501 Fed.Appx. 56
This case was not selected for publication in the Federal
Reporter.
United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellee,
v.
Aafia SIDDIQUI, Defendant–Appellant.*
No. 10–3916–cr.
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Nov. 5, 2012.
|
As Amended Nov. 15, 2012.
Background:
Defendant was convicted in the United States District Court for the Southern
District of New York, Berman,
J., of attempted murder of United States nationals, attempted murder of United
States officers and employees, armed assault of United States officers and
employees, assault of United States officers and employees, and use of firearm
during crime of violence, and she appealed.
Holdings: The Court of Appeals held that:
[1]
admission of United States Army officers’ testimony regarding Afghan officials’
statements did not violate Confrontation Clause;
[2]
identity of defendant’s intended victims was not element of crimes;
[3]
refusal to alter defendant’s criminal history category was not subject to
appellate review;
[4]
district court had no obligation to provide notice to defense counsel that
recidivism was going to be predominant concern at sentencing;
[5]
district court did not improperly invade province of mental health
professionals when it commented on defendant’s likelihood of recidivism; and
[6]
any error in district court’s finding defendant’s conduct to be premeditated
was harmless.
Affirmed.
For additional opinion, see 699 F.3d 690.
West Headnotes (6)
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Criminal Law |
|
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Afghan officials’ statements to United
States Army officers that defendant was in possession of incendiary documents
at time of her arrest were not testimonial in nature, and thus admission of
officers’ testimony regarding those statements in defendant’s prosecution for
armed assault of United States officers and employees and related crimes did
not violate Confrontation Clause, where, when statements were made, defendant
had not yet fired upon American interview team, and statements were
introduced to explain United States’ interest in interviewing defendant, not
to prove truth of matter asserted. U.S.C.A.
Const.Amend. 6. |
|
|
Criminal Law |
|
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Identity of defendant’s intended victims
was not element of crimes of attempted murder of United States nationals and
attempted murder of United States officers and employees, and thus it was not
necessary that jury be unanimous as which United States employee or national
defendant intended to kill. 18 U.S.C.A. §§
1114, 2332. |
|
|
Criminal Law |
|
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District court did not misapprehend scope
of its authority to depart downwards from Sentencing Guidelines, and thus
court’s refusal to alter defendant’s criminal history category was not
subject to appellate review. |
|
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Sentencing and
Punishment |
|
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District court had no obligation to provide
notice to defense counsel that recidivism was going to be predominant concern
at sentencing. |
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Sentencing and
Punishment |
|
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District court did not improperly invade
province of mental health professionals at sentencing when it commented on
defendant’s likelihood of recidivism. |
|
|
Criminal Law |
|
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Any error in district court’s finding
defendant’s conduct to be premeditated was harmless in prosecution for
attempted murder of United States nationals, attempted murder of United
States officers and employees, armed assault of United States officers and
employees, assault of United States officers and employees, and use of
firearm during crime of violence, where, even without finding of
premeditation, defendant’s Guidelines range would have been life
imprisonment. |
*58 Appeal from the United States District Court for the
Southern District of New York (Berman,
J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the United States
District Court for the Southern District of New York be AFFIRMED.
Dawn M. Cardi
(Chad L. Edgar,
on the brief), Dawn M. Cardi & Associates, New York, NY, for Appellant.
Jenna M. Dabbs,
Jesse M. Furman,
Assistant United States Attorneys (Christopher L.
Lavigne, Assistant United States Attorney, on the brief), for Preet
Bharara, United States Attorney for the Southern District of New York, New
York, NY, for Appellee.
PRESENT: RICHARD C.
WESLEY, SUSAN L. CARNEY,
Circuit Judges, ROSLYNN R.
MAUSKOPF, District Judge.**
SUMMARY ORDER
**1 Appellant Aafia Siddiqui appeals from a judgment of the
United States District Court for the Southern District of New York (Berman, J.),
convicting her after a jury trial of numerous offenses and sentencing her
principally to 86 years’ imprisonment. In an accompanying published opinion, we
address five issues that Siddiqui raises on appeal. We address the remaining
issues herein. We assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for review.
Siddiqui contends that reversal is warranted because the
district court admitted testimonial hearsay in violation of Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),
and that the error was not harmless beyond a reasonable doubt. Her argument
follows several steps. She claims that the testimony of two United States Army
officers that they were informed by certain Afghan officials that Siddiqui was
in possession of incendiary documents at the time of her arrest violated Crawford.
Siddiqui argues that without this testimony, the government could not establish
that Siddiqui possessed the documents when she was arrested. And according to
Siddiqui, because the “real relevance” of the documents is that Siddiqui
possessed them in close proximity (in time) to the shooting incident, the documents
would have been excluded under Federal Rule of
Evidence 403 but for the officers’ testimony.
[1] Siddiqui’s Crawford
challenge stumbles at its first step. The Confrontation Clause bars only testimonial
hearsay used to establish the truth of the matter asserted. See United States v.
Paulino, 445 F.3d 211, 216–17 (2d Cir.2006). A testimonial statement
is “a solemn declaration or affirmation made for the purpose of establishing or
proving some fact.” Michigan v.
Bryant, ––– U.S. ––––, 131 S.Ct. 1143, 1153, 179 L.Ed.2d 93 (2011)
(internal quotation marks and brackets omitted). Typical testimonial statements
include affidavits, depositions, and grand jury testimony. See Crawford, 541 U.S. at
51–52, 124 S.Ct. 1354. The outer bounds of what constitutes a
testimonial statement remain unclear. But “the critical factor in identifying a
Confrontation Clause concern is the declarant’s awareness or expectation *59 that his or her statements may later
be used at trial.” United States v.
Farhane, 634 F.3d 127, 163 (2d Cir.2011) (internal quotation marks
omitted).
Here, we have little doubt that the Afghan officials had
no expectation or awareness that their statements regarding what documents were
found on Siddiqui when she was arrested would later be used at a trial. When
these statements were made, Siddiqui had not yet fired upon the American
interview team. The United States’ interest in Siddiqui was primarily military
in nature. This is underscored by the fact that the statements were conveyed to
American military personnel, not domestic law enforcement officers. As such,
there was no Crawford
violation. See Bryant, 131 S.Ct. at
1154.
**2 We note also that the government did not offer these
statements to prove the truth of the matter asserted, but rather to show their
effect on the listeners-in other words, to explain the United States’ interest
in interviewing Siddiqui. The district court gave a limiting instruction to
this effect. Even if, as Siddiqui appears to contend, allowing the testimony
was impermissible under hearsay rules, such an error would be harmless because
(1) there was other evidence that strongly suggested the documents were in
Siddiqui’s possession at the time of her arrest; and (2) as explained in the
accompanying published opinion, admission of the documents was harmless.
[2] Next, in an argument that she herself
characterizes as advancing a “novel theor[y],” Siddiqui Reply Br. 3, Siddiqui
contends that the district court committed reversible error in failing to give
an instruction to the jury requiring them to be unanimous as to the specific
identity of Siddiqui’s intended victims for the attempted murder counts. We
disagree.
The statutes at issue here prohibit the attempted killing
of “a national of the United States,” 18 U.S.C. § 2332,
and “any officer or employee of the United States while such officer or
employee is engaged in or on the account of the performance of official duties,”
18 U.S.C. § 1114.
Because the statutes do not specify the elements of “attempt to kill,” the
elements are those required for attempted murder at common law, which include
an intent to kill. See Braxton v.
United States, 500 U.S. 344, 351 n. *, 111 S.Ct. 1854, 114 L.Ed.2d 385
(1991).
Federal juries must be unanimous as to each element of an
offense. Richardson v.
United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999).
However, “a federal jury need not always decide unanimously which of several
possible sets of underlying brute facts make up a particular element.” Id.
“[F]or example, [where] an element of robbery is force or the threat of force,
some jurors might conclude that the defendant used a knife to create the
threat; others might conclude he used a gun. But that disagreement-a
disagreement about means-would not matter as long as all 12 jurors unanimously
concluded that the Government had proved the necessary related element, namely,
that the defendant had threatened force.” Id.
Courts have not developed a bright line test for distinguishing between an
element of a crime and a “brute fact.” Instead, they look to the statutory
language, tradition, and fairness concerns, such as the likelihood that
treating a fact as a means rather than an element would allow “wide
disagreement among the jurors about just what the defendant did, or did not, do”
and the risk that the jury may convict on bad reputation alone. Id. at 819, 119
S.Ct. 1707.
Here, the relevant statutory language-prohibiting the
attempted killing of “a national” *60
and “any officer or employee”—suggests that Congress did not intend that
the government had to prove that the defendant had a particular individual in
mind as an element of the crime. Cf. United States v.
Talbert, 501 F.3d 449, 451 (5th Cir.2007); United States v.
Verrecchia, 196 F.3d 294, 299 (1st Cir.1999). Viewing the
identity of the intended victim as a “brute fact” rather than as an element
does not implicate fairness concerns. It does not allow for wide juror
disagreement as to the defendant’s acts and does not create or aggravate the
risk that the jury would convict on bad reputation alone. See Richardson, 526 U.S. at
819, 119 S.Ct. 1707.
**3 Indeed, a contrary interpretation would lead to absurd
results. For instance, under Siddiqui’s interpretation of the statute, a
defendant who fired one shot at a group of United States employees or nationals
with the intent to indiscriminately kill one of them, but not an intent to kill
a particular individual, could not be convicted under the statutes. For these
reasons, we reject Siddiqui’s argument that the district court was required to
instruct the jury that they had to be unanimous as to which United States
employee or national Siddiqui intended to kill.
[3] The final three arguments that Siddiqui
advances concern sentencing. She contends that the district court erred by
refusing to “horizontally depart” in her criminal history category and thereby
to mitigate the effects of the terrorism enhancement on her sentence. We will
not review a district court’s refusal to alter a criminal history category
unless the court “misapprehended the scope of its authority to depart or the
sentence was otherwise illegal.” United States v.
Valdez, 426 F.3d 178, 184 (2d Cir.2005); see United States v.
Stinson, 465 F.3d 113, 114 (2d Cir.2006). Because there is nothing in
the record to suggest that the district court did not appreciate or understand
its authority to depart or that the sentence was otherwise illegal, we reject
Siddiqui’s argument.
[4] Next, in a somewhat unfocused argument,
Siddiqui contends that (1) “the district court erred procedurally by not
providing notice to defense counsel that recidivism was going to be a
predominant concern” at sentencing; and (2) the district court imposed a “substantively
unreasonable” sentence by finding that without treatment Siddiqui was likely to
be a recidivist, and thereby drew conclusions that were clearly the province of
mental health professionals. Siddiqui Reply Br. 49. Siddiqui’s claim of
procedural error predicated on lack of notice is without merit. Indeed, the
very Supreme Court case on which Siddiqui relies notes that “[g]arden variety
considerations of culpability, criminal history, likelihood of re-offense,
seriousness of the crime, nature of the conduct, and so forth should not
generally come as a surprise to trial lawyers who have prepared for sentencing.”
Irizarry v.
United States, 553 U.S. 708, 716, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008)
(internal quotation marks omitted) (emphasis added). In addition, and more
importantly, defense counsel, in their sentencing submission to the district
court, explicitly addressed the issue, writing: “We understand that the Court,
in light of our continued emphasis upon Dr. Siddiqui’s serious mental illness
and the role it played in her offense conduct, has to speculate as to Dr.
Siddiqui’s future dangerousness when addressing the issue as to what sentence
will protect the public from her.” JA 3095.
[5] Nor did the district court improperly
invade the province of mental health professionals when it commented on the
defendant’s likelihood of recidivism. Contrary to Siddiqui’s contentions, the
district *61 court’s comments here are
a far cry from the comments to which this Court took exception in United States v.
Cossey, 632 F.3d 82, 88 (2d Cir.2011), and United States v.
Dorvee, 616 F.3d 174, 183–84 (2d Cir.2010). Moreover, the district
court relied on other factors-such as the seriousness of the offense and the
need for general deterrence-in fashioning its sentence. Under the circumstances
of this case, a sentence of 86 years’ imprisonment is substantively reasonable.
**4 [6] Finally, we need not address Siddiqui’s
claim that the district court erred in finding that her conduct was
premeditated. Even without a finding of premeditation, Siddiqui’s Guidelines
range would have been life imprisonment. As such, the district court
characterized the dispute regarding premeditation as academic before addressing
the issue. Any error in finding Siddiqui’s conduct to be premeditated would be
harmless. See United States v.
Jass, 569 F.3d 47, 68 (2d Cir.2009).
After a thorough review of the record, we find Siddiqui’s
remaining arguments to be without merit.
For the foregoing reasons, and for the reasons stated in
the accompanying published opinion, the judgment of the district court is
hereby AFFIRMED.
501 Fed.Appx. 56, 2012 WL 5382674