIPA
requires a criminal defendant who “reasonably expects to disclose or
to cause the disclosure of classified information in any manner in connection
with any trial or pretrial proceeding” to notify the district court
and the Government “within
[*42] the time specified by
the court or, where no time is specified, within thirty days prior to trial.”
18 U.S.C.A. App. 3 § 5(a). The Government may then request a hearing,
at which the district court must determine whether the classified information
in question is relevant and admissible. See id. § 6(a). During the course of the Daubert hearing regarding
Levitt’s expert testimony, the district court refused to allow Hammoud
to cross-examine Levitt regarding classified matters relating to
Levitt’s former employment with the FBI. Hammoud argues that this
information was relevant and material to his cross-examination of Levitt and
that its non-disclosure violated CIPA; he further maintains that the proper
remedy for the non-disclosure is exclusion of Levitt’s testimony. We
disagree. The triggering event for the imposition of sanctions under CIPA is
the Government’s refusal to comply with an order of the district court
directing the disclosure of classified information. See 18 U.S.C.A. App. 3
§ 6(e). Such a refusal must necessarily be preceded by a district
court determination that the classified information is relevant and admissible. [*43] See id.; United States v. Smith, 780 F.2d 1102, 1105
(4th Cir. 1985) (en banc). Here, however, the district court determined that
the classified information related to Levitt’s work at the FBI was not
relevant because he did not rely on that information in forming his opinion.
Because the district court never ordered the disclosure of classified
information (and properly so, as we discuss below), the Government never had
occasion to refuse to produce the information. We therefore conclude that CIPA
is not implicated. n10 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n10 The timeliness of the CIPA claim also provides a potential
basis for rejection of Hammoud’s claim. The CIPA issue was first
raised by Chawki Hammoud in a motion filed during the course of trial (this
motion was joined by Hammoud). Chawki Hammoud acknowledged that his motion was
untimely under CIPA § 5(a) but asserted that the untimeliness resulted
from the Government’s failure to comply with its discovery obligations
and therefore should be excused. In view of our conclusion that CIPA is not
implicated here for other reasons, we do not address the timeliness of the CIPA
claim. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*44] 2. Confrontation Clause Hammoud next maintains that the district court violated his Sixth
Amendment right to confront the witnesses against him when the court refused to
allow him to cross-examine Levitt regarding classified matters. We conclude
that this claim fails because Levitt did not rely on any classified information
in forming his opinion regarding Hammoud’s membership in Hizballah. The Constitution guarantees the right of a criminal defendant
“to be confronted with the witnesses against him.” U.S. Const.
amend. VI. “The main and essential purpose of confrontation is to
secure for the [defendant] the opportunity of cross-examination.” Davis
v. Alaska, 415 U.S. 308,
315-16, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) (emphasis & internal
quotation marks omitted). Indeed, “cross examination is the principal
means by which the believability of a witness and the truth of his testimony
are tested.” Id. at 316. Nevertheless, the district court retains
“wide latitude … to impose reasonable limits on …
cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that [*45] is repetitive or only marginally
relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 89 L.
Ed. 2d 674, 106 S. Ct. 1431 (1986). We review such limitations for abuse of
discretion. See United States v. Turner, 198 F.3d 425, 429 (4th Cir. 1999). In support of this claim, Hammoud relies on United States v.
Baptista-Rodriguez, 17 F.3d 1354 (11th Cir. 1994), in which the Eleventh Circuit
ruled that the defendant (Diaz) suffered a Confrontation Clause violation when
the district court prohibited him from cross-examining a witness regarding the
existence and contents of a classified document. See id. at 1366-67. The
document in question related to Diaz’s defense that he was working
with the FBI at the time of the drug transaction with which he was charged. See
id.
at 1366-68. The Government, in contrast, relies on two First Circuit cases, United
States v. Angiulo (Angiulo I), 847 F.2d 956 (1st Cir. 1988), and United
States v. Angiulo (Angiulo II), 897 F.2d 1169 (1st Cir. 1990), both of which
involved expert testimony regarding the defendants’ relationship to La
Cosa Nostra. See Angiulo II, 897 F.2d at 1187; [*46] Angiulo
I,
847 F.2d at 973. The district court prohibited the defendants in each case from
questioning the expert about the identity of the informants whose information
formed much of the basis for the expert’s knowledge of La Cosa Nostra.
The First Circuit affirmed, reasoning: The experts acknowledged that information
gleaned from informants over the course of their FBI careers was part of the
vast mix of material that contributed to their background expertise on La Cosa
Nostra. This expertise, in turn, enabled them to listen to the tapes and form
opinions on defendants’ criminal activities. The fact that informant
information furnished some part of the experts’ background knowledge
does not implicate the sixth amendment. Regardless of the information that
contributed to their background expertise, the experts’ testimony
regarding the particular charges against these defendants was based solely on
an analysis of the tape recordings [that were played at trial]. Angiulo II, 897 F.2d at 1188; see Angiulo I, 847 F.2d at 974
(employing similar reasoning). We agree with the Government that the situation before us is
more [*47] akin to the Angiulo cases than to
Baptista-Rodriguez. Levitt stated during the Daubert hearing that while
his general knowledge regarding Hizballah derived in part from his classified
work with the FBI, he did not rely on any classified information in forming his
opinion regarding Hammoud’s relationship to Hizballah. Rather, as did
the experts in the Angiulo cases, Levitt based his opinion regarding
Hammoud’s Hizballah membership on unclassified surveillance evidence
obtained by the Government during the course of its investigation. The
classified information therefore was not relevant to the question of
Hammoud’s guilt, and the district court did not abuse its discretion
in refusing to allow cross-examination regarding classified materials. V. Videotapes Hammoud next asserts that the district court abused its discretion
in allowing the Government to play for the jury some of the Hizballah
videotapes found in his apartment. Hammoud claims that the contents of the
tapes were irrelevant and, alternatively, that if the tapes were relevant, they
were unduly prejudicial. See Fed. R. Evid. 403 (“Although relevant,
evidence may [*48] be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice
….”). n11 Hammoud also argues that the manner in which the
Government presented the videotape evidence unfairly prejudiced him. We review
the evidentiary rulings of the district court for abuse of discretion. See United
States v. Leftenant, 341 F.3d 338, 342 (4th Cir. 2003), cert. denied, 540 U.S. 1166,
157 L. Ed. 2d 1215, 124 S. Ct. 1183 (2004). Hammoud’s challenge to the
means of presenting the videotape evidence will succeed only if “the conduct
so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” United States v. Scheetz, 293 F.3d 175, 185
(4th Cir. 2002) (internal quotation marks omitted). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n11 Hammoud also cites Rule 404(b), which prohibits—with
certain exceptions—the admission of prior bad acts that are extrinsic
to the crime charged in order “to prove the character of a person in
order to show action in conformity therewith.” Fed. R. Evid. 404(b);
see United States v. Higgs, 353 F.3d 281, 311 (4th Cir. 2003), petition for
cert. filed, No. 03-10498 (U.S. May 21, 2004). Rule 404(b) is simply not
relevant here. To the extent the “bad act” is the playing of
the videotapes during Thursday night prayer meetings, it was intrinsic to the
charged crime of providing material support to Hizballah. To the extent the
“bad act” was the activities depicted in the videotapes, none
of the tapes depicted actions by Hammoud, and the character of the people
depicted in the tapes was not at issue. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*49] A. Relevance The indictment alleged that as one of the overt acts of the
conspiracy to provide material support to an FTO, Hammoud conducted meetings in
his home during which he spoke about Hizballah operations and played Hizballah
videotapes. At trial, the Government sought to prove that the meetings were not
solely religious meetings, as Hammoud contended, but rather were integral to
the operation of a Hizballah cell in Charlotte. In support of this claim, the
Government played excerpts from some of the videotapes seized from
Hammoud’s home. The segments played by the Government included
speeches by Hizballah leaders praising men who had martyred themselves and
crowds shouting “Death to America” and “Death to
Israel.” J.A. 2225. Another tape depicted a group swearing to become
martyrs “to shake the grounds under our enemies, America and
Israel.” Id. at 2388 (internal quotation marks omitted). Most
significantly, some of the tapes depicted Hizballah military operations and
encouraged donations from those who could not participate directly in Hizballah
operations. We conclude that the district court did not abuse its discretion
in ruling that the excerpts played for the [*50] jury were
relevant. The excerpts played for the jury are probative of Hammoud’s
intent during the prayer meetings—i.e., to solicit donations to
Hizballah—and his knowledge of, and agreement with, the terrorist
objectives of Hizballah. B. Unfair Prejudice Hammoud also argues that even if the tapes were relevant, they
should have been excluded because their probative value was substantially
outweighed by the danger of unfair prejudice. Rule 403 requires exclusion of
evidence “only in those instances where the trial judge believes that
there is a genuine risk that the emotions of the jury will be excited to irrational
behavior, and that this risk is disproportionate to the probative value of the
offered evidence.” United States v. Powers, 59 F.3d 1460, 1467
(4th Cir. 1995) (internal quotation marks omitted). The mere fact that the
evidence will damage the defendant’s case is not enough-the evidence
must be unfairly prejudicial, and the “unfair prejudice must
substantially outweigh the probative value of the evidence.” United
States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998) (internal quotation marks
omitted) (emphasis added). [*51] In advocating for the admissibility of the video excerpts, the
Government relies on United States v. Salameh, 152 F.3d 88 (2d Cir.
1998) (per curiam). In Salameh, the Second Circuit addressed a Rule 403
challenge to the admission of certain materials—including a video of
the bombing of an American embassy and instructions for making
bombs—in the trial of those accused of the 1993 World Trade Center
bombing. See id. at 110. The court concluded that the district court had not
abused its discretion in ruling that the materials were not unfairly
prejudicial, reasoning that even though the items “bristled with
strong anti-American sentiment and advocated violence against targets in the
United States,” the danger of unfair prejudice did not substantially
outweigh the probative value of the evidence. Id. at 111. In arguing that the video excerpts were unfairly prejudicial,
Hammoud relies on United States v. Ham, 998 F.2d 1247 (4th Cir. 1993), and United
States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998). In Ham, this court
reversed a conviction on the basis that evidence of defendants’ [*52] homosexuality and of rampant child molestation in a
religious community headed by the defendants was unduly prejudicial. See Ham, 998 F.2d at 1252-54.
We concluded that the evidence was highly prejudicial and that its probative
impact was limited because, although relevant to prove motive for the charged
murder, it was neither “direct” nor
“essential” proof of motive. Id. at 1253. In Merino-Balderrama, the Ninth Circuit reversed a conviction for
possession of child pornography on the basis that the district court abused its
discretion in allowing the Government to play for the jury excerpts of films
containing child pornography that had been found in the defendant’s
possession. See Merino-Balderrama, 146 F.3d at 760. The defendant had offered
to stipulate that the tapes contained child pornography. The court held that in
view of the proffered stipulation, the Government would only be required prove
scienter, i.e., that the defendant knew the films contained child pornography.
And, the court concluded that in light of the covers of the
films—photographs making clear that the film was child
pornography—the probative value
[*53] of the contents of
the films was outweighed by their prejudicial impact. See id. at 762-63. We conclude that the district court did not abuse its discretion
in allowing the Government to play portions of the tapes for the jury. As noted
above, the Government was required to demonstrate that Hammoud knew of
Hizballah’s unlawful activities, and the contents of the videos were probative
evidence of Hammoud’s knowledge. The tapes also provided evidence of
Hammoud’s motive in raising funds for Hizballah and tended to
contradict Hammoud’s claim that he sympathized only with the
humanitarian goals of the organization. See Salameh, 152 F.3d at 111
(noting that even though motive is not an element of any offense,
“evidence offered to prove motive is commonly admitted”).
This case is thus unlike Ham, in which the proffered evidence was neither
directly relevant to motive nor highly probative of motive. And, unlike in
Merino-Balderrama, there was no less prejudicial alternative for the Government
in proving Hammoud’s knowledge of Hizballah’s activities. n12 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n12 Hammoud notes that he offered to stipulate that the tapes were
found in his home and that they were produced by Hizballah. Even if such a
stipulation had been accepted, however, it still would not relieve the
Government of the burden of demonstrating that Hammoud knew that Hizballah
engaged in terrorist activity. See United States v. Hill, 249 F.3d 707, 712
(8th Cir. 2001) (noting that the defendant’s offer to stipulate to the
element of intent did not alleviate the Government’s obligation to
prove intent). Hammoud also suggests that the district court was required to
accept his stipulation under United States v. Old Chief, 519 U.S. 172, 174, 136 L.
Ed. 2d 574, 117 S. Ct. 644 (1997), in which the Supreme Court held that in a
prosecution for being a felon in possession of a firearm, a defendant must be
allowed to stipulate to his status as a felon. Old Chief does not mandate the
acceptance of all offered stipulations, however. The Court noted that its
ruling was an exception to the general rule that “the prosecution is
entitled to prove its case by evidence of its own choice, or, more exactly,
that a criminal defendant may not stipulate or admit his way out of the full
evidentiary force of the case as the Government chooses to present
it.” Id. at 186-87. We have limited Old Chief to its facts. See Grimmond, 137 F.3d at 833
n.14. In any event, as noted above, the videotapes were admissible to prove
facts beyond the scope of Hammoud’s stipulation. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*54] C. Manner of Presentation Hammoud also challenges the manner in which the Government
presented the videotapes, arguing that the tapes were repeatedly rewound and
replayed in order to heighten their prejudicial impact. The record does not
bear out this claim. The Government played the tapes for the jury while a
linguist translated the statements being made. At several points, the linguist
asked for the tape to be rewound because his translation had fallen behind the
action on the video. The following is a representative episode: Our slogan was, is and will remain to be Death
to Israel. And the crowd repeats the same thing three times. Mr. Nasserallah says, And along The Resistance
path — can you rewind it just a little? It says, Along The Resistance path, our bodies
bleed, our bodies fall to the ground and our heads tumble above our heads
— I’m sorry, our houses tumble above our heads. It says —I’m sorry, can you
rewind just a little bit? Okay. He talks —I missed that part
because of the rewinding, but he talks about The Resistance continues… J.A. 2227. We see nothing improper or
prejudicial in rewinding the videos so that the translator could keep up. [*55] Hammoud further asserts that it was improper for the Government to
use a translator at all—he contends that the Government should have
simply played the tapes and allowed the jury to follow along with a printed
translation. We disagree. It would have been exceedingly difficult, if not
impossible, for a jury to follow along with a written, English translation of a
videotape filmed entirely in Arabic. The district court did not abuse its
discretion in determining that playing the video with simultaneous oral
translation was a more effective and helpful way of presenting the evidence to
the jury. VI. Miscellaneous Challenges to Convictions Hammoud raises several additional challenges to his convictions
that may be addressed more briefly. A. Constructive Amendment Count 71 of the indictment alleged that the Charlotte Hizballah
cell was a racketeering enterprise, one of the purposes of which was the
donation of illegally acquired funds to Hizballah. Count 72 of the indictment
charged Hammoud and others with conspiracy to provide material support to a
designated FTO. Count 72 included allegations regarding Hammoud’s
activities in Charlotte as well as Said Harb’s involvement [*56] in procuring “dual-use” equipment in
Canada. Hammoud argues that the Government (through its presentation of
evidence and closing argument) and the district court (through its instructions
to the jury) constructively amended the indictment by effectively combining
counts 71 and 72 into a single charge. See United States v. Floresca, 38 F.3d 706, 710
(4th Cir. 1994) (en banc) (“A constructive amendment to an indictment
occurs when either the government …, the court …, or both,
broadens the possible bases for conviction beyond those presented by the grand
jury.”). Counts 71 and 72 were clearly separate charges, and the district
court properly instructed the jury as to each. During his closing argument,
Hammoud’s counsel argued that while the indictment charged a single
conspiracy in count 72, the evidence supporting that count actually
demonstrated the existence of two conspiracies—one in Canada,
involving the procurement of equipment, and one in Charlotte. n13 In response to
this claim, the Government argued in rebuttal that the evidence in support of
count 72 established the existence of a single conspiracy. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n13 Counsel then argued that the Government had failed to prove
the existence of a conspiracy in Charlotte. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*57] During deliberations, the jury repeatedly asked questions about
count 72, even after it had reached a verdict on all of the other counts,
including count 71. In particular, the jury asked whether, in order to convict,
it had to conclude that the Canadian activities and the Charlotte activities
were part of the same conspiracy. In response, and apparently without objection
from Hammoud, the district court repeated its instruction regarding single and
multiple conspiracies. Subsequently, the jury asked a question that neither the court nor
the parties understood: “Do we have to find one conspiracy or a
conspiracy out of multiple utilizing only some of the manner and means of
conspiracy.” J.A. 3648 (internal quotation marks omitted). The
response of the court, as recorded in the transcript, was equally confusing:
“You must find, in order to convict on Count 72, that there was a
single conspiracy, not multiple conspiracies. Multiple conspiracies with a
common goal. Not what was charged.” Id. The first sentence
is a correct instruction; the second and third sentences, however, arguably
contradicted it. A short time later, the jury asked two additional questions:
“Is Count 72 that
[*58] there’s one
single and only one conspiracy to be proved?” and “Does it
necessarily have to include all of the matter and means of the conspiracy as
alleged in the count?” Id. at 3649 (internal quotation marks omitted).
The district court correctly answered the first question
“yes” and the second question “no.” Hammoud construes all of this discussion regarding count 72 as a
discussion regarding counts 71 and 72, and he alleges that the district court
improperly combined the two counts. As should be clear from the above
discussion, this is not at all what happened. All of the questions from the
jury concerned whether count 72 involved a single conspiracy or multiple
conspiracies. Therefore, there was no constructive indictment. B. Cross-Examination of Hammoud Hammoud testified in his own defense, asserting that he supported
the humanitarian work of Hizballah but not its terrorist activities. On
cross-examination, the Government questioned Hammoud regarding his awareness of
violent acts by Hizballah. Hammoud now asserts that such questions constituted
“fearmongering” and violated his right to a fair trial. We
conclude that there was no error here because the prosecutor’s
questions [*59] were intended to undermine
Hammoud’s claim that he supported only the humanitarian aims of
Hizballah and that he disagreed with the violent tactics employed by Hizballah. C. Testimony Regarding Dual-Use Equipment In his final challenge to his convictions, Hammoud asserts that
the district court should not have allowed expert testimony regarding the
possible aviation applications of equipment purchased in Canada by Said Harb
and others, arguing that the sole purpose of such testimony was to
“instill[] fear and prejudice in a post-September 11 jury.”
Br. for Appellant Mohamad Y. Hammoud at 112. We agree with the Government that
this testimony was relevant to prove the “material support”
conspiracy charged in Count 72 of the indictment and was not unfairly
prejudicial. The admission of this testimony was not plain error. VII. Blakely v. Washington We now turn to the issue that prompted us to hear this case en
banc: the effect of Blakely on the federal sentencing guidelines. n14 The
question we must address is whether the rationale of Blakely (and Apprendi before it) requires
indictment and a jury finding, beyond a reasonable doubt, of facts that result
in an [*60] increase in the offense level and
corresponding guideline range. Little more than a month after Blakely was
handed down, the federal courts are already divided over this question. The
Seventh and Ninth Circuits have ruled that Blakely does impact the guidelines.
See United States v. Ameline, 376 F.3d 967, 974 (9th Cir. 2004); United
States v. Booker, 375 F.3d 508,
511 (7th Cir. 2004) (“Blakely dooms the guidelines insofar as they
require that sentences be based on facts found by a judge.”), cert.
granted, 159 L. Ed. 2d 838, 125 S. Ct. 11, 2004 U.S. LEXIS 4788, 73 U.S.L.W.
3073 (U.S. Aug. 2, 2004) (No. 04-104). In contrast, the Fifth and Sixth
Circuits have held that Blakely does not affect the guidelines. See United
States v. Koch, 2004 U.S. App. LEXIS 17640, 2004 WL 1870438, at *1 (6th Cir.
Aug. 13, 2004) (en banc) (order affirming judgment of the district court)
(“We hold … that the decision of the U.S. Supreme Court in Blakely … does not
invalidate the appellant’s sentence under the federal Sentencing
Guidelines.”); United States v. Pineiro, 377 F.3d 464, 465-66
(5th Cir. 2004) (“Having considered the Blakely decision, prior
Supreme Court cases, and
[*61] our own circuit
precedent, we hold that Blakely does not extend to the federal Guidelines
….”). The Second Circuit certified questions regarding the
application of Blakely to the guidelines to the Supreme Court, see United
States v. Penaranda, 375 F.3d 238, 247 (2d Cir. 2004), but in the meantime has
declined to apply Blakely to the guidelines, see United States v.
Mincey,
106 Fed. Appx. 750, 2004 U.S. App. LEXIS 16629, 2004 WL 1794717, at *3 (2d Cir.
Aug. 12, 2004) (per curiam). Other circuits have acknowledged the potential
impact of Blakely on the guidelines but have not directly addressed the
question. See, e.g., United States v. Duncan, 381 F.3d 1070, 2004 U.S. App.
LEXIS 17250, 2004 WL 1838020, at *3-*5 (11th Cir. Aug. 18, 2004) (holding that
any Blakely error was not “plain” under plain error
standard of review); United States v. Cianci, 378 F.3d 71, 107
(1st Cir. 2004) (deferring decision on sentencing issues pending supplemental
briefing regarding Blakely). And, on the day we heard argument in this
case, the Supreme Court granted certiorari in two cases involving Blakely and
the federal sentencing guidelines. See United States v. Booker, [543 U.S. —,] 159 L. Ed. 2d 838, 125
S. Ct. 11, 2004 U.S. LEXIS 4788, 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004) (No.
04-104); United States v. Fanfan, [543 U.S. —,] 159 L. Ed. 2d 838, 125
S. Ct. 12, 2004 U.S. LEXIS 4789, 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004) (No.
04-105). These cases are scheduled for argument on October 4, 2004. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n14 In the district court and on appeal, Hammoud argued that under
Apprendi v. New Jersey, 530
U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the facts underlying
the terrorism enhancement and the amount of tax loss should have been alleged
in the indictment and found by the jury beyond a reasonable doubt. These claims
are now subsumed by Hammoud’s claim, articulated in his supplemental
brief, that Blakely requires all facts that result in an increased offense
level to be charged in the indictment and found by the jury beyond a reasonable
doubt. We therefore do not address them separately. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - On close examination of Blakely, we conclude that the
Supreme Court simply applied—and did not modify—the rule
articulated in Apprendi. We have previously held that the rule of Apprendi does not affect the
application of the [*63] guidelines. See United States v.
Kinter,
235 F.3d 192, 198-202 (4th Cir. 2000). Nothing in Blakely requires us to
abandon our prior holding. We therefore decline to apply the holding of Blakely to the guidelines. A. Blakely 1. Determinate Sentencing in Washington State All felonies in Washington State are legislatively classified as
either A, B, or C felonies. See Wash. Rev. Code § 9A.20.010(b)
(Westlaw 2004). For crimes committed after July 1, 1984, Washington statutory
law provides a maximum term of imprisonment of life for Class A felonies, a
maximum sentence of ten years for Class B felonies, and a maximum sentence of
five years for Class C felonies. See id. § 9A.20.021(1) (Westlaw
2004). In addition to the maximum penalties specified in the felony
classification statutes, the Washington State Sentencing Reform Act of 1981
created a second level of statutory sentencing. Under this system, each
criminal offense is characterized according to its seriousness level, ranging
from Level I for relatively minor offenses such as “malicious mischief
2” up to Level XVI for “aggravated murder 1.” Wash.
Rev. Code § 9.94A.515
[*64] (Westlaw 2004). Also,
every convicted criminal defendant is assigned an offender score based largely
on the defendant’s prior criminal history. See id. § 9.94A.525
(Westlaw 2004). The statute also sets forth a sentencing grid that prescribes a
minimum and maximum sentence based on the offense seriousness level and the
offender score. See id. § 9.94A.510 (Westlaw 2004). n15 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n15 Drug offenses are sentenced pursuant to a separate sentencing
grid based on a three-level system of offense seriousness. See id. §§
9.94A.517-.518 (Westlaw 2004). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - The trial court must sentence the defendant within this statutory
sentencing range unless “there are substantial and compelling reasons
justifying an exceptional sentence” above or below the prescribed
range. Id. § 9.94A.535 P1 (Westlaw 2004). Factual findings
underlying an exceptional sentence are to be made by the court, employing a
preponderance-of-the-evidence standard. See Wash. Rev. Code §
9.94A.530(2) (Westlaw 2004). [*65]
The calculations underlying the selection of the sentencing range
are reviewable on appeal, but the choice of a particular sentence within the
statutory range is not. See State v. McCorkle, 137 Wn.2d 490, 973 P.2d 461, 462
(Wash. 1999) (en banc). However, on appeal from an exceptional sentence the
reviewing court will assess the validity of, and the factual support for, the
departure and will consider whether the sentence imposed is excessive. See
State v. Halgren, 137 Wn.2d 340, 971 P.2d 512, 514-15 (Wash. 1999) (en banc). The Washington guidelines are legislatively determined. Washington
State does have a sentencing guidelines commission, but its role is wholly
advisory—the legislature has never delegated its authority to set
sentencing policy. See Wash. Rev. Code § 9.94A.850(2)(a)-(c) (Westlaw
2004); David Boerner & Roxanne Lieb, Sentencing Reform in the Other
Washington, 28 Crime & Just. 71, 83-85 (2001) (noting that “the
Washington commission’s role was advisory from the beginning”
and that “the legislature retained its authority over sentencing, with
the guidelines commission serving in an
[*66] advisory
capacity”); State of Wash. Sentencing Guidelines Comm’n,
Powers and Duties of the Commission, at http://www.sgc.wa.gov/powersandduties.htm
(last visited Aug. 25, 2004) (stating that the statutory mandate of the
commission is limited to “evaluating and monitoring adult and juvenile
sentencing policies and practices and recommending modifications to the
Governor and the Legislature” and “serving as a clearinghouse
and information center on adult and juvenile sentencing”). 2. The Decision in Blakely In October 1998, Ralph Howard Blakely, Jr. accosted his wife at
their home, binding her with duct tape and forcing her at knife point to climb
into a “coffin-like plywood box” in the bed of his pickup
truck. State v. Blakely, 111 Wn. App. 851, 47 P.3d 149, 152 (Wash. Ct. App.
2002). As he did so, he importuned her to dismiss the divorce suit and trust
proceedings she had instituted against him. After the couple’s son,
Ralphy, arrived at the home, Blakely drove away with his wife in the back of
the truck. Blakely forced 13-year-old Ralphy to follow in Mrs.
Blakely’s car, threatening to harm Ralphy’s mother if he did
not comply. Ralphy escaped when the
[*67] family stopped at a
gas station; Blakely continued with his wife to a friend’s house in
Montana. The friend subsequently called the police, and Blakely was arrested
without incident. Blakely pleaded guilty to one count of second degree domestic
violence kidnaping and one count of second degree domestic violence assault.
Under the felony classification system, second degree kidnaping (committed
without a sexual motivation) is a Class B felony subject to a maximum penalty
of ten years. See Wash. Rev. Code § 9A.40.030(3)(a) (Westlaw 2004).
Under the Sentencing Reform Act, second degree kidnaping is a level V offense;
this level, combined with Blakely’s offender score, resulted in a
statutory sentencing range of 49-53 months. Thus, according to Washington State
law, the statutory maximum sentence was 53 months. The prosecution recommended
that Blakely be sentenced at or near the maximum. Instead, the trial court
imposed an exceptional sentence of 90 months based on its finding that Blakely
had acted with deliberate cruelty and that he had committed domestic violence
in front of his son. See Wash. Rev. Code § 9.94A.535(2)(a) [*68] , (2)(h)(ii) (Westlaw 2004). After the state court of appeals affirmed and the state supreme
court denied discretionary review, the United States Supreme Court granted
certiorari and reversed, holding that the exceptional sentence violated the
constitutional principles articulated in Apprendi. See Blakely, 124 S. Ct. at
2536-38. The Court began by noting the precise manner in which the sentencing
scheme at issue in Apprendi had offended the Constitution: “the judge
had imposed a sentence greater than the maximum he could have imposed under
state law without the challenged factual finding.” Id. at 2537. The Court found
the same defect in Blakely’s sentence, noting that the trial court
imposed an exceptional sentence because Blakely had acted with deliberate
cruelty—a fact not admitted by Blakely in connection with his plea. The Court rejected the State’s claim that there was no Apprendi problem because even
the exceptional sentence was within the ten-year maximum applicable to Class B
felonies: Our precedents make clear … that the
“statutory maximum” for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis [*69] of the
facts reflected in the jury verdict or admitted by the defendant. In other
words, the relevant “statutory maximum” is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he
may impose without any additional findings. Id. (citations omitted). The Court concluded that this
“statutory maximum” was 53 months, the top of the statutory
sentencing range, because the sentencing judge could not exceed that maximum
without making additional factual findings. See id. at 2538
(“Had the judge imposed the 90-month sentence solely on the basis of
the plea, he would have been reversed.”). Therefore, the Court ruled,
“the ‘maximum sentence’ is no more 10 years here
than it was 20 years in Apprendi (because that is what the judge could have
imposed upon finding a hate crime) or death in Ring [v. Arizona, 536 U.S. 584, 153 L. Ed.
2d 556, 122 S. Ct. 2428 (2002)] (because that is what the judge could have
imposed upon finding an aggravator).” Id. The Court also
rejected as “immaterial” the State’s assertion that
the sentence did not run afoul of Apprendi because the list of aggravating
factors in the state sentencing guidelines [*70] is
illustrative rather than exhaustive: “Whether the judge’s authority
to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several
specified facts (as in Ring), or any aggravating fact (as here), it remains the
case that the jury’s verdict alone does not authorize the
sentence.” Id. B. Application of Blakely to the Guidelines Shortly after Apprendi was decided, we held that it did not affect
the sentencing guidelines. See United States v. Kinter, 235 F.3d 192,
198-202 (4th Cir. 2000). While we acknowledged that the argument for applying Apprendi to the guidelines was
“not without support,” id. at 200, we ultimately
concluded that the claim failed in light of the quintessentially judicial
nature of the tasks performed by the Sentencing Commission, see id. at 201
(“The Commission’s act of establishing sentencing ranges in
the Guidelines is categorically different from the legislative act of setting a
maximum penalty in a substantive criminal statute.”); id. (“The
Sentencing Guidelines do not create crimes. They merely guide the discretion of
district courts in determining
[*71] sentences within a
legislatively-determined range ….”). We now re-examine this
question in light of Blakely. Blakely did not change—indeed, it
reaffirmed—the question we must ask in determining whether application
of the federal sentencing guidelines is subject to the rule of Apprendi: When a defendant is
to be sentenced pursuant to the guidelines, what is the “prescribed
statutory maximum”? After Apprendi but before Blakely, this and the other
circuit courts of appeals had unanimously concluded that the maximum the
defendant could receive “if punished according to the facts reflected
in the jury verdict alone,” Apprendi, 530 U.S. at 483, was
the maximum penalty provided in the statute setting forth the offense of
conviction (or whatever penalty statute was referenced by the statute setting
forth the offense of conviction), not the top of the guideline sentencing range
mandated by those facts. See United States v. Reyes-Echevarria, 345 F.3d 1, 6-7 (1st
Cir. 2003); United States v. Garcia, 240 F.3d 180, 182-84 (2d Cir. 2001); United
States v. Williams, 235 F.3d 858, 862-63 (3d Cir. 2000); [*72] United States v. Doggett, 230 F.3d 160, 166
(5th Cir. 2000); United States v. Lawrence, 308 F.3d 623, 634-35 (6th Cir. 2002);
United States v. Knox, 301 F.3d 616, 620 (7th Cir. 2002); United States v.
Walker,
324 F.3d 1032, 1041 (8th Cir.), cert. denied, 540 U.S. 898, 157 L. Ed. 2d 178,
124 S. Ct. 247 (2003); United States v. Ochoa, 311 F.3d 1133,
1135-36 (9th Cir. 2002); United States v. Jackson, 240 F.3d 1245, 1249
(10th Cir. 2001); United States v. Harris, 244 F.3d 828, 829-30 (11th Cir.
2001); United States v. Fields, 346 U.S. App. D.C. 226, 251 F.3d 1041,
1043-44 (D.C. Cir. 2001). Blakely not only did not change the inquiry we must make, it also
adhered to the rule the Court had announced in Apprendi:
“‘Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt.’” Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, and
explaining that “this case requires [*73] us to
apply the rule we expressed in Apprendi” (emphasis added)).
Therefore, in view of the fact that Blakely changed neither the
question nor the rule for answering the question, we must determine what it is
in Blakely that has prompted some courts to abandon the previously held view
that the rule of Apprendi does not affect the guidelines. We think the most likely culprit is the broad language found in
parts of Blakely, particularly the following passage: Our precedents make clear … that the
“statutory maximum” for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant. See Ring, supra, at 602
(“‘the maximum he would receive if punished according to the
facts reflected in the jury verdict alone’” (quoting Apprendi,
supra,
at 483)); Harris v. United States, 536 U.S. 545, 563, 153 L.
Ed. 2d 524, 122 S. Ct. 2406 (2002) (plurality opinion) (same); cf. Apprendi,
supra,
at 488 (facts admitted by the defendant). In other words, the relevant
“statutory maximum” is not the maximum sentence a judge may
impose after finding [*74] additional facts, but the maximum he may
impose without any additional findings. When a judge inflicts punishment that
the jury’s verdict alone does not allow, the jury has not found all
the facts “which the law makes essential to the punishment,” Bishop,
supra,
§ 87, at 55, and the judge exceeds his proper authority. Blakely, 124 S. Ct. at 2537 (parallel citations omitted). In light of this language, it is hardly surprising that several
courts have held that Blakely signals the demise of the guidelines. See,
e.g., Booker, 375 F.3d at 511. Viewing the above-quoted passage alone, and
noting the quotation marks surrounding the term “statutory
maximum,” it is not that far-fetched to conclude that the Court
intended to encompass within its holding any situation in which a binding
maximum—whether statutory or not—is increased by virtue of a
judicial finding. Indeed, Justices O’Connor and Breyer expressed
concern that the decision in Blakely necessarily implied the invalidity of
important aspects of the federal guidelines system. See Blakely, 124 S. Ct. at 2550
(O’Connor, J., dissenting) (“If the Washington scheme
does [*75] not comport with the Constitution, it
is hard to imagine a guidelines scheme that would.”); id. at 2561 (Breyer, J.,
dissenting) (“Until now, I would have thought the Court might have
limited Apprendi so that its underlying principle would not undo sentencing reform
efforts. Today’s case dispels that illusion… Perhaps the
Court will distinguish the Federal Sentencing Guidelines, but I am uncertain
how.”). We think that those courts which have held that the Blakely Court redefined the
term “statutory maximum,” see Booker, 375 F.3d at 514,
have failed to account for the factual and legal context in which Blakely was
decided. Under Apprendi, a jury verdict or plea of guilty authorizes the sentencing
judge to impose a sentence up to the legislatively prescribed maximum specified
in the statute that sets forth the offense of conviction. See Apprendi, 530 U.S. at 482
(noting that “the judge’s task in sentencing is to determine,
within fixed statutory or constitutional limits, the type and extent of
punishment after the issue of guilt has been resolved” (alteration
& internal quotation marks omitted)). Blakely required the
Court [*76] to apply this principle to a sentencing
scheme involving two legislatively prescribed statutory maximum penalties. See Blakely, 124 S. Ct. at 2537
(describing the top of the sentencing range under the Washington State
Sentencing Reform Act as a “statutory maximum”); Booker, 375 F.3d at 518
(Easterbrook, Circuit Judge, dissenting) (“Blakely arose from a need to
designate one of two statutes as the ’statutory
maximum’.”). This understanding of Blakely is consistent with Apprendi, in which the Court
repeatedly used language indicating that jury protections come into play when
legislatively prescribed penalties are at issue. n16 See Apprendi, 530 U.S. at 481
(noting history of judicial discretion to sentence “within the range
prescribed by statute” (emphasis omitted)); id. (observing that
“our periodic recognition of judges’ broad discretion in
sentencing … has been regularly accompanied by the qualification that
that discretion was bound by the range of sentencing options prescribed by the
legislature” (emphasis added)); id. at 484 (noting
heightened stigma that attaches when a defendant “faces [*77] punishment beyond that provided by statute”
(emphasis added)); id. at 487 n.13 (limiting McMillan “to cases that
do not involve the imposition of a sentence more severe than the statutory
maximum for the offense established by the jury’s verdict”
(emphasis added)); id. at 490 (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (emphasis added)). There is no reason to believe
that this explicit linking of Sixth Amendment rights to legislatively
prescribed penalties was ill-considered or accidental. Cf. Booker, 375 F.3d at 518
(Easterbrook, Circuit Judge, dissenting) (“Why did the Justices deploy
that phrase [’statutory maximum’] in Apprendi and repeat it in Blakely (and quite a few
other decisions)? Just to get a chuckle at the expense of other judges who took
them seriously and thought that ‘statutory maximum’ might
have something to do with statutes? Why write ‘statutory
maximum’ if you mean ‘all circumstances that go into ascertaining
the proper sentence’?”). [*78] - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n16 A proper reading of Blakely also allows us to
take the Court at its word when it stated that it was
“applying” the rule of Apprendi, not modifying it. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Our understanding of Blakely also comports with the prior
guidelines decisions of the Supreme Court. The Court has upheld guidelines
sentencing against every constitutional challenge thus far brought before it; a
holding that Blakely renders important aspects of guidelines sentencing
unconstitutional would undermine, if not outright nullify, several of these
decisions. n17 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n17 United States v. Dunnigan, 507 U.S. 87, 92-96, 122 L.
Ed. 2d 445, 113 S. Ct. 1111 (1993), in which the Court held that the guidelines
permit an obstruction of justice enhancement, see U.S.S.G. § 3C1.1,
for perjury at trial, is not one of these cases. Dunnigan concerned primarily a
question of guidelines construction, and so it is not irreconcilable with any
reading of Blakely. However, it is worth noting that Dunnigan conflicts with
Blakely in one respect. Justice O’Connor expressed concern in her Blakely dissent that
extension of Apprendi to determinate sentencing systems would render such
systems unworkable, in part because some facts—such as perjury at
trial-cannot be discovered in time to be included in the indictment. See Blakely, 124 S. Ct. at 2546
(O’Connor, J., dissenting). The majority disparaged this concern,
stating, “Why perjury during trial should be grounds for a judicial
sentence enhancement on the underlying offense, rather than an entirely
separate offense to be found by a jury beyond a reasonable doubt (as it has
been for centuries), is unclear.” Id. at 2539 n.11
(citation omitted). But, the Court had already answered that question in Dunnigan: The enhancement is
more than a mere surrogate for a perjury prosecution. It furthers legitimate
sentencing goals relating to the principal crime, including the goals of
retribution and incapacitation. It is rational for a sentencing authority to
conclude that a defendant who commits a crime and then perjures herself in an
unlawful attempt to avoid responsibility is more threatening to society and
less deserving of leniency than a defendant who does not so defy the trial
process. Dunnigan, 507 U.S. at 97 (citations omitted). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*79] We begin with Mistretta v. United States, 488 U.S. 361, 102 L. Ed.
2d 714, 109 S. Ct. 647 (1989), in which the Supreme Court upheld the
constitutionality of the guidelines against nondelegation and separation of
powers challenges. Characterizing the guidelines as
“Congress’ considered scheme for resolving the seemingly
intractable dilemma of excessive disparity in criminal sentencing,” id. at 384, the Court
concluded that Congress’ establishment of the Sentencing Commission
did not violate separation of powers principles, see id. at 380-411. Of
particular relevance here, the Court noted that Although the Guidelines are intended to have
substantive effects on public behavior …, they do not bind or regulate
the primary conduct of the public or vest in the Judicial Branch the
legislative responsibility for establishing minimum and maximum penalties for
every crime. They do no more than fetter the discretion of sentencing judges to
do what they have done for generations—impose sentences within the
broad limits established by Congress. Id. at 396 (emphasis added). Mistretta thus makes clear that
the guidelines [*80] do collectively what federal district
judges previously did individually—select a sentence within the range
of penalties specified by Congress. See Kinter, 235 F.3d at 201
(“The Commission’s act of establishing sentencing ranges in
the Guidelines is categorically different from the legislative act of setting a
maximum penalty in a substantive criminal statute.”). In short, the Mistretta Court rejected a constitutional challenge to
the guidelines on the basis that the Sentencing Commission performs not a
legislative function, but a judicial one. Application of Blakely to the guidelines,
however, necessarily would require a conclusion that the Sentencing Commission
performs not a judicial function, but a legislative one. This is so because Blakely applies to the
guidelines only if the Blakely Court redefined the term “statutory
maximum” to include any fact that increases a defendant’s
potential sentence—regardless of its status as a statute or regulation
and regardless of its provenance. Under such a definition of
“statutory maximum,” the Commission performs a legislative
function in contravention of Mistretta. n18 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n18 In this vein, we note that Congress certainly did not view the
function of the Sentencing Commission as a legislative one. The legislative
history of the Sentencing Reform Act is clear that the function of the
guidelines is to channel judicial discretion within the range of statutory
penalties established by Congress. See, e.g., S. Rep. No. 98-225, at 51 (1983)
(“The definition of maximum prison terms [under the Sentencing Reform
Act] does not alter existing statutory maximums: the existing Federal statutes
still determine the maximum terms of imprisonment.”), reprinted in
1984 U.S.C.C.A.N. 3182, 3234. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*81] A similar problem appears when we consider other Supreme Court
decisions addressing the guidelines. One such case is Edwards v. United
States,
523 U.S. 511, 140 L.
Ed. 2d 703, 118 S. Ct. 1475 (1998). The Edwards defendants were charged with a
drug-trafficking conspiracy involving cocaine and cocaine base
(“crack”). See id. at 512-13. The district court instructed the
jury that it must find that the defendants’ conduct involved crack or
cocaine, and the jury returned a general verdict of guilty. See id. at 513. The court
then determined that the defendants’ relevant conduct involved both
forms of cocaine and premised its guidelines computations on this finding. See id. A unanimous Supreme
Court upheld these computations, noting that “the Sentencing
Guidelines instruct the judge in a case like this one to determine both the
amount and the kind of controlled substances for which a defendant should be
held accountable.” Id. at 513-14 (internal quotation marks omitted). The Court rejected the defendants’ claim that the
district court was required by the Constitution or the relevant statute to
presume that the jury found
[*82] that the conspiracy
involved only cocaine, reasoning that such a presumption would have little
effect because the district court would still be required to impose a sentence
based on all relevant conduct, including conduct found by the judge but not the
jury. See id. at 514. The Court added, “Petitioners’
statutory and constitutional claims would make a difference if it were possible
to argue, say, that the sentences imposed exceeded the maximum that the
statutes permit for a cocaine-only conspiracy.” Id. at 515. This was not
the case, however, because “the sentences imposed … were
within the statutory limits applicable to a cocaine-only conspiracy.” Id. In short, the Court concluded in Edwards that the district court
was required by the guidelines to go beyond the “facts found by the
jury” and determine for itself the type and quantity of drugs involved
in the offense, and it rejected any possible constitutional challenge to this
scheme precisely because the sentence imposed—based, as it was, on
judicial findings of fact—was not more than the legislatively
prescribed statutory maximum authorized by the finding of guilt by the
jury. [*83] Edwards is entirely
consistent with the rule adopted in Apprendi, which requires a
jury finding for facts that establish the maximum potential statutory penalty.
See Apprendi, 530 U.S. at 487 n.13 (explaining that Apprendi rule applies to
“the imposition of a sentence more severe than the statutory maximum
for the offense established by the jury’s verdict”). Edwards is also consistent
with our understanding of Blakely, i.e., that in Blakely the Court simply
applied the rule of Apprendi to a new set of facts. If one understands Blakely as having broadened
the definition of “statutory maximum,” however, Edwards is no more. Under a supposed
Blakely “redefinition” of statutory maximum, the Court
could not have brushed aside the constitutional question presented in Edwards
simply by stating that the findings made by the district court did not cause
the sentence to exceed “the maximum that the statutes permit for a
cocaine-only conspiracy.” Edwards, 523 U.S. at 515. To the contrary,
under the asserted Blakely redefinition of “statutory
maximum,” the Edwards Court would have faced a substantial
constitutional [*84] question because the findings made by
the district court regarding drug type and quantity would have increased the
statutory maximum, thereby creating a right to jury findings on those
questions. We must also be mindful of the effect of an incorrect reading of Blakely on United States
v. Watts, 519 U.S. 148,
136 L. Ed. 2d 554, 117 S. Ct. 633 (1997) (per curiam). In Watts, the Supreme Court
thought it so obvious that judges could consider acquitted conduct in
sentencing a defendant under the guidelines, see id. at 157, that the
case was decided without oral argument despite Watts’ claim that such
a rule posed constitutional problems under the Double Jeopardy Clause, the Due
Process Clause , and the Sixth Amendment, see Respondent Watts’ Brief
in Opposition, United States v. Watts, 519 U.S. 148, 136 L. Ed.
2d 554, 117 S. Ct. 633 (1997) (No. 95-1906), 1996 WL 33413758, at *9-*13. The sentence challenged in Watts was based in part on acquitted
conduct, i.e., factual allegations that the jury determined had not been proven
beyond a reasonable doubt. The Court nevertheless upheld this sentence, noting
the lower standard of proof applicable to sentencing [*85]
proceedings and reiterating its previous holding that
“application of the preponderance standard at sentencing generally
satisfies due process.” Watts, 519 U.S. at 156 (citing McMillan
v. Pennsylvania, 477 U.S. 79,
91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986)). If Blakely redefined the term
“statutory maximum,” however, consideration of acquitted
conduct in establishing the guideline range would violate the Due Process
Clause precisely because of the lower standard of proof. In summary, we conclude that the fundamental question under Apprendi and Blakely is not simply whether
judicial fact finding increases a defendant’s sentence relative to the
sentence that would otherwise be imposed. Such a reading of these cases fails
to take into account the context in which they were decided—a context
which included the prior statements of the Supreme Court regarding the federal
sentencing guidelines and Congress’ intent in enacting the Sentencing
Reform Act—and thus misapprehends the rule they impose. In fact, the
pertinent question is whether a judicial factual finding has increased the
defendant’s sentence beyond what the legislature has authorized as the
consequence [*86] of a conviction or guilty plea. There
is thus a very real difference between federal statutes (which define crimes
and set forth statutory penalty ranges, a legislative function) and the federal
sentencing guidelines (which channel judicial discretion in selecting a penalty
within the range authorized by Congress, a judicial function). We therefore
conclude that Blakely, like Apprendi before it, does not affect the operation of
the federal sentencing guidelines. C. Instructions to the District Courts We previously instructed district courts within the Fourth Circuit
to continue sentencing defendants in accordance with the guidelines, as was the
practice before Blakely. See Hammoud, 378 F.3d 426, 2004 WL 1730309, at *1. We
further recommended that those courts announce, at the time of sentencing, a
sentence pursuant to 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2004), treating the guidelines as advisory only. We believe that announcing—not imposing—a
non-guidelines sentence at the time of sentencing will serve judicial economy
in the event that the Supreme Court concludes that Blakely significantly
impacts guidelines sentencing. n19
[*87] The announcement of a
non-guidelines sentence may require the district court to consider issues not
generally pertinent in guidelines sentencing, thereby requiring the investment
of additional time at the sentencing hearing. If the Supreme Court does not
apply Blakely to the guidelines, this will be wasted effort. If the Court does
apply Blakely to the guidelines, however, the district court and the parties
will have made at least substantial progress toward the determination of a
non-guidelines sentence, at a time when the facts and circumstances were
clearly in mind. While a new hearing may have to be convened in order to impose
the previously determined and announced non-guidelines sentence, we anticipate
that the district court and the parties will need to spend far less time
preparing because the issues will already have been resolved. We therefore
continue to recommend that district courts within the Fourth Circuit announce,
at the time of imposing a guidelines sentence, a sentence pursuant to 18
U.S.C.A. § 3553(a), treating the guidelines as advisory only. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n19 At least one district court within our jurisdiction has
indicated confusion about our recommendation. See United States v. Johnson, 333 F. Supp. 2d 573,
2004 U.S. Dist. LEXIS 16077, No. 6:04-00042, slip op. at 2-3 (S.D. W. Va. Aug.
13, 2004). We emphasize that our recommendation is not intended to import
uncertainty into the sentencing process through the imposition of multiple
sentences. Under our prior order, district courts must impose a guidelines
sentence which, absent a contrary direction from the Supreme Court, the
defendant will serve. However, we cannot ignore the possibility that the
Supreme Court will apply Blakely to the guidelines, and for the reasons stated
in the text of this opinion, we believe it will serve the interests of judicial
economy for a non-guidelines sentence to be determined at the time of the
sentencing hearing. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*88] VIII. Sentencing Issues Having determined that Blakely does not affect Hammoud’s
sentence, we now consider the remainder of his challenges to his sentence.
Hammoud challenges several rulings made by the district court during
sentencing. The most significant of these claims concerns the application of
the terrorism enhancement, see U.S.S.G. § 3A1.4. Hammoud’s
remaining sentencing claims may be disposed of more briefly. A. Terrorism Enhancement Section 3A1.4 applies “if the offense is a felony that
involved, or was intended to promote, a federal crime of terrorism.”
The term “federal crime of terrorism” is defined as
commission of an enumerated felony—including providing material
support to a designated FTO in violation of 18 U.S.C.A. § 2339B—that
“is calculated to influence or affect the conduct of government by
intimidation or coercion, or to retaliate against government conduct.”
18 U.S.C.A. § 2332b(g)(5) (West 2000 & Supp. 2004); see U.S.S.G. §
3A1.4, comment. (n.1). 1. Standard of Proof Hammoud argues that the preponderance standard that [*89] generally governs in sentencing proceedings should not apply
here because § 3A1.4 is “a tail which wags the dog of the
substantive offense,” McMillan v. Pennsylvania, 477 U.S. 79, 88, 91 L. Ed.
2d 67, 106 S. Ct. 2411 (1986), and therefore must be proved at least by clear
and convincing evidence. Because Hammoud did not raise this claim in the
district court (he instead asserted that the facts underlying the enhancement
had to be found by a jury beyond a reasonable doubt under Apprendi), we review for plain
error. As noted previously, the plain error standard requires Hammoud to
demonstrate that there was error that was plain and affected his substantial
rights; we must then determine that the exercise of our discretion to correct
the error is necessary to protect the integrity of judicial proceedings. For
the reasons set forth below, we conclude that any error was not plain. In McMillan, the Supreme Court noted that due process is generally
satisfied when sentencing factors are proved by a preponderance of the
evidence; the Court rejected a claim that a factor requiring imposition of a
mandatory minimum sentence should be subject to a higher standard of proof. See
id.
at 91-92. [*90] In reaching this conclusion, the court
noted that the statutory mandatory minimum at issue there—for visible
possession of a firearm—“operates solely to limit the
sentencing court’s discretion in selecting a penalty within the range
already available to it without the special finding of visible
possession” and that “the statute gives no impression of
having been tailored to permit the visible possession finding to be a tail
which wags the dog of the substantive offense.” Id. at 88. While this court has taken the language of McMillan as an
indication that the Due Process Clause imposes some limitations on the use of
sentencing factors proven only by a preponderance of the evidence, we have
never defined those limits and have never declared a sentence invalid on the
basis that a sentencing factor was established by an inadequate standard of
proof. See, e.g., United States v. Montgomery, 262 F.3d 233, 249-50
(4th Cir. 2001) (stating that “proof by a preponderance of evidence is
sufficient as long as the enhancement is not a tail that wags the dog of the
substantive offense”; not deciding whether the district court was
required to apply a heightened
[*91] standard, as it had
made the relevant finding by clear and convincing evidence “in an
abundance of caution” (internal quotation marks omitted)); United
States v. Fenner, 147 F.3d 360, 366-67 (4th Cir. 1998) (stating that “sometimes
the prosecution must bear the burden of proving beyond a reasonable doubt facts
bearing upon sentencing” but noting that such circumstances had not
been defined). The Sixth Circuit has held—in a case involving the
§ 3A1.4 enhancement—that it is never necessary to apply a
heightened standard of proof to a sentencing factor. See United States v.
Graham,
275 F.3d 490, 517 n.19 (6th Cir. 2001). The court reasoned that The McMillan Court’s
apparent concern was not whether the sentencing factor’s effect on the
ultimate sentence was significant, but whether it was appropriately
characterized as guiding the court’s discretion in punishing the
defendant for the crime for which he was convicted. As long as a sentencing
factor does not alter the statutory range of penalties faced by the defendant
for the crime of which he was convicted, McMillan permits the factor to
be found by preponderance of the evidence. [*92] Id. In contrast, the Ninth Circuit has
imposed a heightened standard of proof in a number of cases. See, e.g., United
States v. Jordan, 256 F.3d 922, 927-28 (9th Cir. 2001) (noting that court has
applied heightened standard of proof for seven-level and nine-level
enhancements and articulating “totality of the circumstances”
test for determining whether heightened standard should apply (internal
quotation marks omitted)). And, the Third Circuit has required application of
the clear and convincing standard to factual findings underlying an upward departure
that increased the defendant’s sentence from 30 months to 30 years.
See United States v. Kikumura, 918 F.2d 1084, 1100-1102 (3d Cir. 1990). In the absence of a binding decision from this court or the
Supreme Court, and in view of the conflicting views of the other circuits, we
conclude that any error in the standard of proof applied by the district court
was not plain. See United States v. Neal, 101 F.3d 993, 998 (4th Cir. 1996). 2. Application of the Enhancement Hammoud raises two additional arguments regarding the terrorism
enhancement. First, Hammoud contends that the [*93] district
court should have applied U.S.S.G. § 2M5.3—the guideline
specifically applicable to violations of § 2339B—rather than
§ 3A1.4. Even assuming that the district court should have applied
§ 2M5.3, n20 there was no error. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n20 Section 2M5.3 first appeared in the 2002 Guidelines Manual,
after Hammoud committed his violations of § 2339B (which were
completed in 2000). Because application of § 2M5.3 would have resulted
in a higher base offense level, the district court arguably should have applied
the 2000 version of the Guidelines Manual. See U.S.S.G. § 1B1.11(b)(1);
Elliott v. United States, 332 F.3d 753, 767 n.12 (4th Cir. 2003). We note that the PSR indicates that the 2002 manual was applied.
Hammoud does not challenge the application of the 2002 guidelines manual. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Setting § 2M5.3 aside for the moment, it is clear that
the terrorism enhancement may be imposed on a defendant who has been convicted
of providing material [*94] support to a designated FTO. Section
3A1.4 applies “if the offense is a felony that involved … a
federal crime of terrorism.” Id. § 3A1.4(a). As the Sixth
Circuit has noted, “the word ‘involved’ occurs
frequently throughout the Guidelines, both in the substantive provisions and in
the commentary, and is typically employed to mean
‘included.’” Graham, 275 F.3d at 516. We
therefore think it is reasonable to understand § 3A1.4 as applying to
a circumstance such as this one, in which one of the counts of conviction is
alleged to be a federal crime of terrorism. See id. (concluding that
§ 3A1.4 applies when the defendant has committed a federal crime of
terrorism). Violation of § 2339B is one of the crimes enumerated in
the definition of “federal crime of terrorism.”
Therefore—still setting § 2M5.3 aside momentarily—a
defendant who has been convicted of providing material support to an FTO may be
subject to the enhancement if the evidence establishes that he provided such
support with the intent to influence or coerce government conduct. Having determined that the terrorism enhancement would apply to
Hammoud if § 2M5.3 did not exist, we now turn to the [*95] question of whether the existence of § 2M5.3
changes our analysis. We conclude that it does not. As best we can discern from
his rather conclusory argument, Hammoud’s concern is that application
of both § 2M5.3 and § 3A1.4 would constitute double counting,
and therefore a district court could apply one or the other, but not both. We
disagree. Double counting under the guidelines occurs “when a
provision of the Guidelines is applied to increase punishment on the basis of a
consideration that has been accounted for by application of another Guideline
provision.” United States v. Reevey, 364 F.3d 151, 158
(4th Cir. 2004). Double counting is permissible unless the guidelines expressly
prohibit it in a given circumstance. See id. Thus, “an
adjustment that clearly applies to the conduct of an offense must be imposed
unless the Guidelines expressly exclude its applicability.” United
States v. Williams, 954 F.2d 204, 207 (4th Cir. 1992). Nothing in either §
2M5.3 or in § 3A1.4 prohibits the application of both provisions.
Hammoud’s double counting claim therefore fails. Hammoud also maintains that the evidence does not support
application of the [*96] terrorism enhancement. We disagree. The
evidence presented at trial established that Hammoud had close connections with
Hizballah officials, including its spiritual leader and a senior military
commander. Other evidence—including Hammoud’s own
testimony—indicated that Hammoud was well aware of
Hizballah’s terrorist activities and goals and that he personally supported
this aspect of Hizballah. In short, the evidence presented at trial was
sufficient to establish that Hammoud provided material support to Hizballah
with the intent to influence or coerce government conduct. B. Sophisticated Money Laundering The money laundering guideline provides for a two-level
enhancement if the defendant is convicted of violating 18 U.S.C.A. §
1956 and “the offense involved sophisticated money
laundering.” U.S.S.G. § 2S1.1(b)(3). The commentary provides
that “’sophisticated laundering’ means complex or
intricate offense conduct pertaining to the execution or concealment”
of the offense, and “typically involves the use of”
fictitious entities, shell corporations, “layering” of
transactions, or offshore accounts. Id. § 2S1.1, comment. (n.5(A)). Here, the district court found that Hammoud and his coconspirators
employed fictitious entities and shell corporations in the course of laundering
the proceeds from the cigarette smuggling operation. This finding is not
clearly erroneous, and therefore the enhancement was properly applied. C. Obstruction of Justice Finally, Hammoud challenges application of an enhancement for
obstruction of justice, see U.S.S.G. § 3C1.1, that was based upon his
testimony at trial. An obstruction of justice enhancement based on perjured
trial testimony is proper when “the defendant … (1) gave
false testimony; (2) concerning a material matter; (3) with the willful intent
to deceive (rather than as a result of confusion, mistake, or faulty
memory).” United States v. Quinn, 359 F.3d 666, 681 (4th Cir. 2004)
(internal quotation marks omitted). Here, count 78 charged Hammoud with giving
$ 3,500 to Hizballah; as part of its case, the Government introduced into
evidence the receipt for this donation. Hammoud, however, denied ever having
donated any money to Hizballah. Under these circumstances, application of the
enhancement was not clear
[*98] error. IX. Conclusion For the reasons set forth above, we reject each of
Hammoud’s challenges to his convictions and sentence. We therefore
affirm the judgment of the district court in its entirety. AFFIRMED CONCURBY:
WILKINSONDennis W. Shedd ; WIDENER CONCUR: WILKINSON, Circuit Judge,
concurring: The United States Sentencing Guidelines are constitutional. To
invalidate the Guidelines as presently applied, the federal judiciary would
have to seize a sizable chunk of legislative territory. While I acknowledge the
view that invalidation of the Guidelines would mark a great democratic
development, I regard their evisceration as an unwarranted accretion of power
by the federal courts. The great drawback of applying Blakely v. Washington, [542 U.S. 296,] 159 L. Ed. 2d 403,
124 S. Ct. 2531 (2004), to the Sentencing Guidelines is that in doing so the
federal courts would perform a legislative function. It is and always has been
the prerogative of the legislature to define the elements of a criminal
offense. In denominating those sentencing factors which must now be treated as
elements and found by a jury, the courts arrogate to themselves the most basic
of legislative tasks. I do not think
[*99] the judiciary can
legislate the elements of a criminal offense without bending the Constitution
beyond recognizable shape. An element of a crime must be found by a jury as a precondition to
guilt. It is what a jury must establish in order to convict a defendant of the
charged offense. Sentencing factors are not elements. When a fact is not
necessary for conviction of an offense — an offense passed into law by
Congress — that fact becomes a “factor” because it
cannot by definition be an “element.” If the judiciary is now
to announce that sentencing factors must be found as elements beyond a
reasonable doubt, that badly skews the balance that Congress has historically
been able to strike between guilt and punishment. Of course, it will be said that if Blakely extends to the
Guidelines, the judiciary is not in reality creating elements of new offenses,
and juries in reality are simply finding facts as they have always done. This,
however, ignores the substance of what is taking place. When a jury is required
to find a fact beyond a reasonable doubt, it is fulfilling precisely the same
function that the legislature historically has mandated for it in determining
the guilt of [*100] a legislatively prescribed offense. And
when the judiciary requires juries to do that which the legislature has
historically had exclusive power to direct them to do, judges have assumed the
lawmaker’s role. Pretending otherwise would draw us into a constitutional dilemma.
If what the Supreme Court and Courts of Appeals have always understood to be
factors are now understood to be elements, our problems are larger than we
realize. Mistretta held that the Guidelines “do not bind or regulate the
primary conduct of the public or vest in the Judicial Branch the legislative
responsibility for establishing minimum and maximum penalties for every crime.
They do no more than fetter the discretion of sentencing judges to do what they
have done for generations — impose sentences within the broad limits
established by Congress.” Mistretta v. United States, 488 U.S. 361, 396, 102 L.
Ed. 2d 714, 109 S. Ct. 647 (1989). If, all along, the Sentencing Commission, in contravention of Mistretta, was actually
creating elements, then it was also creating dozens and hundreds of new
offenses. If the judiciary suddenly can say that juries must find all the facts
that attach to these offenses,
[*101] then judges have
assigned themselves the enterprise of creating and defining crimes. But
creating elements and defining offenses is a purely legislative power; offenses
created within the judicial branch are void because they were not authorized by
the law-making procedure our Constitution allows, that of Article I, Section 7.
Installing judges, not Congress, as arbiters of the necessary elements of any
given offense is hardly what the Sixth Amendment and the nature of our
democracy allow, let alone demand. Some may argue that separation of powers is not implicated because
the power to create elements is a delegable function. [We] disagree. The power
of legislatures to define crimes and to set ranges of punishment is no small
thing. Criminal law is the basic bulwark of public safety in our country, and
it makes sense that the formulation of offenses would be left in turn to the
people’s representatives. To apply Blakely to the Guidelines
essentially severs the connection between public protection and popular
governance. Put plainly, it erodes the legislature’s constitutional prerogative
to pass criminal laws to protect the American people. Since Blakely, the air has been filled [*102] with anticipation of the invalidation of the Guidelines.
There has been no shortage of suggestions for legislative “fixes”
whereby Congress might reclaim its authority to define crimes and set
parameters of punishment. Whether those new sentencing regimes would be more
opaque or draconian than the present system is unclear. Whether any new regime
would pass constitutional muster is itself uncertain. At a minimum, it will
take more months of confusion and years of litigation to find out. The hard
truth is that none of us can envision the future or forecast the shape of a
post-Guidelines world. We live, however, in a constitutional present. Congress has
proclaimed, in the United States Code, what the elements of a crime are. It has
instructed the courts to ensure through the Guidelines that the exercise of
sentencing discretion is evenhanded, fair, non-discriminatory, and predictable.
See Sentencing Reform Act of 1984, 28 U.S.C. § 991(b)(1)(B) (2000).
What Congress — the most democratic of the branches — did not
do was authorize the bench to create additional elements on its own. Nor could
it, as Mistretta teaches. Yet some now maintain that the democratic [*103] features of jury deliberation require judges to start
legislating and to push Congress aside. I think such a result antithetical to our democracy, regardless of
how it is spun. Contrary to the dissent’s representations, I do not in
any sense argue that Apprendi “got it wrong.” Post at ___
n.4. To the contrary, I argue that invalidation of the Guidelines is in no
sense required by Supreme Court precedent. Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.
2d 435, 120 S. Ct. 2348 (2000), Ring v. Arizona, 536 U.S. 584, 153 L. Ed.
2d 556, 122 S. Ct. 2428 (2002), and most recently Blakely, have not required
the courts to legislate from the bench. * In each case, the Court held that any
fact which increases a statutory maximum must be found by a jury. In each case,
the Court keyed the analysis to the statutory maximum, thus operating explicitly
within the framework that the legislature had imposed. But if any facts that
increase a sentence without reference or regard to the statutory parameters
must be found by a jury, then legislatures are no longer the creators of
criminal law and judges no longer the instruments of guided sentencing
discretion. The Apprendi line
[*104] of cases sought to
prevent judges from assuming the legislative prerogative; Hammoud now asks
judges to assume that very same prerogative. To accept his invitation is to
trample on the democratic foundations of our constitutional order. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- * My good colleague in dissent says that “the Supreme
Court has spoken.” Post at . More specifically, she argues that the
question of whether courts are impermissibly creating legislative offense
elements is foreclosed. To the contrary, this issue is at the center of the
entire Guidelines debate. First, if the issue were foreclosed, why did the Supreme Court in Blakely take the trouble to
state explicitly that its holding did not extend to the Guidelines? See Blakely, 124 S. Ct. at 2538
n.9. The Court will not reach out to decide unpresented questions, but neither
will it purposefully sow confusion by expressing agnosticism about a
proposition not in doubt. Second, if the ability of courts to create offense
elements is so plain, why has the Court not overruled Edwards v. United
States,
523 U.S. 511, 140 L. Ed.
2d 703, 118 S. Ct. 1475 (1998); United States v. Watts, 519 U.S. 148, 136 L. Ed.
2d 554, 117 S. Ct. 633 (1997) (per curiam); Witte v. United States, 515 U.S. 389, 132 L. Ed.
2d 351, 115 S. Ct. 2199 (1995); or Stinson v. United States, 508 U.S. 36, 123 L. Ed. 2d
598, 113 S. Ct. 1913 (1993)? In each case it allowed judges to find sentencing
enhancements under the preponderance standard. Third, if the issue is
foreclosed, why was the linchpin of the argument in Apprendi, Ring, and Blakely tied to the question
of whether a fact caused a sentence to exceed the statutory maximum —
an inquiry which by its nature respects the division of legislative and
judicial authority? Finally, if this fundamental argument is so foreclosed, one
is left to wonder how nine members of this court, unanimous panels of the Fifth
and Eleventh Circuits, and the en banc Sixth Circuit, have found the Sentencing
Guidelines constitutional in light of Blakely. See United States v. Reese, 382 F.3d 1308, 2004
U.S. App. LEXIS 18605, 2004 WL 1946076 (11th Cir. Sept. 2, 2004); United
States v. Koch, 383 F.3d 436, 2004 U.S. App. LEXIS 18138, 2004 WL 1899930 (6th
Cir. Aug. 26, 2004)(en banc); United States v. Pineiro, 377 F.3d 464 (5th
Cir. 2004). And if “controlling precedent” is so clear that
failure to see it is “surprising,” how much more surprising
it must be that the Second Circuit, unanimously and en banc, certified the
question to the Supreme Court, for the first time since 1981, because this was
not an issue where “doctrinal uncertainty may be tolerated.” United
States v. Penaranda, 375 F.3d 238, 245 (2d. Cir. 2004) (en banc). If the question of
whether Blakely requires us to treat factors and elements the same was so clear,
why has the Supreme Court expedited cases for argument on the first day of its
Term to answer it? I do, however, appreciate that my colleague accepts my central
critique of applying Blakely to the Guidelines — namely that to
do so is to convert factors into elements. See post at n. 4 (“treating
’sentencing factors’ that mandate enhancement of a sentence
as ‘elements’ is exactly what” precedent requires).
My colleague neglects to mention any reason why such a course is justifiable. Whether the Sixth Amendment requires juries to find most sentence
enhancing facts is integrally tied to the question of whether our
constitutional structure reserves to legislatures alone the power to
criminalize behavior. Indeed, the Sixth Amendment issue cannot be resolved
without asking whether the creation of non-legislative elements commandeers the
core constitutional function of a coordinate branch. Such judicial alchemy
— converting legislative into judicial power — is not
justifiable. Creating elements is what legislatures, and only legislatures, can
do. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*105] Sixth Amendment rights are precious. Hammoud’s were fully
protected — a jury of his peers convicted him of no fewer than
fourteen statutory offenses. But the particular Sixth Amendment right pressed
after Blakely is novel and evolving; the democratic liberties at risk are
ancient ones. The assignment to juries of all factual findings that may affect
a sentence will doubtless be advertised as a great democratic development. In
my judgment, it is profoundly anti-democratic because the least accountable
branch has claimed for itself a power historically entrusted to the
people’s representatives. Because the opinion for the court refuses to
assume powers that cannot be assumed, I am pleased to concur. SHEDD, Circuit Judge, concurring: I fully concur in Parts I-VI and VIII of the majority opinion.
Concerning Part VII, the majority correctly frames the issue before us as
“whether the rationale of Blakely (and Apprendi before it) requires
indictment and a jury finding, beyond a reasonable doubt, of facts that result
in an increase in the offense level and corresponding guideline
range.” Ante at 48. Blakely and Apprendi, of course, do not
involve the constitutionality
[*106] of the guidelines. As
the majority points out, however, the Supreme Court has spoken on the
constitutionality of the guidelines in differing contexts on several occasions,
and it has consistently upheld the guidelines. Although “this line of
authority by itself suggests that a lower court should be skeptical about
concluding that Blakely’s invalidation of a state-sentencing scheme
suddenly dooms” the guidelines, United States v. Koch, __ F.3d __, 2004
U.S. App. LEXIS 17640, 2004 Westlaw 1899930, at *3 (6th Cir. Aug. 26, 2004) (en
banc), we would certainly be at liberty to apply the rationale of Blakely and Apprendi to the guidelines
unless one of the Court’s guidelines cases directly controls the issue
presented to us. I believe Edwards v. United States, 523 U.S. 511, 140 L. Ed.
2d 703, 118 S. Ct. 1475 (1998), is that case. In Edwards, the Supreme Court
was presented with, and necessarily rejected, a Sixth Amendment (among other
issues) challenge to a sentencing enhancement based on judge-made factual
findings. See Koch, 2004 U.S. App. LEXIS 17640, 2004 Westlaw at **3-4; United
States v. Booker, 375 F.3d 508, 516-17 (7th Cir.) (Easterbrook, J., dissenting),
cert. granted, 159 L. Ed. 2d 838, 125 S. Ct. 11, 73 U.S.L.W. 3074 (U.S. Aug. 2,
2004). [*107] As the Sixth Circuit noted, Edwards
“gave the back of the hand to the kind of challenge raised here.”
Koch, 2004 U.S. App. LEXIS 17640, [WL] at *3. Although Edwards predates Apprendi and Blakely, the Court gave no
indication in either of those cases that Edwards is no longer valid.
Indeed, the Court in Apprendi explicitly reaffirmed Edwards. See Apprendi, 530 U.S. at 497 n.21
(“The Guidelines are, of course, not before the Court. We therefore
express no view on the subject beyond what this Court has already held. See,
e.g., Edwards v. United States”). * - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- * Regardless of whether the United States shares my view of Edwards, I believe that a
close reading of that case compels the conclusion that it is controlling. I
note that the United States Sentencing Commission, as amicus curiae in the
Booker and Fanfan cases now pending before the Supreme Court, recognizes the import
of Edwards. See Brief of United States Sentencing Commission at 25-26, United
States v. Booker ( No. 04-104 ) (“To conclude that factfinding under the
guidelines violates the Sixth Amendment, the Court would have to …
overrule or substantially limit Edwards”). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*108] In my opinion, because Edwards is controlling, the
reasoning of Blakely, at most, creates a conflict with Edwards that may only be
resolved by the Supreme Court. See Koch, 2004 U.S. App. LEXIS 17640, [WL] at
*4 (“The Court … has not given us the authority to ignore
Edwards”); Booker, 375 F.3d at 517 (Easterbrook, J. dissenting)
(“It is for [the Court], not us, to say that as a result of Blakely” Edwards is no longer valid).
Under these circumstances, our role as a court of appeals is simply to apply Edwards, and Edwards compels
the conclusion that Hammoud’s argument must fail. It is unnecessary
for us to go further. For this reason, I concur in the result reached by the
majority in Part VII. DISSENTBY:
WIDENER; DIANA GRIBBON MOTZ; GREGORY DISSENT: WIDENER, Circuit Judge,
concurring and dissenting: I concur in the result and in all of the opinion of the court
except Part VII C, which commences on page 68 of the circulated slip opinion. I respectfully dissent to our recommending, in Part VII C, that
the district courts “announce, at the time of sentencing, a sentence
pursuant to … [18 U.S.C. § 3553(a),] treating the
Guidelines [*109] as advisory only.” This extraordinary recommendation from an intermediate to a more
inferior federal court will doubtless be treated as a direction by many, even
if not all, of the district courts in this circuit. As a practical matter, if the advisory-only sentence is lower than
the Guidelines sentence, an appeal will be guaranteed. More importantly, such an extraordinary variance as we recommend
from the usual rules of criminal procedure can only indicate to others a doubt,
which should not exist, as to the outcome of the principal question in this
case, the effect, if any, of Blakely on Guidelines sentencing. Blakely should
not, and does not, have an effect on our Guidelines sentencing. And, even if
the recommended advisory sentencing is discretionary, about which I have some
doubt, in my opinion, it is inadvisable. DIANA GRIBBON MOTZ, Circuit Judge, dissenting: The Supreme Court has spoken: When a sentencing
“system” permits a “judge [to] inflict[] punishment
that the jury’s verdict alone does not allow” it violates a
defendant’s Sixth Amendment right to trial by jury. Blakely v.
Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531, 2537, 2540 (2004). [*110] In this case, the United States Sentencing Guidelines
permitted the district judge to inflict punishment on Mohammed Y. Hammoud
thirty times greater than that allowed by the jury verdict alone. Blakely makes
clear that such a sentence violates the Sixth Amendment; the majority can reach
a contrary conclusion only by resolutely refusing to follow Blakely.
Accordingly, although I join the majority in affirming Hammoud’s
convictions, I cannot join in its affirmance of this unconstitutional sentence. I. The maximum sentence that the district judge could have imposed in
this case, had he not made any additional factual findings, was 57 months. n1
The United States Sentencing Guidelines (the “Guidelines” or
“federal guidelines”), however, directed the judge to make
additional findings. The Guidelines further required the judge to increase
Hammoud’s sentence if the judge resolved, by a preponderance of the
evidence, certain facts in favor of the Government. Obedient to the Guidelines,
the judge made findings with respect to numerous facts that had never been
considered by the jury or proved beyond a reasonable doubt. On the basis of
these findings, the district judge sentenced Hammoud [*111] not to
57 months, but to 155 years. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n1 The Government expressly so concedes, explaining that
“stripped of any judge-found enhancing facts Hammoud faced a
guidelines sentencing range of 46-57 months” because “using
the proper Guidelines Manual (the 1998-99 edition), if all counts of conviction
are grouped together, the money laundering Guideline § 2S1.1 provides
the greatest offense level—23” and “coupled with a
Criminal History Category I, a level 23 yields a 46-57 month range.” Supplemental
Brief of the United States at 34 n.19, amended by Letter of July 28, 2004. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Some of these judicial findings had nothing to do with the
jury’s verdict. For example, the jury never considered the issue of
whether Hammoud had obstructed justice; in fact, none of the charges against
him related in any way to obstruction. Yet the district court increased
Hammoud’s offense level (which with his criminal history category
dictated his sentence range, see U.S. Sentencing Guidelines Manual (hereinafter
“U.S.S.G.”), Tbl.
[*112] Ch. 5, Pt. A)
because it found that he had done so. This required the court to make findings
with respect to three facts never even presented to the jury: that Hammoud
“when testifying under oath (1) gave false testimony; (2) concerning a
material matter; (3) with the willful intent to deceive (rather than as a
result of confusion, mistake, or faulty memory).” United States v.
Jones,
308 F.3d 425, 428 n.2 (4th Cir. 2002) (citing United States v. Dunnigan, 507 U.S. 87, 92-98, 122 L.
Ed. 2d 445, 113 S. Ct. 1111 (1993)). Other judicial findings, also mandated by the Guidelines, although
at least relating to the facts found by the jury, required the district judge
to increase Hammoud’s sentence to an extraordinary degree beyond that
permitted by the jury verdict alone. For example, the jury convicted Hammoud of
three counts, each involving illegal cigarette trafficking of at least 60,000
cigarettes, which correlates to a tax loss of roughly $ 6,700. See 18 U.S.C.
§ 2341, 2342 (2000). The Guidelines, however, required the judge to
determine by a preponderance of the evidence “the total tax loss
attributable to the offense” looking to “all conduct [*113] violating the tax laws … unless … clearly
unrelated.” U.S.S.G. § 2T1.1, cmt. n.2. When the judge
concluded that Hammoud had trafficked in many more cigarettes than his
conviction reflected, resulting in a tax loss of over $ 2,500,000, the
Guidelines required the judge to increase Hammoud’s offense level by
fourteen levels. See U.S.S.G. § 2E4.1, § 2T4.1. Similarly, the jury found only that Hammoud knowingly provided
material support to a foreign terrorist organization, 18 U.S.C. §
2339B(a)(1) (2000 & Supp. I); the jury never considered whether in doing so
Hammoud also acted with the specific intent to “influence the conduct
of government.” 18 U.S.C.A. § 2332b(g)(5) (West 2000 &
Supp. 2004). Yet, the Guidelines required the district judge to determine
whether Hammoud acted with this specific intent; and when the judge concluded
by a preponderance of evidence that Hammoud had, the Guidelines required the
judge to increase Hammoud’s offense level by twelve levels and to set
his criminal history category at VI. U.S.S.G. § 3A1.4 [*114] . Together, the judge’s tax-loss and terrorism findings
burdened Hammoud with an offense level and criminal history category so high
that the Guidelines instructed the district judge to impose a life sentence.
See U.S.S.G., Tbl. Ch. 5, Pt. A. In accord with United States v. Kinter, 235 F.3d 192,
199-200 (4th Cir. 2000), the district judge “reduced”
Hammoud’s sentence from the Guidelines range of life to
“only” 155 years—the total maximum sentence
authorized under the statutes governing the offenses for which Hammoud was
convicted. Of course, the district judge cannot be faulted. In sentencing
Hammoud, the judge simply followed the Guidelines and our holding that
Guidelines-mandated sentence increases, contingent on judicial findings,
survived the rule established in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.
2d 435, 120 S. Ct. 2348 (2000). In Apprendi, the Supreme Court
held that the Sixth Amendment requires that “other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Id. at 490. Soon thereafter, [*115] we held in Kinter that, without violating the Apprendi mandate, a judge may
follow the Guidelines and make factual findings that increase the maximum
sentence permitted by the jury verdict alone under the Guidelines, provided the
ultimate sentence does not exceed the maximum allowed in the statute
“criminalizing the offense.” Kinter, 235 F.3d at 200. The
district court precisely followed this instruction. A few months ago, however, the Supreme Court decided Blakely.
There the Court expressly rejected the Kinter view that the “statutory
maximum,” which could not be exceeded without violating Apprendi, was
the sentence authorized by the statute “criminalizing the
offense.” The Court instead held: “Our precedents make clear
… that the ’statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Blakely, 124 S. Ct. at 2537
(emphasis in original) (citing Ring v. Arizona, 536 U.S. 584, 602, 153 L. Ed.
2d 556, 122 S. Ct. 2428 (2003); Harris v. United States, 536 U.S. 545, 563, 153
L. Ed. 2d 524, 122 S. Ct. 2406 (2002)
[*116] (plurality opinion);
and Apprendi, 530 U.S. at 488). Blakely instructs that the Sixth Amendment
does not permit a “judge [to] inflict[] punishment that the
jury’s verdict alone does not allow.” 124 S. Ct. at 2537. n2
Moreover, in Blakely, the Supreme Court held that a jury’s verdict
alone does not allow the imposition of the highest sentence permitted under the
statute criminalizing the offense when separate sentencing guidelines mandate a
lesser maximum sentence. Id. at 2537-38. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n2 In Blakely, the judge-found facts increased the
defendant’s sentence by 70 — from 53 to 90 months. Id. at 2540. Here, the
judge-found facts increased Hammoud’s sentence by more than 3000
— from 57 to 1860 months. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Thus, the Supreme Court’s decision in Blakely “makes
clear,” 124 S. Ct. at 2537, that in Kinter we misinterpreted the term
“statutory maximum” as used in Apprendi, and that the
findings made by the district judge pursuant to the Guidelines, [*117] which increased Hammoud’s sentence beyond that
permitted by “the jury verdict alone,” violated the Sixth
Amendment. II. The majority holds to the contrary by exempting the federal
guidelines from the Blakely rule. In doing so, the majority acknowledges that,
given the language of the Blakely holding, it is “not that far-fetched
to conclude that the Court intended to encompass within its holding any
situation in which a binding maximum — whether statutory or not
— is increased by virtue of a judicial finding.” Ante at 58-59. But,
according to the majority, that constitutes an “incorrect reading of
Blakely.” Id. at 66. The majority maintains that Blakely must be
“understood,” see id. at 60, 61, 66, to hold only that the
Sixth Amendment prevents judicial factfinding that increases a
“defendant’s sentence beyond what the legislature has
authorized as the consequence of a conviction or guilty plea.” Ante at 68 (emphasis in
original). The majority’s “understanding” of Blakely
actually constitutes a complete misunderstanding of the case. A. First, the majority’s “understanding”
conflicts with both the actual holding and rationale of Blakely [*118] . As an intermediate appellate court, we have no license to
develop an “understanding” of Supreme Court precedent at odds
with the Supreme Court’s own language and reasoning. Rather, we must
follow Blakely as written, not as we would like it to have been written or as we
“understand” it to have been written. As written, Blakely instructs: Our precedents make clear … that the
“statutory maximum” for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant. In other words, the relevant
“statutory maximum” is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may impose without
any additional findings. When a judge inflicts punishment that the
jury’s verdict alone does not allow, the jury has not found all the
facts which the law makes essential to the punishment, and the judge exceeds
his proper authority. n3 124 S. Ct. at 2537 (internal quotation marks and citations
omitted). This language means exactly what it says: All defendants must be
sentenced “solely on the basis of the facts reflected in the [*119] jury verdict.” Id. The Supreme
Court’s express directive leaves no room for the majority’s
“understanding” of Blakely. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n3 The majority characterizes this language — the Blakely holding — as
the “culprit” that had led other courts to conclude that the Blakely rule applies to the
federal guidelines. Ante at 58. The majority’s word choice is odd
— and revealing. A “culprit” is “one
accused of … a crime” or “fault” or
“guilty of a crime” or “fault.”
Webster’s Third New International Dictionary 552 (1993). By choosing
to characterize this language as a “culprit,” the majority
clearly signals its distaste for the Blakely holding. The majority apparently
has forgotten that dislike of, or disagreement with, a Supreme Court holding
does not provide a lower court with a basis for refusing to follow the holding. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Nor does the Court’s rationale permit the approach
adopted by the majority. The Blakely Court rejected the very argument the
Government poses here — that although the sentence imposed [*120] on the defendant exceeded the Guidelines’
“standard range” maximum (i.e., the maximum absent additional
judicial findings), “there was no Apprendi violation”
because the sentence did not exceed the maximum allowed in the statute
criminalizing the offense. Id. at 2535-38. The Court held that
“the ’statutory maximum’ for Apprendi purposes” is
the “standard range” maximum (i.e., 53 months) because that
sentence — not the maximum sentence authorized in the statute
“criminalizing the offense,” Kinter, 235 F.3d at 200
— is the highest sentence that a judge could impose “solely
on the basis of the facts admitted in the guilty plea.” Blakely, 124 S. Ct. at 2537.
If the sentencing judge had imposed a sentence greater than 53 months without
additional judicial fact-finding, “he would have been
reversed.” Id. at 2538. Hence, Blakely had an enforceable
“legal right to” application of the maximum standard range
sentence — it was his maximum sentence for “Apprendi
purposes.” Id. at 2537, 2540 (emphasis in original). This rationale compels the conclusion that Hammoud’s
standard range maximum sentence under the federal sentencing [*121] guidelines (rather than the sentence set forth in the
statutes criminalizing his offenses) constitutes his maximum sentence for
Apprendi purposes. Hammoud’s standard range maximum Guidelines
sentence was 57 months; as the Government concedes, that is the highest
sentence the district court could have imposed on Hammoud solely on the basis
of the facts reflected in the jury verdict. Hammoud, like Blakely, had an
enforceable legal right to that standard range maximum. For, as in Blakely, if
the judge had imposed a sentence greater than this standard range maximum
without additional judicial fact-findings, the judge “would have been
reversed.” 124 S. Ct. at 2538; see also, e.g., United States v.
Sayles, 296 F.3d 219, 227 (4th Cir. 2002); United States v. Pineiro, 377 F.3d
464, 2004 WL 1543170, at *6 (5th Cir. 2004) (conceding that “like the
judge who disregards the Washington sentencing rules, a federal judge who
disregards the Guidelines does so on pain of reversal”); Kinter, 235
F.3d at 200 (acknowledging that if the district court had “disregarded
the maximum” Guideline standard range, “we would have [*122] been required to vacate” the sentence). Thus, both the holding and rationale of Blakely mandate that any
sentence that exceeds “the maximum sentence [the] judge [could] impose
solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant” violates the Sixth Amendment. Blakely, 124 S. Ct. at 2537.
Hammoud’s 155-year sentence clearly exceeds the 57-month maximum
sentence the district judge could have imposed solely on the basis of the jury
verdict; ergo, it is unconstitutional. The majority’s contrary
“understanding” of Blakely simply misreads the
case. B. Moreover, this “understanding” rests on the most
tenuous of foundations — a single fact given no significance by the
Supreme Court itself — i.e., that the Blakely guidelines were entirely
set forth in a statute and the federal guidelines are not. The majority
elevates this lone fact, never relied on and barely mentioned by the Blakely
Court, into the dispositive linchpin of the Court’s analysis,
maintaining that because of it, the Blakely rule does not apply to the federal
guidelines. In doing so, the majority wishfully grabs at a straw, rather than [*123] engaging in the “close examination of
Blakely,” which it acknowledges is the proper focus. Ante at 50. “Close examination” of Blakely quickly reveals that
the Supreme Court never relied on the majority’s assertedly
dispositive fact. The Blakely Court notes the statutory origin of the
Washington state guidelines only once — at the outset of its opinion
when recounting the background of the case. Blakely, 124 S. Ct. at 2535.
The remainder of the opinion, containing the Court’s extended reasoning,
never again refers to this fact, let alone suggests that it is determinative.
See id. at 2536-43. On the contrary, the Blakely Court vigorously, almost
self-consciously, rejects the very idea to which the majority clings: that
importance attaches to whether or not a maximum sentence is set forth in a
statute. The Court initially places the phrase “statutory
maximum” in quotation marks — indicating that the phrase
constitutes a term of art, subject to special definition. Id. at 2537. The Court
then proceeds to provide that definition, a definition that does not contain
any reference to the origin (statutory or not) of the maximum sentence. [*124] Rather, under this definition, which the Court tells us its
“precedents make clear,” the “’statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” Id. Furthermore, time and again throughout its analysis, the Blakely Court employs
language that reflects its total indifference to whether or not the
“statutory maximum” for “Apprendi purposes”
is actually embodied in a statute. See, e.g., id. at 2537 (referring
to the “maximum [the judge] could have imposed under state
law” when describing the facts in Ring and Apprendi) (emphasis added);
id.
at 2538 (observing that neither McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d
67, 106 S. Ct. 2411 (1986), nor Williams v. New York, 337 U.S. 241, 93 L. Ed.
1337, 69 S. Ct. 1079 (1949), “involved a sentence greater than what
state law authorized”) (emphasis added); id. (concluding that
“because the State’s sentencing procedure did not comply with
the Sixth Amendment, petitioner’s sentence is invalid”)
(emphasis added); id. at 2540 (explaining how a sentencing [*125] “system” violates the Sixth Amendment)
(emphasis added); id. at 2543 (noting that Blakely “was sentenced to
prison for more than three years beyond what the law allowed”)
(emphasis added). The majority must ignore all of this language in order to hold
that a single fact, regarded as inconsequential by the Blakely Court,
constitutionally distinguishes that case from the one at hand. This is precisely the sort of emphasis on “form”
rather than “effect” that the Supreme Court has repeatedly
held improper in determining the scope of Sixth Amendment jury-trial rights.
See Ring, 536 U.S. at 602 (“The dispositive question …
‘is one not of form, but of effect.’” (quoting Apprendi, 530 U.S. at 494).
For, although the federal guidelines (promulgated as they are by an
administrative agency) are not statutes, they are, as we recognized in Kinter
itself, “nearly indistinguishable from congressionally enacted
criminal statutes.” 235 F.3d at 200. The Guidelines have the force of
statutory law, Stinson v. United States, 508 U.S. 36, 45, 123 L. Ed.
2d 598, 113 S. Ct. 1913 (1993), and the maximum sentences contained in them
“are [*126] incorporated into the federal statutes
by 18 U.S.C. § 3553(b)” and “may not be exceeded by
sentencing judges.” Kinter, 235 F.3d at 200. The Sentencing Commission
remains “fully accountable to Congress, which can revoke or amend any
or all of the Guidelines as it sees fit … at any time.” Mistretta
v. United States, 488 U.S. 361,
393-94, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989); see also United States v.
Ameline,
376 F.3d 967, 977 (9th Cir. 2004) (listing instances in which
“Congress has utilized [its] authority to shape the Guidelines
directly”). As Judge Posner noted in holding for the Seventh Circuit
that the Blakely rule applies to the federal guidelines, “if a legislature
cannot evade … the commands of the Constitution by a multistage
sentencing scheme neither” can the Sentencing Commission, which is
simply “exercising power delegated to it by Congress.” United
States v. Booker, 375 F.3d 508, 511 (7th Cir. 2004), cert. granted, 159 L. Ed. 2d
838, 125 S. Ct. 11, 2004 U.S. LEXIS 4788, 73 U.S.L.W. 3073, 2004 WL 1713654
(Aug. 2, 2004). C. Most troubling, the majority’s
“understanding,” which interprets Blakely as applying
only [*127] to maximum sentences set forth in
statutes and not to those set forth in the federal guidelines, undermines the
very purpose of the Blakely holding. The Supreme Court explained in Blakely that the Apprendi principle
had to be applied to maximums set forth in sentencing guidelines to give
“intelligible content” to Sixth Amendment rights, creating a
“bright-line” rule. Blakely, 124 S. Ct. at 2538,
2540. Preservation of jury-trial rights as a “fundamental reservation
of power in our constitutional structure,” rather than a
“mere procedural formality,” required such a rule. Id. at 2538-39.
Otherwise, a legislature could eviscerate Sixth Amendment rights by choosing to
“label” a fact as a guidelines sentencing factor to be found
by a judge by a preponderance of evidence, rather than a crime or element of a
crime to be found by a jury beyond a reasonable doubt. Id. Yet the
majority’s holding, that maximum sentences set out in the federal
guidelines do not constitute “statutory maximums” for
“Apprendi purposes,” leaves Congress free to undercut Sixth
Amendment rights in the very manner Blakely sought to prohibit. Under the
majority’s holding,
[*128] Congress can choose
not to criminalize conduct yet still require the Sentencing Commission to
develop guidelines mandating punishment of that very conduct upon a judicial
finding by a mere preponderance of the evidence. The Blakely Court clearly recognized that the federal guidelines
presented this problem. Witness the Court’s discussion of whether
obstruction of justice should constitute a sentencing factor or a separate
crime. Citing the upward adjustment required upon a judicial finding of
obstruction of justice in the federal guidelines, U.S.S.G. § 3C1.1,
Justice O’Connor, in dissent, complained that the Blakely rule would
prevent consideration at sentencing of obstructive behavior not discoverable
before trial. See Blakely, 124 S. Ct. at 2546 (O’Connor, J.,
dissenting). In response, the Blakely majority suggested that perjury during
trial should be “an entirely separate offense to be found by a jury
beyond a reasonable doubt”; to treat it as a fact to be considered by
the sentencing judge would be “another example of conversion from
separate crime to sentence enhancement.” Id. at 2540 n.11. Yet,
in the case [*129] at hand, the majority sanctions exactly
this “conversion,” by affirming a sentence enhanced by a
judicial finding of obstruction of justice, in a case in which the jury never
considered any evidence as to obstruction. Affirmance of the obstruction enhancement, moreover, is neither
the most obvious nor most significant example in this case of the manner in
which the majority’s holding undermines Blakely’s stated
purpose of creating a bright-line rule safeguarding Sixth Amendment rights. For
in the case at hand, the federal guidelines also required the district judge to
determine if Hammoud acted with specific intent “to influence
… the conduct of government by intimidation,” 18 U.S.C.
§ 2332b(g)(5), and, if so, to apply a “terrorism
adjustment”—even though specific intent has long been
recognized as an element of a crime to be determined by a jury beyond a
reasonable doubt. See, e.g., Carter v. United States, 530 U.S. 255, 147 L. Ed.
2d 203, 120 S. Ct. 2159 (2000). The Guidelines-mandated application of the
terrorism adjustment and other judicial findings increased Hammoud’s
sentence beyond what would have been justified by the jury’s verdict
alone [*130] by more than 3000%. That the Sentencing Commission, not Congress itself, fashioned the
guideline that required this “conversion” plainly fails to
eliminate the Sixth Amendment problem targeted by the Supreme Court. Not only
is the Commission generally “fully accountable to Congress, which can
revoke or amend any or all of the Guidelines as it sees fit … at any
time,” Mistretta, 488 U.S. at 393-94, but in this instance
Congress expressly directed the Commission to promulgate a terrorism guideline,
with specific intent as an “appropriate enhancement.” See
Violent Crime Control Act, Pub.L. 103-322, Sept. 13, 1994, 108 Stat. 1796,
§ 120004 (directing the Commission “to amend its sentencing
guidelines to provide an appropriate enhancement for any felony … that
involves or is intended to promote international terrorism, unless such
involvement or intent is itself an element of the crime”). Thus, the
unconstitutional “conversion” of a crime to a sentencing
factor is as clearly the responsibility of Congress in the case at hand as it
was of the Washington legislature in Blakely. In sum, the majority adopts an “understanding”
of Blakely at odds with
[*131] the case’s
holding and rationale, based entirely on a single fact of no importance to the Blakely Court itself. This
“understanding” places form over effect, violating the
Supreme Court’s express mandate that “the dispositive
question … ‘is one not of form, but of
effect.’” Ring, 536 U.S. at 602 (quoting Apprendi, 530 U.S. at 494).
Most regrettably, this “understanding” undermines the very
purpose of the Blakely holding — the creation of a bright-line rule to
ensure protection of jury-trial rights. Instead of adopting this “understanding” of Blakely, we should follow Blakely as written. In short,
we should, as the Supreme Court directed, hold that the
“‘statutory maximum’ for Apprendi purposes is the
maximum a judge may impose solely on the basis of facts reflected in the jury
verdict”. Blakely, 124 S.C. at 2537. III. The majority seeks to justify its refusal to follow
Blakely’s clear directive by asserting that to do so would create two
problems. n4 The justification fails; these alleged problems are mere
makeweights. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n4 Unlike the majority, which recognizes the Blakely (and Apprendi) directive but argues
that it does not apply to the federal guidelines, Judge Wilkinson in
concurrence essentially argues that the Supreme Court got it wrong. He contends
that, “if the judiciary is now to announce that sentencing factors
must be found as elements beyond a reasonable doubt, that badly skews the
balance that Congress has historically been able to strike between guilt and
punishment,” and represents an encroachment of the judiciary on the
province of the legislature. Ante at 80. But treating “sentencing
factors” that mandate enhancement of a sentence as
“elements” is exactly what Blakely, Ring, and Apprendi hold
the Sixth Amendment requires: “All facts legally essential to the
punishment” must be proved to a jury beyond a reasonable doubt,
Blakely, 124 S.C. at 2537—whether they are labeled “elements
of the offense, sentencing factors, or Mary Jane.” Ring, 536 U.S. at 610
(Scalia, J. concurring); see also Ring, 536 U.S. at 602; Apprendi, 530 U.S. at 494
n.19. In the face of this controlling precedent, the concurrence’s
diatribe is surprising — and inappropriate. (Although the concurrence
offers a long, rhetoric-filled response to this footnote, ante at 83-4 n.1, it
still refuses to acknowledge that the Supreme Court has already rejected its
view that the legislature always controls what facts must be proved to a jury;
the Court has concluded that all facts essential to punishment, including those
denominated “sentencing factors” by the legislature, must be
proved to a jury “to give intelligible content to the right of jury
trial.” Blakely, 124 S. Ct. at 2538. The Court apparently determined that
this holding was not “antithetical to our democracy,” ante at 83, but required
by it, in order to accomplish the judiciary’s most important function:
protecting individual constitutional rights from legislative encroachment). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*132] A. First, the majority contends that following this directive would
mean that the Blakely Court did not, as it said it had,
“apply” the Apprendi rule, but instead broadened that rule by
“redefining” the term “statutory maximum”
to extend the term to non-statutory sentences. See ante at 59-60, 63, 66. The
majority’s contention, however, rests on an entirely false premise:
that the definition of “statutory maximum” set forth in
Blakely differs from the Court’s definition of that term in Apprendi. As the majority recognizes, the Blakely Court carefully explained
that it did not “redefine” the term “statutory
maximum,” but simply “applied” the Apprendi
understanding of that term. See Blakely, 124 S.C. at 2537. What the majority
refuses to recognize is that the Blakely Court also carefully explained that
the term “statutory maximum,” as it was used in Apprendi,
means “the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.”
Id.
Thus, immediately prior to stating this definition of “statutory maximum,”
the Blakely Court noted that the definition [*133] was the
one “made clear” by “our precedents,”
citing Apprendi and its progeny, Ring and Harris. Id. That the courts of appeals, including this one in Kinter, misinterpreted the
meaning of “statutory maximum” as used in Apprendi by
construing it too narrowly, of course, sheds no light on the correct
interpretation of the term in Apprendi. Rather, we must take the Supreme Court
at its word — that in Blakely it “applied” Apprendi, setting forth the
meaning of “statutory maximum” as that term was used in Apprendi. B. The majority’s other “problem” with
following Blakely as written is that doing so would assertedly “undermine”
or “outright nullify” Supreme Court decisions prior to
Blakely. See ante at 61-67. This is a powerful argument — if, but only
if, a prior Supreme Court decision directly controls the case at hand. When
that is so, of course, “Courts of Appeals should follow the [Supreme
Court] case which directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions.” Agostini v. Felton, 521
U.S. 203, 237, 138 L. Ed. 2d 391, 117 S. Ct. 1997 (1997) (internal quotation
marks and citation [*134] omitted). But, as the Government
expressly conceded at oral argument, there is no Supreme Court case
“directly controlling” the case at hand. Thus, as the
Government acknowledged, the Agostini rule does not apply here. n5 Tellingly,
in Kinter, this court took the same view. We did not suggest that holding
that “statutory maximum” for Apprendi purposes included
Guidelines’ maximums would “undermine” or
“outright nullify” Supreme Court precedent; instead, we
characterized the issue as “complex” and recognized
“at least a colorable argument that the Sentencing Guidelines do
provide [the relevant] maximum.” See Kinter, 235 F.3d at 200-201. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n5 The Government’s concession that the Agostini rule does not apply
here accords with the fine amicus brief the United States filed on behalf of
the State in Blakely. There, the Government did not even imply that prior
Supreme Court precedent precluded application of the Apprendi rule to the federal
guidelines. On the contrary, the Government warned that “[a] decision
in favor of [Blakely] could … raise a serious question about whether Apprendi applies to myriad
factual determinations under the Guidelines.” Brief for the United
States as Amicus Curiae, No. 02-1632, 2004 WL 177025, at *26. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*135] The majority carefully avoids citation of Agostini (perhaps hoping to
escape reminder of the Government’s express concession and our
rationale in Kinter) but nonetheless seeks to apply the Agostini rule and treat prior
Supreme Court cases as squarely presenting (and resolving) the Sixth Amendment
question at issue here. Prior Supreme Court precedent, however, simply does not
reach the constitutional issue presented here. As every other court of appeals
to have considered the question has held, the Supreme Court cases relied on by
the majority “do not discuss the Sixth Amendment right to a jury
trial” and a holding that the “statutory maximum”
for “Apprendi purposes” includes Guidelines maximums
“would not directly ‘overrule’ any Supreme Court
holding.” Pineiro, 377 F.3d 464, 2004 WL 1543170, at *9; see
also Ameline, 376 F.3d at 977-78; Booker, 375 F.3d at 513-14. The fact is that the Supreme Court has never upheld the use of the
judicial fact-finding mandated by the federal guidelines in the face of a
direct Sixth Amendment challenge to that practice. Not one of the cases relied
on by the majority reaches that question. In [*136] Mistretta, the Court simply
held that the creation of the Sentencing Commission and federal guidelines did
not violate separation of powers and delegation principles; the Court did not
consider whether application of certain federal guidelines violated the Sixth
Amendment. 488 U.S. at 393-94. In United States v. Watts, the Court ruled only
that a Guidelines sentence withstood a Fifth Amendment Double Jeopardy
challenge. 519 U.S. 148,
157, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997). And, in Edwards v. United
States,
the Court expressly disclaimed consideration of any constitutional claims. 523 U.S. 511, 140 L. Ed.
2d 703, 118 S. Ct. 1475 (1998); id. at 516 (noting that we “need not,
and we do not, consider the merits of petitioners’ …
constitutional claims”). n6 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n6 Moreover, the petitioners in Edwards did not raise a Sixth
Amendment challenge to sentencing factors grounded in judicial findings under
the Guidelines; they argued only that the sentencing judge’s selection
of the relevant maximum under the statutes at issue violated the Sixth
Amendment. See Ameline, 376 F.3d at 978 (characterizing Edwards in the same way); Booker, 375 F.3d at 514
(observing that “the petitioners in Edwards did not argue that
the sentencing guidelines are unconstitutional” and concluding that
“the most that can be dug out of their briefs … is that they
were urging a statutory interpretation that would avoid a Sixth Amendment
issue”) (emphasis in original). Accordingly, it is hardly surprising
that, notwithstanding the majority’s reliance on Edwards, we did not cite the
case in Kinter, let alone suggest, as the majority now does, that Edwards answered
the question of whether the Apprendi rule applies to the Guidelines. Nor did
the Government, which now also heavily leans on Edwards, even mention the case
in its amicus brief in Blakely. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*137] In refusing to follow Blakely’s plain language,
purportedly because to do so would “undermine” or
“outright nullify” prior Supreme Court precedent, the
majority does not just misapply the Agostini rule. It also avoids
our constitutional duty to decide properly presented claims in accord with
current Supreme Court instruction. As Judge Bork explained, even if lower
courts believe, as the majority apparently does, that “more recent
decisions” of the Supreme Court “create discontinuities with
older precedent,” lower courts must discern and apply the law as it
presently exists and “leave” the “resolution of such
discontinuities, if such there be” to the Supreme Court. Haitian
Refugee Center v. Gracey, 257 U.S. App. D.C. 367, 809 F.2d 794, 798 (D.C. Cir.
1987) (Opinion of Bork, J.). IV. The majority offers no legitimate reason for refusing to apply the
Supreme Court’s instruction — “that the
‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant.” 124 S.C. at 2537
(emphasis in original). The Supreme Court has held [*138] that the
Sixth Amendment affords “every defendant … the right to
insist that the prosecutor prove to a jury all facts legally essential to the
punishment.” Id. at 2543 (first emphasis added). Neither the Supreme
Court, nor the Constitution, permits us to deny this right to defendants
prosecuted by the federal government. The majority’s holding does
precisely that. Accordingly, I must respectfully dissent. Judge Michael and Judge Gregory join in this dissent. GREGORY, Circuit Judge, dissenting: I join in full Judge Motz’s fine dissenting opinion on
the Blakely issues. I write separately, however, to dissent from the
judgment. I believe the majority incorrectly concludes that AEDPA’s
“material support” provision, 18 U.S.C. § 2339B, is
constitutional as applied in this case. As the Ninth Circuit has held, a strict
textual reading of § 2339B(a)(1)’s plain language raises
serious due process concerns. See Humanitarian Law Project v. United States
DOJ,
352 F.3d 382, 396 (9th Cir. 2003) (hereinafter “Humanitarian Law
Project III”) (“We believe that serious due process
concerns would be raised were we
[*139] to accept the
argument that a person who acts without knowledge of critical information about
a designated organization presumably acts consistently with the intent and
conduct of that designated organization.”). n1 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n1 The Ninth Circuit and most other courts citing the Humanitarian
Law Project cases use these Roman numeral designations, referring to the
original district court case, Humanitarian Law Project v. Reno, 9 F. Supp. 2d 1176
(C.D. Cal. 1998), as “Humanitarian Law Project I”. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Unlike the Ninth Circuit, however, I do not believe that these
constitutional infirmities can be cured by reading the statutory term
“knowingly” as a scienter requirement meaning only that the
defendant had knowledge of the organization’s designation as a foreign
terrorist organization (“FTO”), or that he or she knew of the
organization’s unlawful activities that caused it to be so designated.
n2 See id. at 400. But cf. Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th
Cir. 2000) (“Humanitarian
[*140] Law Project II”) (Kozinski,
J.) (stating “the term ‘knowingly’ modifies the verb
‘provides,’ meaning that the only scienter requirement here
is that the accused violator have knowledge of the fact that he has provided
something, not knowledge of the fact that what is provided in fact constitutes
material support”). Instead, I would follow the reasoning of United
States v. Al-Arian, 308 F. Supp. 2d 1322 (M.D. Fla. 2004), and conclude that to save
the statute, one must apply the mens rea requirement to the entire
“material support” provision such that the government must
prove that the defendant (1) knew the organization was a FTO or knew of the organization’s
unlawful activities that caused it to be so designated and (2) knew what he or
she was providing was “material support,” i.e., the
government must show that the defendant had a specific intent that the support
would further the FTO’s illegal activities. Because Hammoud was
convicted of “material support” without the proper scienter
requirement, violating his constitutional rights under the First and Fifth
Amendments, I would hold that these constitutional violations constitute plain
error and thus vacate [*141] his material support conviction. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n2 It is interesting to note that during the writing of this
dissent, the Ninth Circuit agreed to hear Humanitarian Law Project III en banc and has thus
vacated the three-judge panel opinion. See Humanitarian Law Project v. U.S.
Dep’t of Justice, No. 02-55082, 382 F.3d 1154, 2004 U.S. App. LEXIS 18933
(9th Cir. Sept. 8, 2004). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - I. Hammoud and his Amici Curiae, the Center for Constitutional
Rights, the National Coalition to Protect Political Freedom, the National
Association of Criminal Defense Lawyers, and the National Lawyers Guild, raise
a bevy of constitutional challenges to Hammoud’s conviction under 18
U.S.C. § 2339B, including assertions that the “material
support” provision is vague and overbroad in violation of the First
Amendment, and that the statute violates the First and Sixth Amendments because
the defendant cannot challenge the FTO designation. Moreover, Hammoud and Amici
Curiae challenge Hammoud’s conviction on the basis that [*142] the statute lacks a specific intent requirement, which they
contend is essential to avoid “guilt by association” in
violation of the First and Fifth Amendments. A. To be sure, Hammoud faces a most difficult burden in this case
because he failed to raise his constitutional claims at trial. Accordingly, we
review his claims for plain error. United States v. Higgs, 353 F.3d 281, 324
(4th Cir. 2003) (reviewing constitutional claim not raised below for plain
error); United States v. Ferguson, 211 F.3d 878, 886 (5th Cir. 2000) (reviewing
allegation of constitutional violation for plain error because defendant failed
to raise the issue below). But cf. United States v. Osborne, 345 F.3d 281, 284
n.2 (4th Cir. 2003) (noting that the Tenth Circuit applies the plain error rule
“less rigidly” when reviewing constitutional issues) (citing United
States v. Ciapponi, 77 F.3d 1247, 1249-50 (10th Cir. 1996)). n3 To satisfy this
standard, Hammoud must show that (1) an error occurred, (2) the error was
plain, (3) and the error affected his substantial rights. United States v.
Olano,
507 U.S. 725, 731-34,
123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993); [*143] accord Johnson
v. United States, 520 U.S. 461,
467, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997). If the first three elements are
met, we may exercise our discretion to correct such forfeited error only where
it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Olano, 507 U.S. at 732 (internal quotation marks
and citations omitted); see also Fed. R. Crim. P. 52(b) (2002) (“A
plain error or defect that affects substantial rights may be considered even
though it was not brought to the court’s attention.”). When
“overwhelming and essentially uncontroverted” evidence exists
to support the challenged finding, there is “no basis for concluding
that the error seriously affected the fairness, integrity or public reputation
of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 633, 152 L.
Ed. 2d 860, 122 S. Ct. 1781 (2002) (internal quotation marks and citations
omitted). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n3 Furthermore, the Ninth Circuit has held that it may, in its
“discretion, resolve a pure issue of law raised for the first time on
appeal … when ‘injustice might otherwise
result.’” Humanitarian Law Project III, 352 F.3d at 394
(quoting Singleton v. Wulff, 428 U.S. 106, 121, 49 L. Ed. 2d 826, 96 S. Ct.
2868 (1976)). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*144] B. In 8 U.S.C. § 1189(a), Congress authorized the Secretary
of State (hereinafter the “Secretary”) to designate an
organization as a “foreign terrorist organization.” To
exercise this authority, the Secretary must find the organization (1) is
foreign, (2) engages in terrorist activity, and (3) such activity threatens the
security of United States nationals or the national security of the United
States. Id. § 1189(a)(1). n4 In determining whether to designate an
organization as a FTO, the Secretary is not required to notify the organization
being considered for designation. Moreover, the organization does not have a
right to be heard during the designation process.n5 Instead, the Secretary
compiles an “administrative record” in which
“findings” are made as to whether an organization is to be
designated. Id. §§ 1189(a)(2)(A)(i), (3)(A). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n4 “Terrorist activity” is defined in 8 U.S.C.
§ 1182(a)(3)(B), and “national security” is defined
in § 1189(c)(2), although those definitions are not at issue in this
case. n5 In Nat’l Council of Resistance of Iran v.
Dep’t of State, 346 U.S. App. D.C. 131, 251 F.3d 192, 208 (D.C. Cir.
2001), the D.C. Circuit held that these provisions violated the Fifth
Amendment’s due process requirement, and thus held that the entities
under consideration have a due process right to “notice that the
designation is pending.” However, the court also crafted an exception
in instances where “notification would impinge upon the security and
other foreign policy goals of the United States.” Id. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*145] If an organization is so designated, the consequences are
“dire.” Nat’l Council of Resistance of Iran, 251 F.3d at 196. Its
members and representatives may not enter the United States, 8 U.S.C.
§ 1182(a)(3)(B)(i), its assets may be frozen by the Department of
Treasury, id. § 1189(a)(2)(C), and financial institutions are
required to freeze its assets, 18 U.S.C. § 2339B(a)(2). Moreover, as
is at issue here, § 2339B makes it a crime punishable by a maximum of
life imprisonment if a person “knowingly provides material support or
resources” to such an organization. Id. §
2339B(a)(1). “Material support or resources” includes
“currency or monetary instruments, financial securities, financial
services, lodging, training, expert advice or assistance, safehouses, false
documentation or identification, communications equipment, facilities, weapons,
lethal substances, explosives, personnel, transportation, and other physical
assets, except medicine and religious materials.” Id. §§
2339A(b), 2339B(g)(4). n6 The statute does not define what those terms mean in
the context of the proscribed activity. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n6 The Patriot Act modified this definition, but that revision is
not at issue here. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*146] A designated organization may seek review of the
Secretary’s designation, but may only do so in the Court of Appeals
for the District of Columbia. Id. § 1189(b)(1). The District of
Columbia Circuit’s review is “based solely upon the
administrative record,” but the government may submit classified
information for in camera review. Id. § 1189(b)(2). Moreover, the
Secretary’s designation may only be set aside if it is arbitrary or
capricious, or otherwise contrary to law. Id. Finally, §
1189(a)(8) expressly states that a defendant may not contest the validity of
the organization’s designation as a defense or objection at trial. In both October of 1997 and October of 1999, the Secretary
designated Hizballah as a FTO. 64 Fed. Reg. 55,112 (1999); 62 Fed. Reg. 52,650
(1997). Neither the record nor case law indicates that Hizballah has ever
challenged the validity of this designation. In the instant case, Count 72 of the Second Superceding Indictment
alleged that Hammoud engaged in a conspiracy to provide “material
support” to Hizballah and that its objective was to furnish the FTO
“currency, financial services, training, false documentation [*147] and identification, communications equipment, explosives and
other physical assets to Hizballah and its operatives, in order to facilitate its
violent attacks.” J.A. 482 P 3. Hammoud was identified as a
fund-raiser, id. at 483 P 4(e), and Count 78 alleged that he provided material
support to Hizballah by transmitting $ 3,500 to Sheik Abbas Harake via Said
Harb, id. at 498 P 2. The jury convicted Hammoud on both counts. II. As noted above, Hammoud levies a series of interwoven n7 First and
Fifth Amendment challenges against AEDPA’s material support
provisions. Specifically, he alleges that the material support provision (1)
penalizes association; (2) is impermissibly vague; (3) is facially overbroad;
n8 and (4) violates due process and his Sixth Amendment right to a jury trial.
n9 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n7 Indeed, the freedom of association and vagueness arguments
necessarily blend with the Fifth Amendment claim regarding the
statute’s criminalization of conduct without the requisite
“personal guilt.” In short, the law lacks the sufficient
clarity that would allow persons of “ordinary intelligence a
reasonable opportunity to know what is prohibited.” Grayned v. City
of Rockford, 408 U.S. 104,
108, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). However, even if an individual
would reasonably understand that all support of a FTO is prohibited, when the statute
is applied without a specific intent requirement, a tension arises because the
statute criminalizes “support” of a FTO, though the
defendant’s conduct has no connection to “concededly criminal
activity,” thus violating the Fifth Amendment. [*148] n8 It is not necessary to discuss Hammoud’s overbreadth
challenge in any significant fashion because the overbreadth standard is a
exceedingly narrow exception to the normal rule regarding facial challenges.
See Virginia v. Hicks, 539
U.S. 113, 118, 156 L. Ed. 2d 148, 123 S. Ct. 2191 (2003). As such
“even where a statute at its margins infringes on protected
expression, ‘facial invalidation is inappropriate if the remainder of
the statute … covers a whole range of easily identifiable and
constitutionally proscribable … conduct.’” Osborne
v. Ohio, 495 U.S. 103, 112, 109 L. Ed. 2d 98, 110 S. Ct. 1691 (1995) (quoting New
York v. Ferber, 458 U.S. 747,
770 n.25, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982)). Here, because statutory
terms such as “weapons” and “explosives”
are clearly not overbroad, this substantiality showing is most difficult to
overcome. n9 Likewise, I do not discuss in detail the Sixth Amendment
argument raised with reference to the Secretary of State’s designation
provisions, because it lacks merit. In short, while the fact of the
Secretary’s designation is an element of the offense, the
designation’s validity is not. Cf. United States v. Bozarov, 974 F.2d 1037,
1045-46 (9th Cir. 1992) (because Secretary’s licensing designation was
not an element of the criminal charge, defendant’s inability to
challenge designation did not violate due process); United States v. Mandel, 914 F.2d 1215, 1221
(9th Cir. 1990) (holding under Export Administration Act, Secretary’s
decision to control a commodity “does not involve the defendant’s
individual rights and is not an element of the charged offense”). In United States v. Sattar, 272 F. Supp. 2d 348, 367 (S.D.N.Y.
2003), the court applied this reasoning to reject precisely the sort of
challenge Hammoud levies, stating “the correctness of the designation
itself is not an element of the offense and therefore the defendants’
right to due process is not violated by their inability to challenge the
factual correctness of that determination.” See also Al-Arian, 308 F. Supp. 2d at
1344-47 (rejecting the same). But see United States v. Rahmani, 209 F. Supp. 2d
1045, 1053-58 (C.D. Cal. 2002) (finding individual defendant had standing to
challenge an organization’s designation and that § 1189 is
unconstitutional). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*149] A. Hammoud and Amici Curiae argue that the “material
support” provision is unconstitutional because it penalizes
association, in violation of the First Amendment, and fails to require the
requisite specific intent, thus contravening the Fifth Amendment requirement of
“personal guilt.” They first frame these arguments by relying
on the unimpeachable, but basic and preliminary, proposition that the Constitution
protects individuals from being punished solely because of their association
with a group. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920, 73 L.
Ed. 2d 1215, 102 S. Ct. 3409 (1982) (holding that “liability may not
be imposed merely because an individual belonged to a group, some members of
which committed acts of violence”); Healy v. James, 408 U.S. 169, 186, 33 L.
Ed. 2d 266, 92 S. Ct. 2338 (1972) (holding that “guilt by
association” may not be imposed); Scales v. United States, 367 U.S. 203, 229, 6 L.
Ed. 2d 782, 81 S. Ct. 1469 (1961) (“If there were a [] blanket
prohibition of association with a group having both legal and illegal aims,
there would indeed be a real danger that legitimate political expression or
association would be impaired.”). The counter
[*150] argument to this
basic proposition, of course, is that § 2339B does not seek to impose
criminal liability for association or membership alone, but instead does so for
involvement in terrorism— i.e., “material support.”
In this vein, the government asserts that Hammoud’s arguments obscure
the gravamen of the offense of which he was convicted; specifically, it argues
that the overt act of providing $ 3,500 to Said Harb, which was passed on to
Sheik Abbas Harake, is distinguishable from association. n10 To advance its
argument, the government relies on a body of cases in which AEDPA’s
material support provision has been held distinguishable from a prohibition on
association. See People’s Mojahedin Org. of Iran v. Dep’t
of State, 356 U.S. App. D.C. 101, 327 F.3d 1238, 1244 (D.C. Cir. 2003)
(holding the material support provision does not violate rights of free speech
and association); Humanitarian Law Project II, 205 F.3d at 1133
(“[AEDPA] does not prohibit being a member of one of the designated
groups … . Plaintiffs are even free to praise the group for using
terrorism as a means of achieving their ends. What AEDPA prohibits is the
act [*151] of giving material support, and there
is no constitutional right to facilitate terrorism by giving terrorists the
weapons and explosives … . Nor, of course, is there a right to provide
resources with which terrorists can buy weapons and explosives.”); United
States v. Sattar, 272 F. Supp. 2d 348, 368 (S.D.N.Y. 2003) (rejecting
“associational rights” claim); United States v. Lindh, 212 F. Supp. 2d 541,
549 (E.D. Va. 2002) (same). n11 Typical of this line of cases in which pure
First Amendment challenges are at issue, in Humanitarian Law Project II, 205 F.3d at 1133-34,
the Ninth Circuit considered the constitutionality of AEDPA’s material
support provision. In doing so, the Ninth Circuit held that a
“specific intent” requirement, as in the communism cases,
should not apply to the provision of material support, because donating money
and resources to a designated group is different than being a mere member of,
or advocate for, the group in question. Id. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n10 Indeed, a pure First Amendment freedom of association argument
may be somewhat overstated because Hammoud’s prosecution did not rely
on mere association to the extent at issue in the communist cases; rather, the
indictment alleged that he “knowingly provided … material support
or resources to Hizballah … by causing Said Harb to transport $ 3,500
… to Sheik Abbas Harake.” J.A. 498. Nonetheless, as discussed
below, the statute does not avoid the “personal guilt”
infirmity. [*152] n11 Relatedly, in defending the statute from First Amendment
attack, the government asserts that AEDPA need only satisfy the intermediate
scrutiny standard of United States v. O’Brien, 391 U.S. 367, 376-77, 20
L. Ed. 2d 672, 88 S. Ct. 1673 (1968). See Humanitarian Law Project II, 205 F.3d at 1135
(holding that the material support restriction did not warrant strict scrutiny
“because it is not aimed at interfering with the expressive component
of their conduct but at stopping aid to terrorist groups”). Under O’Brien, the court must
determine whether: (1) the regulation is within the government’s
power; (2) it supports an important or substantial government interest; (3) the
regulation is unrelated to the suppression of speech; and (4) the restriction
on speech is no greater than necessary. 391 U.S. at 377. While, assuming
arguendo that intermediate scrutiny applies and AEDPA satisfies the first three
standards as the regulation is within the war and foreign policy powers, serves
an important interest in preventing terrorism, is arguably related to
suppressing certain conduct, not speech, the emphasis of our inquiry falls on
whether AEDPA is sufficiently well tailored to meet these end goals. I suggest
that it is not because the “material support”
provision’s vast sweep leads to a Fifth Amendment violation. Because I
believe such a result follows under O’Brien, I do not examine a strict
scrutiny challenge to the statute. I note, however, that the Amici make, at
least, a colorable argument that strict scrutiny applies. See Br. of Amici
Curiae at 11 n.2 (arguing AEDPA’s material support statute
“does not impose a content-neutral ban on conduct … but
instead punishes particular support only when done in association with specific
disfavored political groups… . The ‘material
support’ statute’s prohibition on designated groups is
analogous to a campaign finance law that restricted contributions only to
particular political parties selected by the incumbent government.”);
see also Al-Arian, 308 F. Supp. 2d at 1334-35 (recognizing that level of scrutiny
applied would depend on how broadly the court interpreted AEDPA; “the
broader this Court interprets [the statute], the more likely that the statute[]
receives a higher standard of review and [is] unconstitutional”). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*153] B. Here, however, Hammoud and Amici Curiae also advance a legally
independent — though somewhat interrelated to the First Amendment
argument — Fifth Amendment Claim, see Scales, 367 U.S. at 225
(analyzing Fifth Amendment claim “independently of the claim made
under the First Amendment”), which Humanitarian Law Project II and the
other cases noted above did not reach. Specifically, to pass Fifth Amendment
scrutiny and to avoid a “personal guilt” problem, they argue
that AEDPA’s material support provision must include a scienter requirement,
whereby the defendant must be found guilty of a specific intent to further the
illegal aims of the association. Br. of Appellant at 25; Br. of Amici Curiae at
6 (“This statute is so sweeping that it would apply to a citizen who
sent a human rights or constitutional law treatise to Hizballah to urge it to
respect human rights and desist from committing terrorist acts.”).
Hammoud and Amici Curiae rely on more Communist Party cases to support their
argument that AEDPA’s “material support” provision
is unconstitutional without such a specific intent requirement. See, e.g., United
States v. Robel, 389 U.S. 258,
264, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967) [*154]
(striking sections of statute that prohibited communists from
registering to engage in employment at defense facilities); Aptheker v.
Sec’y of State, 378
U.S. 500, 511, 12 L. Ed. 2d 992, 84 S. Ct. 1659 (1964) (striking down
statutory provisions that prohibited members of communist organization from
applying for or using a passport because statute did not require specific
intent to further the unlawful aims of the organization); Scales, 367 U.S. at 224-25
(stating that “in our jurisprudence guilt is personal” and
holding that punishment can only be justified by connecting “status or
conduct to other concededly criminal activity”). In such cases, the
Court held that statutory prohibitions “swept too widely and too
indiscriminately across the liberty guaranteed in the Fifth
Amendment,” Aptheker, 378 U.S. at 514, because the statutes
carried the “danger of punishing a member of a Communist organization
‘for his adherence to lawful and constitutionally protected purposes,
because of other and unprotected purposes which he does not
share.’” Id. at 512 (quoting Noto v. United States, 367 U.S. 290, 299-300, 6
L. Ed. 2d 836, 81 S. Ct. 1517 (1961) and citing [*155] Scales, 367 U.S. at
229-230). Hammoud and Amici Curiae assert that without a specific intent
requirement, AEDPA’s material support provision suffers the same fate.
In this context, Amici Curiae posit that Humanitarian II’s isolated
focus on the First Amendment renders the prohibition on guilt by association a
meaningless formality because under the Ninth Circuit’s reasoning: Every anti-Communist law struck down by the
Supreme Court for imposing guilt by association could have simply been
rewritten to penalize dues payments to the Party. It would also lead to the
anomalous result that while leaders of the NAACP could not be held responsible
for injuries sustained during an NAACP-led economic boycott absent proof of
specific intent, Claiborne Hardware, 458 U.S. at 920, the NAACP’s
thousands of individual donors could have been held liable without any showing
of specific intent. Amicus Br. at 8-9. As the Supreme Court has stated in the Fifth
Amendment context: In our jurisprudence guilt is personal, and
when the imposition of punishment on a status or on conduct can only be
justified by reference to that relationship [*156] of that
status or conduct to other concededly criminal activity …, that
relationship must be sufficiently substantial to satisfy the concept of
personal guilt in order to withstand attack under the Due Process Clause of the
Fifth Amendment. Scales, 367 U.S. at 224-25. Accordingly, Hammoud and Amici Curiae
argue that without a scienter requirement of specific intent, the necessary
connection to criminal activity is wanting. Nevertheless, the government argues, Br. of Gov’t at 22
n.9, that the Ninth Circuit’s most recent examination of the
“material support” provision within the Fifth Amendment
context in Humanitarian Law Project III assures that the necessary scienter
requirement is satisfied, thus preventing any Fifth Amendment violation. In Humanitarian
Law Project III, the Ninth Circuit considered a Fifth Amendment
“personal guilt” challenge to the “material
support” provisions, and correctly recognized that “serious
due process concerns” would be raised by § 2339B unless the
statute is applied with a scienter requirement. 352 F.3d at 393-94, 396-97.
Like in the Communist Party cases upon which Hammoud and Amici Curiae
rely, [*157] the Ninth Circuit stated that
AEDPA’s material support provision “presumes that a person
acts with guilty intent whenever that person provides material support to a
designated organization.” Id. at 396. The court further remarked,
“to attribute the intent to commit unlawful acts punishable by life
imprisonment to persons who acted with innocent intent—in this
context, without critical information about the relevant
organization—contravenes the Fifth Amendment’s requirement of
‘personal guilt.’” Id. at 397. However, to avoid the “serious due process concerns
[that] would be raised were we to accept the argument that a person who acts
without knowledge of critical information about a designated organization
presumably acts consistently with the intent and conduct of that designated
organization,” id., the Ninth Circuit followed the Supreme
Court’s guidance “that ‘a statute is to be construed
where fairly possible so as to avoid substantial constitutional
questions.‘” Id. (quoting United States v. X-Citement
Video, Inc., 513 U.S. 64,
69, 130 L. Ed. 2d 372, 115 S. Ct. 464 (1994)). Thus, in its efforts to apply
§ 2339B constitutionally, the
[*158] court adhered to
well-settled Supreme Court law that there is a presumption of construing
criminal statutes to include a mens rea requirement. Id. (citing cases). In
applying those principles, the Ninth Circuit determined, as a matter of
statutory interpretation, that § 2339B “does not in any way
suggest that Congress intended to impose strict liability on individuals who
donate ‘material support’ to designated
organizations.” Id. at 399. Accordingly, the Ninth Circuit read
the word “knowingly” as a limited specific intent
requirement, demanding “proof that a defendant knew of the
organization’s designation as a terrorist organization or proof that a
defendant knew of the unlawful activities that caused it to be so designated
… to convict a defendant under the statute.” Id. at 400; see also id.
at 402-03 (holding that to convict under § 2339B, “the
government must prove beyond a reasonable doubt that the donor had knowledge
that the organization was designated by the Secretary as a [FTO] or that the
donor had knowledge of the organization’s unlawful activities that
caused it to be so designated”). While the Ninth Circuit’s interpretation of
“knowingly”
[*159] is more advanced
than the quasi-strict liability standard upon which Hammoud was convicted, infra, I submit that such
an interpretation of § 2339B’s mental state requirement is
still insufficient to withstand constitutional attack. In finding as much, I am
in agreement with the recent and well reasoned opinion in United States v.
Al-Arian, 308 F. Supp. 2d 1322 (M.D. Fla. 2004), in which the court
considered defendants’ motion to dismiss an indictment alleging a
violation of AEDPA’s “material support” provisions. In Al-Arian, the court agreed with the Ninth Circuit that “a
purely grammatical reading of the plain language of Section 2339B(a)(1) makes
it unlawful for any person to knowingly furnish any item contained in the
material support categories” to a FTO, rendering the provision
constitutionally infirm. Id. at 1337 (citing Humanitarian II). The court, however,
disagreed with the Ninth Circuit’s attempt to salvage the statute
based on application of the statutory term “knowingly” in Humanitarian
III,
stating that the Ninth Circuit’s construction “only cures
some of the Fifth Amendment concerns.” Id. The Al-Arian court first
correctly [*160] recognized that the Ninth Circuit
failed to comply with the Supreme Court’s X-Citement Video holding wherein it
stated that a mens rea requirement “should apply to each of the
statutory elements that criminalize otherwise innocent conduct,” 513
U.S. at 72, because Humanitarian III applied the mens rea requirement only to
the FTO element, not the material support element. Al-Arian, 308 F. Supp. 2d at
1337. As such, the Al-Arian court found that under the Ninth
Circuit’s construction: [A] cab driver could be guilty for giving a
ride to a FTO member to the UN, if he knows that the person is a member of a
FTO … . Similarly, a hotel clerk in New York could be committing a
crime by providing lodging to that same FTO member under similar circumstances
as the cab driver. Id. at 1337-38. n12 Accordingly, the court rejected Humanitarian
III’s construction, stating that the Ninth Circuit did not resolve the
vagueness concerns. Id. at 1338. n13 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n12 Similarly, Amici Curiae properly recognize that the jury was
not instructed that it had to find Hammoud intended the donation to be used for
any violent, terrorist, or otherwise unlawful purpose, thus setting up the
anomalous result that under § 2339B “Hammoud would be guilty
even if it were stipulated that his support was intended to further only Hizballah’s
lawful activities … [while] an individual who gave a donation to a
non-designated group intending that it be used for terrorist activity would not
be guilty.” Br. of Amici Curiae at 6. [*161] n13 Even Humanitarian II seemed to acknowledge that the term
“knowingly” did not cure any vagueness problems that existed.
See 205 F.3d at 1138 n.5 (“The term ‘knowingly’
modifies the verb ‘provides’ meaning that the only scienter
requirement here is that the accused violator have knowledge of the fact that
he has provided something, not knowledge of the fact that what is provided in
fact constitutes material support.”). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Yet rather than declare § 2339B unconstitutionally vague,
the court applied a saving construction consistent with X-Citement Video, and applied the
statute in the manner Hammoud and Amici Curiae advocate. Id. at 1338-39. The
court stated: to convict a defendant under Section
2339B(a)(1) the government must prove beyond a reasonable doubt that the
defendant knew that (a) the organization was a FTO or had committed unlawful
activities that caused it to be so designated; and (b) what he was furnishing
was “material support.” To avoid Fifth Amendment personal
guilt problems … the government must show more than a defendant knew
something [*162] was within a category of
“material support” in order to meet (b). In order to meet
(b), the government must show that the defendant knew (had a specific intent)
that the support would further the illegal activities of a FTO. Id. at 1338-39 (emphasis added). n14 Indeed, I note that the
Al-Arian court’s interpretation of § 2339B’s intent
requirement, with which I fully agree, is supported by statements in the
Congressional Record by Senator Hatch, who cosponsored AEDPA. In introducing
the Senate Conference Report to the Senate, Senator Hatch remarked:
“This bill also includes provisions making it a crime to knowingly
provide material support to the terrorist functions of foreign groups
designated by a Presidential finding to be engaged in terrorist
activities.” 142 Cong. Rec. 7550 (April 16, 1996) (statement of Sen.
Hatch) (emphasis added). In discussing the law, Senator Hatch seemingly made
clear that the law’s prohibitions on financing were connected to
terrorist acts; he stated: Nothing in the Constitution provides the right
to engage in violence against fellow citizens or foreign nations. Aiding and
financing foreign terrorist bombings
[*163] is not
constitutionally protected activity… . I have to believe that honest
donors to any organization want to know if their contributions are We being
used for such scurrilous terrorist purposes. We are going to be able to tell
them after this bill… . I am convinced we have crafted a narrow
but effective designation provision which meets these obligations while
safeguarding the freedom to associate, which none of us would willingly give
up. Id. at 7557 (statement of Sen. Hatch) (emphasis added). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n14 Additionally, I note that even without the scienter
requirement which I advocate, various courts have struck aspects of the
“material support” provisions as void for vagueness. See Humanitarian
II,
205 F.3d at 1137 (holding that term “personnel” is void for
vagueness as the law is not “sufficiently clear so as to allow persons
of ‘ordinary intelligence’ a reasonable opportunity to know
what is prohibited”) (internal quotation marks omitted) (citing Grayned, 408 U.S. at 108);
id. at 1138 (holding the term “training” is also void for
vagueness, and stating “a plaintiff who wishes to instruct members of
a designated group on how to petition the United States” for
assistance could violate AEDPA); Humanitarian Law Project v. Ashcroft, 309 F. Supp. 2d
1185, 1199 (C.D. Cal. 2004) (holding “expert advice or assistance”
is impermissibly vague); Sattar, 272 F. Supp. 2d at 361 (holding
“personnel” and provision of “communications
equipment” were impermissibly vague); see also Humanitarian III, 352 F.3d at 403
(reiterating Humanitarian II holding that terms “personnel”
and “training” were impermissibly vague). But cf. Lindh, 212 F. Supp. 2d at
572-73 (holding term “personnel” was not overbroad). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*164] Furthermore, the Al-Arian court also recognized its conclusions
regarding § 2339B were consistent with the Seventh Circuit’s
treatment of the material support provisions in Boim v. Quranic Literacy
Institute & Holy Land Foundation for Relief and Development, 291 F.3d 1000 (7th
Cir. 2002), which addressed § 2339B in a related context. See Al-Arian, 308 F. Supp. 2d at
1339 n.33. In Boim, the Seventh Circuit considered whether a § 2339B
violation could serve as a basis for § 2333 civil liability. The
Seventh Circuit acknowledged that the statute contained
“tension” regarding a “definition of acts of
international terrorism … so broad that [defendants] might be held
liable for involvement in terrorist activity when all they intended was to
supply money to fund the legitimate, humanitarian mission of Hamas or other
organizations.” Boim, 291 F.3d at 1022. To resolve that tension
arising “when a group engages in both protected advocacy and
unprotected criminal acts,” the Seventh Circuit turned to Claiborne
Hardware, Scales and other Communist Party cases and held that to succeed
on a § 2333 claim, a plaintiff must [*165] prove
“‘that the group itself possessed unlawful goals and that the
individual held a specific intent to further those illegal
aims.’” Id. at 1022-23 (quoting Claiborne Hardware, 458 U.S. at 920).
Specifically, the Seventh Circuit reasoned that in the § 2333 context,
such a showing requires proof “that the defendants knew of [the
organization’s] illegal activities, that they desired to help those
activities succeed, and they engaged in some act of helping the illegal
activities.” Id. (citation omitted); see also id. at 1024 (stating that it
was “irrelevant” if the organization engaged in
“legitimate advocacy or humanitarian efforts … if
[defendants] knew about [the organization’s] illegal operations, and
intended to help [the organization] accomplish those illegal goals when they
contributed money to the organization”) (citing Claiborne Hardware, Scales and other cases). In
the instant case, the district court did nothing to insure that the jury was
instructed upon, and the government met, the proper scienter burden as
described above. n15 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n15 Finally, the Al-Arian court remarked that the
government’s scienter burden is not “that great in the
typical case.” 308 F. Supp. 2d at 1339. It suggested that the intent
can often be easily inferred by juries, e.g., “a jury could infer a
specific intent to further the illegal activities of a FTO when a defendant
knowingly provides weapons, explosives, or lethal substances to an organization
that he knows is a FTO because of the nature of the support.” Id. More
germane to the instant case, Al-Arian also suggested that “a jury
could infer a specific intent when a defendant knows that the organization
continues to commit illegal acts and the defendant provides funds to that
organization knowing that money is fungible and, once received, the donee can
use the funds for any purpose it chooses.” Id. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*166] For the foregoing reasons, I believe that §
2339B’s “material support” provisions constitute a
violation of the Fifth Amendment when applied without the necessary specific
intent requirement. Unlike the situation faced in Al-Arian, however, in
Hammoud’s case it is many days too late to apply a savings instruction
— or to preliminarily enjoin the government from applying the
“material support” provision as written, as in Humanitarian
Law Project III—therefore, I turn to the application and effect of the
constitutional error in this case. III. As noted above, to obtain relief on his claim, Hammoud must
satisfy the plain error standard, showing that (1) an error occurred, (2) the
error was plain, i.e., obvious or clear, (3) the error affected substantial
rights, and (4) the error seriously affected the fairness, integrity or public
reputation of judicial proceedings. Olano, 507 U.S. at 731-34. For the reasons
that follow, I would find that Hammoud satisfies Olano’s plain error
standard and he should be granted a new trial on the “material
support” charge. A. As discussed at length above, when § 2339B’s
“material support” provision is applied [*167] without a scienter requirement, as in this case,
constitutional error occurs. In Hammoud’s case, that error
materialized when the jury was instructed that they could convict Hammoud of
violating AEDPA’s material support provision without instructing them
of the necessary scienter requirement. On Count 78, the district court judge
instructed the jury that to convict Hammoud under 18 U.S.C. § 2339B,
“three essential elements” must be found. (1)
“[Hammoud] provided or attempted to provide material support or resources
to Hizballah, a designated foreign terrorist organization;” (2)
“[Hammoud] was within the United States or subject to the jurisdiction
of the United States;” and (3) “[Hammoud] did such act
knowingly… . You will recall the definition[] I previously gave you
for the term[] … knowingly.” J.A. 3391-92. Regarding
“knowingly,” the district court had previously charged the
jury with the instruction: “The term ‘knowingly’ as
used in these instructions to describe the alleged state of mind of the
defendant, means that he was conscious and aware of his action, realizing what
he was doing or what was happening around him, and did not [*168] act because of ignorance, mistake or accident.” Id.
at 3302. In short, the district court judge gave the jury no instructions
regarding a scienter requirement — whether in a manner akin to that
employed by the Ninth Circuit or the Middle District of Florida — for
AEDPA’s “material support provision.” While we
review an erroneous jury instruction in light of the entire charge, Jones v.
United States, 527 U.S. 373,
390-91, 144 L. Ed. 2d 370, 119 S. Ct. 2090 (1999), the district court in the
instant case erred by failing to provide appropriate guidance regarding a
specific intent requirement. B. In finding that the error was plain, I suggest that despite the
fact that Hammoud’s trial counsel did not properly serve up the Fifth
Amendment claim here at issue, the district court judge was well-aware of the
sweeping nature of the “material support” charge and the
inherent possibility that it would criminalize conduct without personal guilt.
At the charge conference, the government advocated that the court take the
Ninth Circuit’s approach in Humanitarian Law Project II. Citing that case,
the government stated, “you may find a violation even if the defendant
did not intend [*169] to aid in the organization’s
unlawful activities. The whole thing was just sending it to the orphans to
[sic] Hizballah.” J.A. 3256 (emphasis added). While the
prosecutor’s statement was clearly tongue-in-cheek, the impact of the
“material support” provision as applied had the effect which
the prosecutor suggested. Under the district court’s instructions,
Hammoud could have been convicted for helping assist Hizballah orphans or
humanitarian works if the organization had such projects. While the district
court declined to enter the quasi-strict liability instruction that the
government advocated, the judge told the prosecutor, “you can argue
that. I’m not going to quote anything from the Ninth Circuit until the
Fourth Circuit tells me okay.” Id. at 3256. Furthermore, the district court implicitly acknowledged the
existence of the constitutional infirmities challenged on appeal, yet it chose
to proceed with the scienter-less instruction nonetheless. In discussing
“material support,” the following colloquy took place between
the district court judge and the federal prosecutor: THE COURT: Material support. Define. Now
question: Is there any evidence or any question about [*170]
materiality or is anything that goes considered material support. [GOVERNMENT]: Except for medicine or religious materials. I
think that’s in the — THE COURT: I guess if you get a few bucks, is
that material support? Right out of the statute. [HAMMOUD’s COUNSEL]: You can throw bibles at them
but not money. THE COURT: Book of stamps and that’s
material. All right. Id. at 3257-58. Thus, the district court judge instructed the jury
without imposing a scienter requirement despite an implicit understanding that
the “material support” provision potentially criminalizes a
broad sweep of conduct which has no connection to “concededly criminal
activity,” and the fact that various aspects of the “material
support” provisions had already been held to violate the First
Amendment. See Humanitarian Law Project II, 205 F.3d at 1137-38 (holding terms
“training” and “personnel” in
AEDPA’s “material support” provision were
unconstitutionally vague). In demonstrating the plain nature of AEDPA’s
constitutional deficient mens rea requirement, perhaps it is best to compare
that statute to the Supreme Court’s treatment of the Protection of
Children [*171] Against Sexual Exploitation Act, 18
U.S.C. § 2252, which the Court held was unconstitutional when applied
without a scienter requirement in X-Citement Video, 513 U.S. at 68-72.
See Al-Arian, 308 F. Supp. 2d at 1335 (stating that in X-Citement Video, “the
Supreme Court faced almost the same statutory interpretation issues”
as those raised by AEDPA’s material support provision). In X-Citement
Video,
the Supreme Court interpreted a statutory provision which criminalized the
“knowing” transport, shipment, receipt, distribution or
production of a “visual depiction involving the use of a minor
engaging in sexually explicit conduct.” 513 U.S. at 68 (citing 18
U.S.C. § 2252) (internal quotation marks omitted). The Supreme Court
rejected the Ninth Circuit’s interpretation that the
“knowing” mens rea element applied only to the relevant
verbs, rather than to the facts that minors were involved and the material was
sexually explicit. See id. at 68-69. The Court held that the Ninth Circuit’s construction led
to absurd results under the First Amendment. See id. at 69. [*172] For example, “a retail druggist who returns an
uninspected roll of developed film to a customer ‘knowingly
distributes’ a visual depiction and would be criminally liable if it
were later discovered that the visual depiction contained images of children
engaged in sexually explicit conduct.” Id. In this manner, the
Ninth Circuit’s absurd construction of the statute in X-Citement
Video
is closely related to the absurd results, see supra at 130, which necessarily
follow from interpreting AEDPA’s “material support”
provisions without a scienter requirement. Thus, from the reasoning in X-Citement
Video,
see 513 U.S. at 70-77, it should have been apparent to the district court that
to avoid such absurd results in the AEDPA context the jury needed to be
instructed that the specific intent requirement had to be applied to each
element of the statute. For the end result of applying
“knowingly” as did the Ninth Circuit in Humanitarian Law
Project III “is to render a substantial portion of Section 2339B
unconstitutionally vague.” Al-Arian, 308 F. Supp. 2d at
1338. C. The failure to require the jury to find what should have been the
elements [*173] of the material support offense
affected Hammoud’s substantial rights. By not being instructed on a
scienter requirement, the jury was not presented an essential element of the
“material support” offense, and as the Third Circuit has
remarked, “the omission of an essential element of an offense [in a
jury instruction] ordinarily constitutes plain error” satisfying Olano. United States v.
Haywood, 363 F.3d 200, 207, 45 V.I. 800 (3d Cir. 2004) (internal quotation
marks and citation omitted). The Tenth Circuit has recognized: “A
plainly erroneous jury instruction affects a defendant’s
’substantial rights’ if the instruction concerns a principal
element of the defense or an element of the crime, thus suggesting that the
error affected the outcome of the case.” United States v. McSwain, 197 F.3d 472, 481
(10th Cir. 1999) (internal quotation marks and citation omitted); see also United
States v. Perez, 43 F.3d 1131, 1139 (7th Cir. 1994) (holding that erroneous jury instruction,
which failed to include a “precise description of the requisite
specific intent element,” was plain error affecting
defendant’s substantial rights such that conviction [*174] had to be reversed); cf. United States v. Wilkinson, 137 F.3d 214, 228
(4th Cir. 1998) (finding third prong of Olano satisfied where
district court failed to give the jury a conclusive instruction on element of
materiality). Indeed, such practice “is consistent with the Supreme
Court’s instruction that due process ‘requires proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which
[the defendant] is charged.’” Haywood, 363 F.3d at 207
(quoting In re Winship, 397
U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970)) (additional
quotation marks and citation omitted). Here, the plainly erroneous jury
instructions did not require the government to prove that Hammoud’s
purported “material support” for Hizballah went to further
the organization’s criminal conduct. As such, the convicted offense
falls well short of the “personal guilt” and connection to
“concededly criminal activity” which the Fifth Amendment requires.
Scales, 367 U.S. at 224-25. D. Turning to Olano’s requirement that the error seriously
affected the fairness, integrity or public reputation of judicial proceedings,
I note that [*175] when reviewing an erroneous jury
instruction for plain error, “the relevant inquiry … is
whether, in light of the evidence presented at trial, the failure to instruct
had a prejudicial impact on the jury’s deliberations, so that it
produced a miscarriage of justice.” Haywood, 363 F.3d at 207. As
the Seventh Circuit remarked in Perez, where the defendant carries his Olano burden of showing the
erroneous jury instruction affected his or her substantial rights,
“the gravity of such an error makes reversal the usual
outcome.” 43 F.3d at 1139 (citing United States v. Kerley, 838 F.2d 932, 939
(7th Cir. 1988)); see also United States v. Duran, 133 F.3d 1324, 1334
(10th Cir. 1998) (holding plain error in jury instruction that allowed a
conviction “where one important element may not have been found
against the defendant by such a standard cannot be overlooked,” and
remanding for a new trial) (citation omitted). The Seventh Circuit reasoned
that when a jury instruction is erroneous because it does not include the
requisite specific intent requirement, “the error affects the
integrity of the proceeding itself.” Perez, 43 F.3d at 1140 [*176] (citations omitted). Applying these principles in the instant case, I would find that
the error affected the fairness, reputation and integrity of the judicial
proceedings, thus we should vacate Hammoud’s “material
support” conviction and remand for a new trial. Had the district court
judge charged the jury with the scienter requirement, it is highly unlikely
that the jury could have convicted Hammoud based on the evidence offered at
trial. Indeed, at the jury charge conference, the district court judge examined
the language of Count 72 of the indictment, which alleged that Hammoud
“used his position as a leader … to foster support and raise
funds for violent Hizballah activity,” J.A. 482 P 4(a), and stated:
“There was no proof he raised funds for violent Hizballah activity. I
have a problem leaving that in when you don’t have any proof on that.
But it’s part of the indictment. I can’t just take it
out.” J.A. 3251 (emphasis added). Accordingly, it is clear that the
government failed to connect Hammoud to any terrorist activity on the part of
Hizballah, rather it merely associated him with Hizballah, a foreign terrorist
organization. n16 This is not a case
[*177] in which
“overwhelming and essentially uncontroverted” evidence exists
to support the conclusion that Hammoud supported Hizballah’s illegal,
terrorist activities, Cotton, 535 U.S. at 633, and in light of the lack of
such evidence I would find that Hammoud suffered prejudice. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n16 It is further worth noting that not only did the government fail
to connect Hammoud’s purported $ 3,500 donation to Sheik Abbas Harake
to any illegal purpose, or concededly criminal act, but the government could
barely connect the funds to Harake to any degree whatsoever. The government
admits that the only source of information indicating that Hammoud was sending
money to Hizballah was Said Harb. Harb was described throughout the trial as
untrustworthy, manipulative, a liar and an exaggerator. See, e.g., J.A. 1412,
1408, 2215, 2504. With reference to the alleged $ 3,500 in “material
support” provided to Hizballah, Harb testified that he had once
carried money to Harake for Hammoud. Id. at 2763. He testified that the money
he carried was in an envelope which Hammoud said had two checks totaling $
3,500. Id. at 2761-64. Harb testified that he spoke with Harake by
telephone while in Lebanon, but never met with him and did not deliver money to
him. J.A. 2764-66. Instead, Harb stated he “gave it [the envelope] to
my mom and, you know, told her to make sure it gets to [Hammoud’s]
mom.” Id. at 2765. Ostensibly, under the government’s theory,
Hammoud’s mother gave the money to Harake, although I have found no
testimony in the record completing this chain that allegedly stretched from
Hammoud to Harake. Indeed, Harb never explained how the money got to Harake,
nor did he state that he even spoke with Hammoud’s mother to make sure
she received the envelope, let alone spoke to Harake to assure that he received
the envelope from Hammoud’s mother. Despite these facts, the $ 3,500
transfer was the sole transaction offered by the government in support of Count
78 against Hammoud. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*178] IV. For these reasons, I would hold that the jury instruction upon
which Hammoud was convicted of providing material support to Hizballah violated
his Fifth Amendment rights, and Hammoud satisfied Olano’s “plain
error” standard, thus entitling him to a new trial. In recommending as
much, I do not seek to give comfort to terrorist organizations, or to diminish
the reality of clear and present threats posed by such groups. To the contrary,
I seek to uphold the Constitution in a manner that does not harken back to a
bleaker era of American history when characters were impugned, and individuals
indicted, convicted and punished based on little more than suspicion,
association and fear, without the “personal guilt” which is
the hallmark of our criminal justice system. In applying AEDPA’s
material support provisions with the requisite scienter requirement, we may
help insure that juries are not driven to findings of guilt by mere fear of the
unknown, but instead arrive at the just result only after interrogation of the
government’s case to determine whether criminal intent is present. I respectfully dissent. |