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United States v.
Garcia Sota, D.C.Cir., January 21, 2020
699 F.3d 690
United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellee,
v.
Aafia SIDDIQUI, Defendant–Appellant.*
Docket No. 10–3916–cr.
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Argued: Feb. 10, 2012.
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Decided: Nov. 5, 2012.
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Amended: Nov. 15, 2012.
Background:
Defendant was convicted in the United States District Court for the Southern
District of New York, Richard M.
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 a firearm during a crime of violence. Defendant appealed.
Holdings: The Court of Appeals, Wesley,
Circuit Judge, held that:
[1]
requirement that Attorney General issue certification before “prosecution for
any offense described in [statute governing attempted murder of United States
nationals] shall be undertaken” required Attorney General to issue
certification either at time of, or before filing of, first instrument charging
violation of that statute;
[2]
statute protecting United States officers and employees engaged in official
duties from harm, statute that criminalized use of firearm during commission of
crime of violence, and statute protecting United States personnel from harm
when acting in their official capacity applied outside of United States even in
active theater of war;
[3]
district court did not abuse its discretion in admitting documents allegedly
found in defendant’s possession that explained construction and use of various
weapons and described “mass casualty attack” on number of New York City
landmarks;
[4]
district court’s alleged abuse of its discretion in admitting documentary
evidence was harmless;
[5]
new trial was not warranted on basis that admission of documents forced her to
testify and her defense was badly damaged by that testimony;
[6]
district court was not required to prevent defendant from testifying on her own
behalf after defense counsel had moved to keep defendant off stand;
[7]
incriminating, un-Mirandized statements that defendant gave to two
members of Federal Bureau of Investigation (FBI) security team while she was
hospitalized at Bagram Airfield were voluntary; and
[8]
application of both terrorism and official victim enhancements did not
constitute impermissible double counting.
Affirmed.
West Headnotes (34)
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Attorney
General |
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Requirement that Attorney General issue
certification before “prosecution for any offense described in [statute
governing attempted murder of United States nationals] shall be undertaken”
required Attorney General to issue certification either at time of, or before
filing of, first instrument charging violation of that statute; Attorney
General did not have to issue certification any time that someone engaged in
conduct that could be covered by statute. 18 U.S.C.A. §
2332(d). 1 Cases that
cite this headnote |
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Assault and
Battery Homicide |
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Statutes that punished murder and assault
of United States officers and personnel who were acting in official
capacities, and statute that criminalized use of firearm during commission of
crime of violence, applied outside of United States even in active theater of
war. 18 U.S.C.A. §§
111, 924(c),
1114. 3 Cases that
cite this headnote |
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International
Law |
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Congress has the authority to enforce its
laws beyond the territorial boundaries of the United States. 2 Cases that
cite this headnote |
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International
Law |
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The ordinary presumption that laws do not
apply extraterritorially has no application to criminal statutes; when the
text of a criminal statute is silent, Congressional intent to apply the
statute extraterritorially must be inferred from the nature of the offense. 8 Cases that
cite this headnote |
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War and
National Emergency |
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Unlawful combatants, unlike lawful
combatants, may be subjected to trial before a military commission. |
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Criminal Law Criminal Law |
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In defendant’s trial on charge of attempted
murder of United States nationals, district court did not abuse its
discretion in admitting documents allegedly found in defendant’s possession
in Afghanistan that explained construction and use of various weapons and
described “mass casualty attack” on number of New York City landmarks, even
after defense theory effectively removed any issue of her intent or
knowledge, since documentary evidence remained relevant to demonstrate
defendant’s motive. 18 U.S.C.A. §
2332; Fed.Rules
Evid.Rule 404(b), 28 U.S.C.A. |
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Criminal Law |
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A district court’s evidentiary rulings
encounter trouble on appeal only where the district court abuses its
discretion. 1 Cases that
cite this headnote |
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Criminal Law |
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A district court abuses its discretion when
its evidentiary rulings are arbitrary and irrational. 4 Cases that
cite this headnote |
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Criminal Law |
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Even when an evidentiary ruling is
manifestly erroneous, a defendant will not receive a new trial if admission
of the evidence was harmless. 2 Cases that
cite this headnote |
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Criminal Law |
|
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Evidence of a defendant’s prior crimes,
wrongs, or other acts must be relevant to an issue in dispute, and its
probative value must outweigh the risk of unfair prejudice. Fed.Rules
Evid.Rules 401–403,
404(b),
28 U.S.C.A. |
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Criminal Law Criminal Law |
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Evidence of a defendant’s prior crimes,
wrongs, or other acts cannot be used to prove that a defendant was a bad
fellow and most likely remains one, i.e., that he has a criminal nature or
propensity and the acts in question are consistent with his nature or
tendency towards crime, but this type of evidence may be admissible for other
legitimate purposes, such as demonstrating motive, opportunity, identity,
intent, and knowledge under this “inclusionary” approach, all “other act”
evidence is generally admissible unless it serves the sole purpose of showing
a defendant’s bad character. Fed.Rules
Evid.Rule 404(b), 28 U.S.C.A. 1 Cases that
cite this headnote |
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Criminal Law Criminal Law |
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A defendant may forestall the admission of
evidence of a defendant’s prior crimes, wrongs, or other acts by advancing a
theory that makes clear that the object the evidence seeks to establish,
while technically at issue, is not really in dispute; for example, a defense
theory that the defendant did not commit the charged act effectively removes
issues of intent and knowledge from the case. Fed.Rules
Evid.Rule 404(b), 28 U.S.C.A. 3 Cases that
cite this headnote |
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Criminal Law |
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Unlike issues of knowledge and intent, the
defendant’s motive, i.e., an explanation of why the defendant would engage in
the charged conduct, becomes highly relevant when the defendant argues that
he did not commit the crime. 3 Cases that
cite this headnote |
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Criminal Law |
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Defendant waived argument for consideration
on appeal, that documents admitted in her trial for attempted murder of
United States nationals were “adverse and prejudicial,” “incendiary,” and “powerful,
prejudicial, and damning,” where she never argued in her briefs that evidence
should have been excluded on theory that its probative value was
substantially outweighed by danger of unfair prejudice. 18 U.S.C.A. §
2332(b)(1); Fed.Rules
Evid.Rule 403, 28 U.S.C.A. |
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Criminal Law |
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In defendant’s trial on charge of attempted
murder of United States nationals, district court’s alleged abuse of its
discretion was harmless, in admitting documents for purpose of demonstrating
defendant’s motive that allegedly had been found in defendant’s possession in
Afghanistan that explained construction and use of various weapons and described
“mass casualty attack” on number of New York City landmarks, even after
defense theory effectively removed any issue of her intent or knowledge,
since jury also had ample testimony before it regarding anti-American
statements that defendant had made at time of shooting from which it could
conclude that defendant harbored animus towards United States and strength of
government’s case was overwhelming. 18 U.S.C.A. §
2332; Fed.Rules
Evid.Rule 404(b), 28 U.S.C.A. |
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Criminal Law |
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An evidentiary error is harmless if the
appellate court can conclude with fair assurance that the evidence did not
substantially influence the jury. 1 Cases that
cite this headnote |
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Criminal Law Criminal Law |
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When considering whether an evidentiary
error is harmless, a court considers whether the evidence was tied to an
issue that was plainly critical to the jury’s decision, whether that evidence
was material to the establishment of the critical fact or whether it was
instead corroborative and cumulative, and whether the wrongly admitted
evidence was emphasized in arguments to the jury, but the most critical
factor is the strength of the government’s case. 1 Cases that
cite this headnote |
|
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Criminal Law Criminal Law |
|
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In defendant’s trial on charge of attempted
murder of United States nationals, district court’s alleged abuse of its
discretion in admitting documents for purpose of demonstrating defendant’s
motive that allegedly had been found in defendant’s possession in Afghanistan
that explained construction and use of various weapons and described “mass
casualty attack” on number of New York City landmarks, even after defense
theory effectively removed any issue of her intent or knowledge, did not
require new trial on claim that it forced her to testify and her defense was
badly damaged by that testimony, since introduction of documents was somewhat
cumulative on issue of whether defendant harbored anti-American animus and counsel
advised defendant to not testify. 18 U.S.C.A. §
111; Fed.Rules
Evid.Rule 404(b), 28 U.S.C.A. |
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Witnesses |
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District court was not required to prevent
defendant from testifying on her own behalf after defense counsel had moved
to keep defendant off stand, on basis that she was incompetent to exercise
her right to testify, even though she was competent to stand trial; court
went to extraordinary lengths to ensure that defendant understood
implications of testifying and had capacity to testify and implicitly
determined that defendant did in fact have requisite capacity to determine
whether to testify and then, actually to testify. 2 Cases that
cite this headnote |
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Constitutional
Law Witnesses |
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Criminal defendants have the right to
testify in their own defense; this right is essential to due process of law
in a fair adversary process because the most important witness for the
defense in many criminal cases is the defendant himself, and he has the right
to present his own version of events in his own words. U.S.C.A.
Const.Amend. 5. 1 Cases that
cite this headnote |
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Attorneys and
Legal Services |
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The ultimate decision to testify remains at
all times with the defendant; defense counsel, though charged with an
obligation to apprise the defendant of the benefits and risks of testifying,
cannot make the decision, regardless of tactical considerations. 2 Cases that
cite this headnote |
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Criminal Law |
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A court may require that trial counsel
appear on behalf of a mentally ill defendant representing himself, but it
need not do so. 2 Cases that
cite this headnote |
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Criminal Law |
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Incriminating, un-Mirandized
statements that defendant gave to two members of Federal Bureau of
Investigation (FBI) security team while she was hospitalized at Bagram
Airfield in Afghanistan were voluntary and thus could be used in government’s
rebuttal case after defendant testified in her trial on charge of attempted
murder of United States nationals; although defendant had been kept in soft
restraints, agents’ conduct was not overbearing or abusive, defendant
conversed freely with agents, she was highly educated, and she was lucid and
able to engage agents in coherent conversation despite pain attendant to her
injury. 18 U.S.C.A. §
2332. 8 Cases that
cite this headnote |
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Criminal Law Witnesses |
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Statements taken from a defendant in
violation of Miranda may not be introduced by the government during
its case in chief, but the government may introduce un-Mirandized
statements to impeach the defendant’s testimony because a defendant must
testify truthfully or suffer the consequences; however, the government cannot
introduce a defendant’s involuntary statements. 1 Cases that
cite this headnote |
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The government bears the burden of demonstrating
that the defendant’s statements were voluntary. 13 Cases that
cite this headnote |
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Criminal Law |
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To determine whether a defendant’s
statements were made voluntarily, a court looks to the totality of the
circumstances surrounding the statements including the accused’s age, his
lack of education or low intelligence, the failure to give Miranda
warnings, the length of detention, the nature of the interrogation, any use
of physical punishment, and a defendant’s mental vulnerability. 11 Cases that
cite this headnote |
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Criminal Law |
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The Court of Appeals reviews the factual
findings underpinning the district court’s determination of the voluntariness
of statements for clear error while subjecting the ultimate conclusion that a
defendant’s statements were voluntarily to de novo review. 3 Cases that
cite this headnote |
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Sentencing and
Punishment |
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Application of both terrorism and official
victim enhancements did not constitute impermissible double counting in
sentencing defendant after she was convicted of attempted murder of United
States nationals, attempted murder of United States officers and employees,
and armed assault of United States officers and employees in Afghanistan;
official victim enhancement dealt with selection of victims based on their
status as government employees and terrorism enhancement addressed those acts
that were calculated to influence government conduct or to retaliate against
government. 18 U.S.C.A. §§
1114, 2332;
U.S.S.G. §
3A1.4, 18 U.S.C.A. 5 Cases that
cite this headnote |
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Sentencing and
Punishment |
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A district court calculating a United
States Sentencing Guidelines (USSGs) sentence may apply multiple enhancements
based on the same underlying conduct, especially where each of the multiple
enhancements serves a distinct purpose or represents a discrete harm. |
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Sentencing and
Punishment |
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A court gives the words used in the United
States Sentencing Guidelines (USSGs) their common meaning when interpreting
Guidelines. |
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Sentencing and
Punishment |
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In application of the United States
Sentencing Guidelines (USSGs) enhancement for terrorism, “calculated” means
planned, for whatever reason or motive, to achieve the stated object. 18 U.S.C.A. §
2332b(g)(5)(A). |
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Sentencing and
Punishment |
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Where there is no evidence that the
defendant sought to influence or affect the conduct of the government, the
United States Sentencing Guidelines (USSGs) enhancement for terrorism is
inapplicable. 18 U.S.C.A. §
2332b(g)(5)(A). 3 Cases that
cite this headnote |
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Sentencing and
Punishment |
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Application of United States Sentencing
Guidelines (USSGs) enhancement for terrorism was warranted, after defendant
was convicted of attempted murder of United States nationals in Afghanistan,
where defendant repeatedly implored Afghan police officials on day before
shooting incident to not turn her over to American forces and defendant
gained control of rifle and fired on American interview team attempting to
take her into United States custody on following day, and defendant referred
to United States as invaders and indicated that target of bombs were “the
foreigners” when queried about bomb-making documents found in her possession.
18 U.S.C.A. § 2332b(g)(5)(A). 2 Cases that
cite this headnote |
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Sentencing and
Punishment |
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The United States Sentencing Guidelines
(USSGs) enhancement for terrorism is applicable where a defendant acts
according to a plan, whether developed over a long period of time or
developed in a span of seconds, with the object of influencing government
conduct or retaliating against a government. 18 U.S.C.A. §
2332b(g)(5)(A). 3 Cases that
cite this headnote |
*695 Dawn M. Cardi
(Chad L. Edgar,
on the brief), Dawn M. Cardi & Associates, New York, NY, for Defendant–Appellant.
Jenna M. Dabbs,
Jesse M. Furman, Assistant United States Attorneys (Christopher L.
Lavigne, Assistant United States *696
Attorney, on the brief), for Preet Bharara, United States Attorney for the
Southern District of New York, New York, NY, for Appellee.
Before: WESLEY,
CARNEY,
Circuit Judges, MAUSKOPF, District Judge.**
WESLEY,
Circuit Judge:
Defendant–Appellant Aafia Siddiqui appeals from a
judgment of the United States District Court for the Southern District of New
York (Berman, J.) entered on September 23, 2010, convicting her after a
jury trial of one count of attempted murder of United States nationals in
violation of 18 U.S.C. §
2332(b)(1); one count of attempted murder of United States officers
and employees in violation of 18 U.S.C. §
1114(3); one count of armed assault of United States officers and
employees in violation of 18 U.S.C. §
111(a)(1) and (b);
one count of using a firearm during a crime of violence in violation of 18 U.S.C. §
924(c); and three counts of assault of United States officers and
employees in violation of 18 U.S.C. §
111(a)(1). The district court sentenced her principally to 86 years’
imprisonment. Siddiqui urges this Court to reverse her convictions and, failing
that, to vacate her sentence. We address five of the arguments that Siddiqui
raises on appeal here and the remaining issues in an accompanying summary
order.
I. BACKGROUND
A. Offense Conduct
Around dusk on July 17, 2008, Afghan National Police (“ANP”)
detained Aafia Siddiqui, a United States-educated Pakistani national, in Ghazni
City, Afghanistan, on suspicion of attempting to attack the Governor of Ghazni.
When police took her into custody, Siddiqui possessed, among other things,
various documents that discussed the construction of weapons, referenced a “mass
casualty attack,” and listed a number of New York City landmarks. Afghan
authorities brought Siddiqui to an ANP facility for questioning. Later that
evening, the Governor of Ghazni delivered the materials found in Siddiqui’s
possession to the United States Army.
The following morning, the United States dispatched a
team to the ANP facility with the objective of interviewing Siddiqui and
ultimately taking her into American custody. The team—most dressed in military
fatigues—consisted of two FBI agents and members of a military special forces
unit. Afghan officials brought the team to a poorly lit room partitioned by a
yellow curtain. The room was crowded with Afghan officials, and unbeknownst to
the Americans, Siddiqui was sequestered unrestrained behind the curtain.
The presence of a large number of Afghan officials led
members of the American team to believe that they had been brought to the room
to discuss the terms of their access to Siddiqui. One of the team members, a
Chief Warrant Officer, moved to a chair near the curtain dividing the room.
After quickly glancing behind the curtain and seeing nothing, he set down his M–4
rifle and turned to engage the Afghan officials in conversation. Moments later,
Siddiqui gained control of the rifle, aimed it at members of the American team,
shouted, and fired. The team’s interpreter lunged at and struggled with
Siddiqui. As the interpreter wrestled with her, the Chief Warrant Officer drew
his sidearm and shot Siddiqui in the stomach.
*697 Team members then attempted to restrain Siddiqui, who
was fiercely resisting and screaming anti-American statements. One witness
recalled Siddiqui stating, “I am going to kill all you Americans. You are going
to die by my blood.” Another recounted that Siddiqui yelled “death to America”
and “I will kill all you motherfuckers.”
Eventually, the Americans were able to subdue Siddiqui
enough to begin to render emergency medical aid to her. After providing
preliminary treatment at the scene, the Americans transported her to a number
of military bases in Afghanistan to undergo surgery and receive further care.
On July 19, 2008, American forces moved Siddiqui to Bagram Airfield to
recuperate.
While recovering at Bagram, Siddiqui was guarded by an
FBI team. She was tethered to her hospital bed in soft restraints. During the
course of her stay at Bagram, Siddiqui provided a number of incriminating, un-Mirandized
statements to two members of the security team. In particular, she (1) asked
about the penalty for attempted murder; (2) stated that she had a number of
documents in her possession at the time of her arrest and recognized some of
them when shown to her; (3) said that she had picked up a rifle with the
intention of scaring the American team and escaping; and (4) noted that “spewing”
bullets at Americans was a bad thing.
The government filed a sealed criminal complaint against
Siddiqui in the Southern District of New York on July 31, 2008. On August 4,
2008, the government transferred Siddiqui to the United States for prosecution.
A month later, Siddiqui was indicted.
B. Pre–Trial
Soon after the indictment was filed, the district court
ordered that Siddiqui undergo psychiatric evaluations of her competence to
stand trial. In a report issued on November 6, 2008, Dr. Leslie Powers opined
that Siddiqui was not currently competent, citing, among other things,
Siddiqui’s reports of visual hallucinations. Later, Dr. Powers revised her
assessment, finding that Siddiqui was malingering to avoid prosecution. Other
experts arrived at the same conclusion, although one expert commissioned by the
defense opined that Siddiqui was not competent. The district court held a
competency hearing on July 6, 2009. After canvassing the relevant evidence, the
court found Siddiqui competent to stand trial.
In advance of trial, the district court ruled on a number
of motions, some of which are relevant here. Siddiqui first moved to dismiss
all of the counts of the indictment. As to Count One, Siddiqui claimed that the
Attorney General failed to timely issue the required written certification that
her offense (attempted murder of United States nationals) “was intended to
coerce, intimidate, or retaliate against a government or a civilian population.”1 18 U.S.C. §
2332(d). Siddiqui also contended that Counts Two through Seven,
charging violations of 18 U.S.C. §§
1114, 111,
and 924(c),
should be dismissed because the statutes do not have extraterritorial
application under the circumstances of her case. The district court denied
Siddiqui’s motions.
The district court also considered the government’s
motion in limine to admit certain documents and other evidence recovered from
Siddiqui at the time of her arrest by Afghan officials. These documents, some
of which were in Siddiqui’s handwriting and bore her fingerprints, referred to
attacks on the United States and *698
the construction of various weapons. The court found this evidence admissible
pursuant to Federal Rule of
Evidence 404(b) to show Siddiqui’s “motive, intent, identity, and
knowledge.” In finding the documents admissible, the court rejected the
argument that the evidence would cause Siddiqui unfair prejudice, concluding
that the documents were no more sensational than the crimes charged. The court
also noted that it would instruct the jury that the documents were not to be
considered as propensity evidence.
C. Trial
At trial, the government presented six members of the
American interview team who testified that Siddiqui gained control of the Chief
Warrant Officer’s rifle and fired at them. Three more witnesses who did not
directly observe the shooting testified that they heard M–4 rifle shots. A
government expert testified that the fact that no gunpowder residue was found
on the curtain hanging in the room did not necessarily indicate that an M–4 had
not been fired because someone standing between the curtain and the weapon
could have absorbed the residue. The government also introduced the 404(b)
documents discussed above.2
The defense put forth a forensic metallurgist who, based
on the lack of forensic evidence of a discharge of a M–4 rifle at the crime
scene, testified that he did not believe an M–4 had been fired in the room. In
particular, he found it implausible that someone could discharge an M–4 rifle
in a room without bullet fragments or gunpowder residue being recovered by
authorities. The defense also introduced deposition testimony of an ANP officer
that when Siddiqui was arrested she possessed documents describing how to make
explosive devices, among other things, and that while in Afghani custody she
made anti-American statements and asked not be turned over to the United
States. He also stated that he saw an American soldier walk behind the curtain
prior to hearing shots fired, although he did not directly observe the
shooting.3 Significantly, the officer testified that he observed a
technician remove two rifle shells from the scene.
Against the advice and over the objection of her
attorneys, Siddiqui took the stand to testify in her own defense.4 Though her testimony at times lacked focus, she was able
to provide her version of the events that transpired on July 18, *699 2008. According to Siddiqui, she was
sitting behind a curtain in a room at the ANP facility when she heard American
voices. She feared being taken into American custody and peeked through an
opening in the curtain with the hope of finding an escape route. Siddiqui
testified that she was then shot from multiple directions. She stated that she
never picked up, aimed, or fired an M–4 rifle at the Americans.
Siddiqui claimed that she could not confirm that she
possessed documents at the time of her arrest in Afghanistan because she was “in
a daze.” JA 2371. She stated that the bag in which the documents were found was
not hers but rather was given to her. When confronted with the document
referencing mass casualty attacks and listing New York City landmarks, Siddiqui
testified that it was a “possibility” that the document was in her own
handwriting. JA 2372.
After the defense rested, the government presented its
rebuttal case. Two FBI agents who were members of Siddiqui’s security detail
during her recovery at Bagram recounted several incriminating statements that
Siddiqui made to them. Before receiving this testimony, the district court held
a hearing to determine whether Siddiqui gave these un-Mirandized
statements voluntarily.5 At that hearing, the two FBI agents testified, as did
Siddiqui. The district court determined that Siddiqui’s statements were
voluntary.
On February 3, 2010, the jury returned a guilty verdict
on all counts of the indictment. The district court sentenced Siddiqui on
September 23, 2010. In addition to a number of other enhancements, the court
applied the terrorism enhancement pursuant to U.S.S.G. § 3A1.4.
In applying the enhancement, the court found that Siddiqui’s offense was
calculated to influence the conduct of the government by intimidation, namely,
attempting to frustrate the interview team’s efforts to detain her. Further,
based on a number of anti-American statements Siddiqui made before and at the
time of the shooting, the court determined that Siddiqui’s conduct was
calculated to retaliate against the United States government. The district
court sentenced Siddiqui principally to 86 years’ imprisonment and five years
of supervised release.
Siddiqui timely appealed her convictions and sentence.
II. DISCUSSION
A. Denial of Siddiqui’s Motion to Dismiss the
Indictment
[1] Siddiqui raised below, and now reasserts,
several challenges to the indictment. According to Siddiqui, the district court
should have dismissed Count One, which charged a violation of 18 U.S.C. § 2332,
because the United States Attorney General did not timely issue the
certification required by 18 U.S.C. §
2332(d). She also argues that the remaining counts are deficient
because the underlying statutes do not apply extraterritorially in an active
theater of war. We disagree.
Section 2332(d)
provides that “[n]o prosecution for any offense described in this section shall
be undertaken by the United States except on written certification of the
Attorney General ... [that] such offense was intended to coerce, intimidate, or
retaliate against a government or civilian population.” Siddiqui relies on
speedy trial principles to conclude that a prosecution *700 is commenced at the time of arrest or
the filing of formal charges. But Siddiqui’s argument here encounters an
obstacle: the original complaint on which Siddiqui was arrested did not charge
a violation of § 2332.
The first instrument to do so was the indictment, which was filed the same day
the Attorney General issued the § 2332(d)
certification.
Siddiqui has an answer to the problem. She points out
that the statute requires certification prior to a prosecution for an “offense described
in this section.” 18 U.S.C. §
2332(d) (emphasis added). In her view, the Attorney General is
required to issue the certification before an accusatory instrument describing
facts that could constitute a violation of § 2332
is filed, regardless of whether that instrument actually charges a violation of
§ 2332.
Siddiqui reasons that because the criminal complaint filed on July 31, 2008
described conduct proscribed by § 2332,
the Attorney General’s certification filed the day of the indictment was
untimely.
Siddiqui’s argument offers an unusual reading of what
appears to be straightforward statutory language—a reading that would undercut
the very purpose of the provision. Section 2332(d)’s
requirement that the Attorney General issue a certification before “prosecution
for any offense described in [§ 2332]
shall be undertaken ” is most naturally read as a requirement that the
Attorney General issue the certification either at the time of or before the
filing of the first instrument charging a violation of § 2332.
This view furthers the purpose of § 2332(d)—namely,
ensuring that the statute reaches only terrorist violence inflicted upon United
States nationals, not “[s]imple barroom brawls or normal street crime.” See
H.R. Conf. Rep.
99–783, at 87, reprinted in 1986 U.S.C.C.A.N. 1926, 1960.
Under Siddiqui’s interpretation of the provision, the
Attorney General would have to issue the certification any time someone engaged
in conduct that could be covered by the statute. This would deprive the Attorney
General of the opportunity to sort through the facts of each case to determine
if it merited certification—and prosecution—under the statute. More simply put,
Siddiqui’s interpretation would undercut § 2332(d)’s
primary objective. Accordingly, the district court did not err in denying
Siddiqui’s motion to dismiss Count One of the indictment.
[2] Siddiqui next contends that Counts Two
through Seven of the indictment should be dismissed because the charging
statutes—18 U.S.C. §§
1114,6 111,7 and 924(c)8—do not have application extraterritorially “in an active
theater of war.” This argument is without merit.
[3] [4] “Congress has the authority to ‘enforce
its laws beyond the territorial boundaries of the United States.’ ” United States v.
Yousef, 327 F.3d 56, 86 (2d Cir.2003) (quoting EEOC v. Arabian
Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)).
The ordinary presumption that laws do not apply extraterritorially has no
application to criminal statutes. United States v.
Al Kassar, 660 F.3d 108, 118 (2d Cir.2011). “When the *701 text of a criminal statute is silent,
Congressional intent to apply the statute extraterritorially must ‘be inferred
from the nature of the offense.’ ” Id. (quoting United States v.
Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922)).
The statutes underlying Counts Two through Seven apply
extraterritorially. Subsequent to the filing of Siddiqui’s brief, we held that 18 U.S.C. § 1114
applies extraterritorially. Al Kassar, 660 F.3d at 118.
We reasoned that “the nature of the offense—protecting U.S. personnel from harm
when acting in their official capacity—implies an intent that [the statute]
apply outside of the United States.” Id. We see no basis for expecting
Congress to have intended to limit these protections to U.S. personnel acting
within the United States only. For the same reason, § 111
applies extraterritorially. See United States v.
Benitez, 741 F.2d 1312, 1316–17 (11th Cir.1984); see also United States v.
Hasan, 747 F.Supp.2d 642, 685–86 (E.D.Va.2010). Like 18 U.S.C. § 1114,
the nature of the offense—protecting United States officers and employees
engaged in official duties from harm—implies a Congressional intent that § 111
apply outside of the United States. See Al Kassar, 660 F.3d at 118.
As for § 924,
which criminalizes the use of a firearm during commission of a crime of
violence, every federal court that has considered the issue has given the
statute extraterritorial application where, as here, the underlying substantive
criminal statutes apply extraterritorially. See, e.g., United States v.
Belfast, 611 F.3d 783, 815 (11th Cir.2010); United States v.
Ahmed, No. 10 Cr. 131(PKC), 2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012);
United States v.
Mardirossian, 818 F.Supp.2d 775, 776–77 (S.D.N.Y.2011). We
see no reason to quarrel with their conclusions.
[5] Siddiqui’s argument that the statutes,
even if generally extraterritorial, do not apply “in an active theater of war”
is unpersuasive.9 As the government points out, it would be incongruous to
conclude that statutes aimed at protecting United States officers and employees
do not apply in areas of conflict where large numbers of officers and employees
operate. The district court appropriately denied Siddiqui’s motion to dismiss
Counts Two through Seven of the Indictment.
B. Admission of Documents under Federal Rule of
Evidence 404(b)
[6] The district court admitted documents
allegedly found in Siddiqui’s possession that explained the construction and
use of various weapons and described a “mass casualty attack” on a number of
New York City landmarks for the purpose of demonstrating Siddiqui’s knowledge,
motive, and intent. Siddiqui argues that *702
her defense—that she never picked up and fired the Chief Warrant Officer’s
rifle—removed those issues from the case and thus admission of the documents
was improper.
[7] [8] [9] A district court’s evidentiary rulings
encounter trouble on appeal only where the district court abuses its
discretion. United States v.
Mercado, 573 F.3d 138, 141 (2d Cir.2009). A district court abuses its
discretion when its evidentiary rulings are “arbitrary and irrational.” Id.
But even when an evidentiary ruling is “manifestly erroneous,” the defendant
will not receive a new trial if admission of the evidence was harmless. Cameron v. City
of New York, 598 F.3d 50, 61 (2d Cir.2010).
[10] [11] Federal Rule of
Evidence 404(b) provides that evidence of a defendant’s prior
crimes, wrongs, or other acts cannot be used to prove that a defendant was a
bad fellow and most likely remains one—that he has a criminal nature or
propensity and the acts in question are consistent with his nature or tendency
towards crime. However, this type of evidence may be admissible for other
legitimate purposes, such as demonstrating motive, opportunity, identity,
intent, and knowledge. Id. Under our “inclusionary” approach, all “other
act” evidence is generally admissible unless it serves the sole purpose of
showing a defendant’s bad character. United States v.
Curley, 639 F.3d 50, 56 (2d Cir.2011).10
[12] A defendant may, however, forestall the
admission of Rule 404(b)
evidence by advancing a theory that makes clear that the object the 404(b)
evidence seeks to establish, while technically at issue, is not really in
dispute. See United States v.
Colon, 880 F.2d 650, 656 (2d Cir.1989). For example, a defense
theory that the defendant did not commit the charged act effectively removes
issues of intent and knowledge from the case. See id. at 657;
United States v.
Ortiz, 857 F.2d 900, 904 (2d Cir.1988). Siddiqui’s defense was just
that—“I didn’t fire the M–4.”
[13] But even assuming that Siddiqui’s defense
theory effectively removed any issue of her intent or knowledge, the
documentary evidence remained relevant to demonstrate Siddiqui’s motive. Motive
has been variously defined as “the reason that nudges the will and prods the
mind to indulge the criminal intent,” United States v.
Benton, 637 F.2d 1052, 1056 (5th Cir.1981) (internal quotation marks
omitted); “the rationale for an actor’s particular conduct,” United States v.
Awan, 607 F.3d 306, 317 (2d Cir.2010); and “an emotion or state of
mind that prompts a person to act in a particular way,” Charles Alan Wright and
Kenneth W. Graham, Jr., Federal Practice and Procedure: Federal Rules of
Evidence § 5240. “Although it does not bear directly on the charged
elements of a crime, evidence offered to prove motive is commonly admitted.” United States v.
Salameh, 152 F.3d 88, 111 (2d Cir.1998). And unlike issues of
knowledge and intent, the defendant’s motive—an explanation of why the
defendant would engage in the charged conduct—becomes highly relevant when the
defendant argues that he did not commit the crime.
For instance, in Salameh, the defendants were
charged with a conspiracy to bomb the World Trade Center. Id. at 108.
The district court admitted documents possessed by the defendants that “bristled
with strong anti-American sentiment.” *703
Id. at 111.
On appeal, we found those documents admissible to demonstrate the conspiracy’s
motive. Id.
[14] Here, the documents the government
introduced pursuant to Rule 404(b)
detail, among other things, the construction of fertilizer and plastic
explosives. One document in particular discusses radioactive bombs, biological
weapons, and chemical weapons. That document also contains the phrase “mass
casualty attack” and lists a number of New York City landmarks, including Grand
Central Terminal, the Empire State Building, the Statute of Liberty, and the
Brooklyn Bridge. Taken together, these documents, which were in Siddiqui’s
possession at the time Afghan officials took her into custody11 and some of which were in her handwriting, supply a
plausible rationale for why Siddiqui would fire a rifle at the American
interview team, namely, she harbored an anti-American animus. This motive was
relevant to the ultimate issue in dispute at trial—whether Siddiqui
picked up and fired the M–4 rifle at the American interview team. Accordingly,
the district court did not abuse its discretion in admitting the documents
pursuant to Rule 404(b).12
[15] [16] [17] But even if we agreed with Siddiqui that
the district court abused its discretion in admitting the documents, that would
not end the matter. There would remain the question of whether the error was
harmless. An evidentiary error is harmless “if the appellate court can conclude
with fair assurance that the evidence did not substantially influence the jury.”
United States v.
Cadet, 664 F.3d 27, 32 (2d Cir.2011) (internal quotation marks
omitted). Several factors bear on the inquiry: whether the evidence was tied to
“an issue that [was] plainly critical to the jury’s decision”; “whether that
[evidence] was material to the establishment of the critical fact or whether it
was instead corroborat[ive] and cumulative”; and “whether the wrongly admitted
evidence was emphasized in arguments to the jury.” Curley, 639 F.3d at 58
(internal quotation marks omitted). But the most critical factor is “the
strength of the government’s case.” Id. (internal quotation marks
omitted).
Here, although the government by its own admission “repeatedly
referenced the documents introduced at trial,” Government Br. 37, the jury also
had ample testimony before it regarding anti-American statements Siddiqui made
at the time of the shooting from which it could conclude that Siddiqui harbored
an animus towards the United States. And most importantly, the strength of the
government’s case was overwhelming. Among other evidence, six members of
the American interview team testified that Siddiqui gained control of the *704 Chief Warrant Officer’s rifle and
fired at them. Another three government witnesses who did not observe the
shooting testified that they heard M–4 rifle shots. Moreover, after Siddiqui
testified, the government introduced the testimony of two FBI agents who had
interviewed Siddiqui. According to those agents, Siddiqui, among other things,
(1) asked what the penalty for attempted murder was; and (2) noted that “spewing”
bullets at Americans was a bad thing.
Siddiqui counters that her forensic expert’s opinion that
an M–4 rifle had not been fired in the room effectively neutralized the
government’s case against her. However, this forensic expert’s testimony was
undermined by one of Siddiqui’s own witnesses, who testified that two rifle
shells were recovered from the room, and by a government expert’s testimony
that the absence of certain forensic evidence from the room was not necessarily
inconsistent with the firing of a weapon.
Siddiqui also asserts that our decision in United States v.
Colon, 880 F.2d 650 (2d Cir.1989), requires us to grant her a new
trial. She argues that Colon mandates that we assess the strength of the
government’s case without reference to the government’s cross-examination of
Siddiqui or the incriminating statements she made at Bagram and that Colon
requires a new trial because the admission of the documents forced her to testify
and she was harmed by doing so. We disagree.
In Colon, the defendant was charged with heroin
distribution. Id. at 652.
His defense was that he did not engage in the charged act. Id. at 658.
Nevertheless, the district court admitted evidence concerning two prior
instances in which the defendant had sold heroin to demonstrate knowledge and
intent—an obvious error. Id. at 656.
The defendant then testified, and, in the words of his counsel, “the
[Assistant] U.S. Attorney made a jackass out of him.” Id. at 661
(brackets in original). Specifically, the cross-examination cast doubt on the
defendant’s credibility and delved deeply into the circumstances surrounding
the defendant’s prior involvement with heroin. Id.
Because the record in Colon demonstrated that the defendant’s case was
badly damaged by the erroneous admission of the evidence, and because the
defense may have felt that there was no alternative but to have the defendant
testify as a result, we granted the defendant a new trial. See id. at 661–62.
Here, we need not resolve the issue of whether Colon
necessitates that we measure the strength of the Government’s case without
reference to either Siddiqui’s cross-examination or the admission of the
incriminating statements she made at Bagram. Even without that evidence, the
government’s case against Siddiqui can only be fairly characterized as
devastating.
[18] We also disagree with Siddiqui’s claim
that Colon requires a new trial because the admission of the 404(b)
evidence forced her to testify and her defense was badly damaged by that
testimony. Unlike in Colon, the introduction of the 404(b) evidence here
did not necessitate Siddiqui’s testimony from an objective, strategic
standpoint. The 404(b) evidence was somewhat cumulative on the issue of whether
Siddiqui harbored an anti-American animus, given that numerous witnesses
testified as part of the government’s case-in-chief that she made anti-American
statements during the shooting incident. Further, even after the introduction
of the 404(b) evidence, defense counsel advised Siddiqui not to testify, we
presume in large part because her testimony would open the door to the
admission of the incriminating statements she made while recovering at Bagram. Colon
does not allow a defendant *705 to make
an otherwise harmless error harmful based on her simple assertion that the
error compelled her to testify.
C. Denial of Defense Counsel’s Application to
Keep Siddiqui from Testifying
[19] [20] [21] It is well established that criminal
defendants have the right to testify in their own defense. Rock v.
Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); see
Brown v. Artuz, 124 F.3d 73, 76
(2d Cir.1997). “This right ... is ... essential to due process of
law in a fair adversary process.” Bennett v.
United States, 663 F.3d 71, 84 (2d Cir.2011) (internal
quotation marks omitted). That is because “the most important witness for the
defense in many criminal cases is the defendant himself,” and he has the “right
to present his own version of events in his own words.” Rock, 483 U.S. at 52,
107 S.Ct. 2704. The ultimate decision to testify remains at all
times with the defendant; defense counsel, though charged with an obligation to
apprise the defendant of the benefits and risks of testifying, cannot make the
decision, regardless of tactical considerations. Brown, 124 F.3d at 77–78.
Siddiqui’s counsel does not challenge these clearly
established principles. Instead, she urges us to craft an exception to the
general rule, arguing that in some cases a defendant may be competent to stand
trial yet incompetent to exercise her right to testify without the approval of
defense counsel.
In support of her argument, counsel relies heavily on the
Supreme Court’s decision in Indiana v.
Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). There,
the Court held that a state may determine that a defendant who is competent to
stand trial may nonetheless be incapable of representing himself at trial and
may thus insist that the defendant have trial counsel. Id. at 167, 128
S.Ct. 2379. The Court noted that a mentally ill defendant may not
possess the ability to execute tasks such as organizing a defense, arguing
points of law, and questioning witnesses. Id. at 176–77, 128
S.Ct. 2379. It further observed that a prolonged spectacle could
result from such a defendant representing himself, and that spectacle would
undercut the Constitution’s goal of providing a fair trial. Id. at 177, 128
S.Ct. 2379.
[22] Counsel’s reliance on Edwards is
misplaced. First, as three other circuits have recognized, Edwards holds
that a court may require that trial counsel appear on behalf of a mentally ill
defendant, not that it must do so. See United States v.
Turner, 644 F.3d 713, 724 (8th Cir.2011); United States v.
Berry, 565 F.3d 385, 391 (7th Cir.2009); United States v.
DeShazer, 554 F.3d 1281, 1290 (10th Cir.2009). But even if Edwards
mandated trial courts to require trial counsel for a discrete group of mentally
ill defendants, the case still would have no application here. Common sense
dictates that the mental capacity needed to conduct an entire trial is much
greater than the mental capacity required to play the more limited role of
witness on one’s own behalf. Moreover, the defendant’s right to air her version
of events before a jury is “more fundamental to a personal defense than the
right of self-representation.” Rock, 483 U.S. at 52,
107 S.Ct. 2704. As such, Edwards does not significantly
support, let alone compel, the conclusion that a district court may prevent a
mentally ill defendant from testifying on her own behalf if defense counsel
moves to keep the defendant off the stand.
We question whether the Constitution permits a finding
that a criminal defendant is competent to stand trial, yet incompetent to
determine whether to testify on her own behalf. But we need not decide that *706 question today. Here, the district
court went to extraordinary lengths to ensure that Siddiqui understood the
implications of testifying and had the capacity to testify. Even were we to
discern any daylight between the standards governing a defendant’s capacity to
stand trial and those for assessing her capacity to determine whether to
testify (and then, actually to testify), we would find no reason to upset the
district court’s implicit determination that Siddiqui did in fact have the
requisite capacity to make the latter decision here. That Siddiqui’s choice to
testify—like many defendants’ decisions to testify—was a poor one, does not
alter our analysis. See Brown, 124 F.3d at 77–78.
D. Voluntariness of Siddiqui’s un-Mirandized
statements at Bagram
[23] Siddiqui contends that the district court
erred in finding that the incriminating, un-Mirandized statements she
gave to two members of the FBI security team while she was hospitalized at Bagram
Airfield were voluntary and thus could be used in the government’s rebuttal
case after Siddiqui testified. Prior to Siddiqui’s testimony, the court held a
hearing to determine the voluntariness of the statements. At that hearing, the
two FBI agents testified, and the district court’s ruling credited their
testimony. Their testimony established the following.
During the course of her stay at Bagram, Siddiqui was
tethered to her bed in soft restraints to prevent her escape.13 The agents endeavored to meet Siddiqui’s needs as best
they could and never denied her access to the restroom, food, water, or medical
attention. Further, Siddiqui had access to a medical call button that allowed
her to contact the hospital’s medical staff directly; therefore, she was not
entirely dependent on the agents to meet her basic needs. Although Siddiqui was
at times in pain and medicated, she was coherent, lucid, and able to carry on a
conversation.
Special Agent Angela Sercer spent the most time with
Siddiqui. She would arrive in the morning and stay approximately eight hours in
Siddiqui’s room. Upon arriving, she would ask Siddiqui if she wanted to talk;
if Siddiqui indicated she did not, Sercer would remain quietly in the room as a
member of Siddiqui’s security detail. Although the topic of the July 18th
shooting did come up, Sercer’s primary objective was to gather intelligence
related to another investigation of Siddiqui commenced years earlier. Siddiqui
was generally receptive to speaking with Sercer and indicated that she enjoyed
their discussions. Special Agent Bruce Kamerman spent significantly less time
with Siddiqui. Although he was not initially tasked with interviewing Siddiqui,
supervisors instructed Kamerman to “continue the dialog” when Siddiqui made
unsolicited incriminating statements to him. Siddiqui never indicated to
Kamerman that she was unwilling to talk. Neither agent gave Siddiqui Miranda
warnings.
[24] Statements taken from a defendant in
violation of Miranda may not be introduced by the government during its
case in chief. United States v.
Douglas, 525 F.3d 225, 248 (2d Cir.2008). But because a defendant “must
testify truthfully or suffer the consequences,” the government *707 may introduce un-Mirandized
statements to impeach the defendant’s testimony. Id. (internal quotation
marks omitted). The government cannot, however, introduce a defendant’s
involuntary statements. See, e.g., Mincey v.
Arizona, 437 U.S. 385, 397–98, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); see
also United States v.
Khalil, 214 F.3d 111, 121–22 (2d Cir.2000). Because Siddiqui
testified at trial, the government was free to introduce the statements she
made at Bagram Airfield so long as those statements were voluntary.
[25] [26] The government bears the burden of
demonstrating that the defendant’s statements were voluntary. See United States v.
Capers, 627 F.3d 470, 479 (2d Cir.2010); United States v.
Anderson, 929 F.2d 96, 99 (2d Cir.1991). To determine whether a
defendant’s statements were made voluntarily, courts look to the totality of
the circumstances surrounding the statements. Anderson, 929 F.2d at 99.
“Relevant factors ... include the accused’s age, his lack of education or low
intelligence, the failure to give Miranda warnings, the length of
detention, the nature of the interrogation, and any use of physical punishment.”
Campaneria v.
Reid, 891 F.2d 1014, 1020 (2d Cir.1989). A defendant’s mental
vulnerability also bears on the analysis. See Colorado v.
Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
A number of decisions have assessed the voluntariness of
a defendant’s statements where the defendant was in medical distress. For
example, in Mincey, 437 U.S. at 398–400,
98 S.Ct. 2408, the Supreme Court held that a defendant’s statements
to police were involuntary where the defendant (1) arrived at the hospital a
few hours before the interrogation “depressed almost to the point of coma”; (2)
suffered “unbearable” pain; (3) was unable to think coherently; (4) was “encumbered
by tubes, needles, and [a] breathing apparatus”; (5) expressed his desire that
the interrogation cease numerous times to no avail; and (6) was falling in and
out of consciousness. By contrast, courts tend to view a hospitalized
defendant’s statements as voluntary where the defendant was lucid and police
conduct was not overbearing. See Khalil, 214 F.3d at 121–22;
Pagan v. Keane, 984 F.2d 61, 63
(2d Cir.1993); Campaneria, 891 F.2d at
1019–20.
[27] We review the factual findings
underpinning the district court’s voluntariness determination for clear error
while subjecting the ultimate conclusion that a defendant’s statements were
voluntarily to de novo review. See Khalil, 214 F.3d at
122; see also United States v.
Pettigrew, 468 F.3d 626, 633 (10th Cir.2006); United States v.
Bell, 367 F.3d 452, 460–61 (5th Cir.2004). Doing so, we find no
error in the district court’s determination that Siddiqui’s statements were
voluntary. Although no Miranda warnings were given and Siddiqui was kept
in soft restraints for the duration of her hospital stay, the agents’ conduct
was not overbearing or abusive. To the contrary, the agents endeavored to meet
her basic needs. Siddiqui conversed freely with the agents, and when she
indicated that she did not want to engage in conversation, Special Agent Sercer
sat quietly in her room. Further, Siddiqui is highly educated, having earned
her undergraduate degree from Massachusetts Institute of Technology and a
doctorate from Brandeis University. Most importantly, just as in Khalil,
Pagan, and Campaneria, Siddiqui was lucid and able to engage the
agents in coherent conversation despite the pain attendant to her injury.
Thus, the district court did not err in allowing the
government to introduce the statements Siddiqui made while recuperating *708 at Bagram Airfield to rebut her trial
testimony.
E. Application of the Terrorism Enhancement
to Siddiqui’s Sentence
[28] Finally, we address Siddiqui’s challenge
to the district court’s application of the terrorism enhancement under U.S.S.G. § 3A1.4.
The enhancement increases by twelve the defendant’s offense level and elevates
the defendant’s criminal history category to category six if the defendant’s
offense “is a felony that involved, or was intended to promote, a federal crime
of terrorism.” Id. A “federal crime of terrorism” is an offense that “is
calculated to influence or affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct”; and is a violation of
any one of a number of enumerated statutes, including 18 U.S.C. §§
1114 and 2332.
U.S.S.G. § 3A1.4
app. n.1; 18 U.S.C. §
2332b(g)(5).
The district court found that Siddiqui’s offenses were
calculated to influence or affect government conduct and that they were
calculated to retaliate against government conduct. As to the former, the court
determined that Siddiqui’s offenses were “calculated to influence or affect by
intimidation the government’s fulfillment of its official duties including,
among other things, the interview team’s efforts to interview ... and ...
detain her.” JA 2848. The court, pointing to statements Siddiqui made while in
Afghan custody, determined that Siddiqui began scheming to avoid transfer to
American custody on July 17, 2008, and that the scheming came to fruition when
Siddiqui gained control of the Chief Warrant Officer’s rifle and fired at the
American interview team.
In support of the latter finding, the district court
highlighted testimony regarding various anti-American statements Siddiqui made
while in custody. In the court’s estimation, these statements demonstrated
Siddiqui’s intent to retaliate against the United States government.
Siddiqui argues that the district court erred in applying
the enhancement. She claims that application of both the terrorism enhancement
and the Guidelines’ official victim enhancement resulted in impermissible
double counting. She also contends that her conduct was not “calculated,” as
required by the plain language of the enhancement. According to Siddiqui,
long-term planning is a necessary condition to finding that a defendant’s
offense was “calculated.”
[29] Siddiqui’s contention that the district
court committed error in applying both the official victim enhancement and the
terrorism enhancement is devoid of merit. “[A] district court calculating a
Guidelines sentence may apply multiple [enhancements] based on the same
underlying conduct,” especially where “each of the multiple [enhancements] ...
serves a distinct purpose or represents a discrete harm.” United States v.
Maloney, 406 F.3d 149, 152, 153 (2d Cir.2005). The terrorism and
official victim enhancements both address discrete harms resulting from
Siddiqui’s conduct—the official victim enhancement “deals with the selection of
victims based on their status as government employees,” and the terrorism
enhancement addresses those acts that are calculated to influence government
conduct or to retaliate against a government. In re Terrorist
Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 153 (2d Cir.2008).
Accordingly, application of both the terrorism and official victim enhancements
does not constitute impermissible double counting. See id.
[30] [31] Resolution of Siddiqui’s challenge to the
district court’s finding that her offense was “calculated” merits more *709 discussion. As previously noted, for
the terrorism enhancement to apply, the defendant’s offense must be “calculated
to influence or affect the conduct of government by intimidation or coercion,
or to retaliate against government conduct.” 18 U.S.C. §
2332b(g)(5)(A) (emphasis added). When we interpret the Guidelines,
we “giv[e] the words used their common meaning.” United States v.
Stewart, 590 F.3d 93, 137 (2d Cir.2009). “Calculated” means “planned—for
whatever reason or motive—to achieve the stated object.” Awan, 607 F.3d at
317; see Stewart, 590 F.3d at 137
(“The conventional meaning of ‘calculated’ is ‘devised with forethought.’ ”).
[32] Many courts (including this one)
interpret “calculated” as nearly synonymous with intentional. See Stewart, 590 F.3d at
137; see also United States v.
Chandia, 675 F.3d 329, 333 n. 3 (4th Cir.2012); United States v.
El–Mezain, 664 F.3d 467, 571 (5th Cir.2011); United States v.
Jayyousi, 657 F.3d 1085, 1115 (11th Cir.2011). Thus, “if a defendant’s purpose
in committing an offense is to ‘influence or affect the conduct of government
by intimidation or coercion, or to retaliate against government conduct,’ ”
application of the terrorism enhancement is warranted. See Stewart, 590 F.3d at 137
(emphasis added) (quoting 18 U.S.C. §
2332b(g)(5)(A)). Where, however, “there is no evidence that the
defendant sought to influence or affect the conduct of the government,” the
enhancement is inapplicable. Id.
(internal quotation marks omitted).
[33] [34] Most cases applying the terrorism
enhancement have involved conduct that spanned a significantly greater length
of time than the conduct here. See, e.g., Awan, 607 F.3d at 310–11;
United States v.
Salim, 549 F.3d 67, 70–71 (2d Cir.2008); In re Terrorist
Bombings, 552 F.3d at 103–05 (2d Cir.2008); United States v.
Meskini, 319 F.3d 88, 90–91 (2d Cir.2003). Relying on this
observation, Siddiqui argues that “calculation,” as used in the enhancement,
incorporates a long-term planning requirement. We disagree. That long-term
planning is present in many of the cases applying the terrorism enhancement
does not make it a condition necessary to finding that a defendant’s offense
was calculated to influence government conduct or to retaliate against a
government. Instead, the terrorism enhancement is applicable where a defendant
acts according to a plan—whether developed over a long period of time or
developed in a span of seconds—with the object of influencing government
conduct or retaliating against a government.
The day before the shooting incident here, Siddiqui
repeatedly implored Afghan police officials not to turn her over to American
forces. Siddiqui gained control of an M–4 rifle and fired on the American
interview team attempting to take her into United States custody the following
day. Under these circumstances, the district court did not clearly err14 in its determination that Siddiqui’s offense was
calculated to influence government conduct—i.e., the United States’ attempts to
take Siddiqui into custody—by intimidation or coercion.
We also find that the district court did not clearly err
in determining that Siddiqui’s offense was calculated to retaliate against the
United States. While in Afghan custody prior to the shooting incident, Siddiqui
referred to the United States as invaders, and when queried about the
bomb-making documents found in her possession, Siddiqui indicated that *710 the target of those bombs were “the
foreigners.” See JA 3022. What’s more, shortly after firing on the
American interview team, Siddiqui stated: “I am going to kill all you
Americans. You are going to die by my blood”; “death to America”; and “I will
kill all you motherfuckers.” Taken as a whole, this evidence provides a
sufficient factual basis for the district court’s conclusion that Siddiqui’s
offense was calculated to retaliate against the United States.
Accordingly, the district court did not err in applying
the terrorism enhancement.
III. CONCLUSION
For the foregoing reasons, and for the reasons provided
in the accompanying summary order, Siddiqui’s convictions and sentence are
hereby affirmed.
699 F.3d 690, 89 Fed. R. Evid. Serv. 1097, 85 A.L.R. Fed.
2d 611