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Comments on Criminal Issues
August 15, 2007
TERRORISM SENTENCING ENHANCEMENT
Federal Criminal Lawyers Must be Prepared to Fight the Terrorism Sentencing Enhancement Found in USSG § 3A1.4.
Sabri Benkahla was convicted on charges of making false statements to a federal grand jury and lying to the FBI and for obstructing justice with statements that he had never seen or received military-type training in Pakistan and possibly Afghanistan in 1999. See, United States v. Benkahla, 2007 WL 2254657 (E.D.Va. Aug. 3, 2007).
According to the federal district court, Sabri Benkahla was not a terrorist. He had never committed a criminal act outside of the convictions specified above. He is an American citizen who was born and reared in Northern Virginia. He graduated from high school and received a Master’s degree from the John Hopkins University. He excelled at both levels of education. At the time of his arrest he had very strong, and positive, relationships with family, friends, and the community. Prior to his sentencing the U.S. District Court received more letters supporting Benkahla than it had any other defendant in twenty-five years. All the communications to the court attested to his “honor, moral character, opposition to extremism, and devotion with civic duty.” Id., at WL 10-12.
The Government was not impressed with Benkahla’s personal background. Its prosecutors considered him a “terrorist” notwithstanding the court’s findings. They sought “terrorism enhancement” under USSG § 3A1.4. This guideline is the most severe of all the sentencing enhancement guidelines. It
Increases both the offense level and criminal history category for defendants convicted of a felony “that involved, or was intended to promote, a federal crime of terrorism.” To illustrate how draconian this guideline is one only has to look at Benkahla’s case. Absent the guideline, he was facing a sentence in the range of 32 to 41 months. Application of § 3A1.4 increased his sentence exposure to 210 to 262 months. Id., at WL 2. As the court noted: “The effect of the enhancement is unequivocally severe, as its application maximizes a defendant’s criminal history category to Category VI [even if the defendant has no criminal history], and increases the offense level to a minimum of thirty-two “ Id.
The interesting thing about Bankahla offenses is that they neither directly “involved” nor were “intended to promote” a federal crime of terrorism. The Government invoked Application Note 2 of § 3A1.4 which provides that “an offense that involved (A) harboring or concealing a terrorist who committed a federal crime of terrorism (such as an offense under 18 U.S.C. § 2339 or 2339A); or (B) obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that crime of terrorism.”
The Court in Bankahla found that no court had ever applied the enhancement for “obstructing an investigation of a federal crime of terrorism” and the Government had invoked Application Note 2 in only two cases. Id., at WL at 2. See also: United States v. Biheiri, 356 F.Supp.2d 589 (E.D.Va.2005); United States v. Arnout, 282 F.Supp.2d 838, 846 (N.D.Ill.2003).
The court added that Application Note 2 is proper only when the offense for which a defendant has been convicted involved (1) an “investigation of a federal crime of terrorism” and (2) “obstructing” that investigation. The court then pointed out that the guidelines fail to offer any instruction as to what constitutes “an investigation of a federal crime of terrorism” or what “obstructing” means. The court, therefore, found itself in the position of having to define “the limits of these two terms …” Id., In that regard, the court considered the definition of a “federal crime of terrorism” under 18 U.S.C. § 2332b(g)(5), the full text of § 3A1.4, and the intended scope of § 3A1.4. Id.
With respect to § 3A1.4, a “federal crime of terrorism” is defined as “an offense that—(A) is calculated to influence or affect the conduct of government intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of—[a list of enumerated offenses].” 18 U.S.C. § 2332b(g)(5). Id., at WL 3. Under these requirements, Application Note 2 is proper only when: “(1) an investigation into one or more of the enumerated crimes listed in the statute; and (2) that the investigated crimes satisfy the motivational element; namely, that they are ‘calculated to influence or affected the conduct of government by intimidation or coercion’.” Id., WL at 3. See also: 18 U.S.C. § 2332b(g)(5).
The Court in Benkahla found the first requirement simple: As long as the crime(s) being investigated by a grand jury or investigating agency was one of the offenses enumerated under § 2332b(g)(5), the requirement was satisfied. Id. Relative to the second requirement, the court held:
With respect to the motivational element, however, the inquiry is considerably more complex. As conceded at sentencing, the Government must show that the potential violations that were the subject of the investigation were "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)(B) . In the context of an investigation into a specific offense, potential or completed, this requirement is of little consequence. For investigations into specific offenses, such as a plot to bomb a government building with explosives, they are detailed by a discrete set of facts and circumstances. Such facts and circumstances could include: who specifically was being investigated, what offense or offenses were the subject of the investigation, and what was the motivation for committing the offense. In the context of an investigation into specific, discrete offenses, the Government would be able meet its burden by pointing to these specific facts and circumstances to demonstrate that the particular offenses subject of the investigation were "calculated to influence or affect the conduct of government."
However, in the context of a general, wide-ranging investigation, such demonstration is not possible. In such an investigation, the Government cannot state with any degree of precision what potential violations they are investigating, but it is simply hoping to gain information that would be potentially helpful for intelligence or prosecutorial purposes in the United States' ongoing struggle against terrorism. If the Government cannot point to any specific offenses that it is investigating, it obviously cannot point to any facts or circumstances to show whether those violations were "calculated to influence or affect the conduct of government," and thus, it cannot meet its burden. [FN4] Since the Government cannot meet this burden in a general investigatory context, then it must also be concluded that obstructing a general terrorism investigation cannot support the proper application of the terrorism enhancement. Therefore, the enhancement's application is appropriate only by obstructing sufficiently specific investigations into particular offenses within a discrete set of facts. Id. [Emphasis added]
The court added that § 3A1.4 supported the same conclusion that an obstruction does not occur in a “general terrorism investigation.” Application Note 2 informs that an offense which “involved … obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote that federal crime of terrorism.” The court pointed out that the phrase “that federal crime of terrorism” refers to a “specific, single federal crime of terrorism.” Id., WL at 4. By using the word “that,” the U.S. Sentencing Commission clearly intended that an enhancement under Application Note 2 is applicable only when the defendant obstructs an investigation involving a specific, distinct offense. Id.. As the Bankahla court said:
If the enhancement could be applied to the obstruction of a general, wide-ranging terrorism investigation with no specific offenses as a target, courts could not state with any particularity "which " federal crime of terrorism a defendant intended to promote. See, e.g., See United States v. Graham, 275 F.3d 490, 516 (6th Cir.2002) (holding that a district court must identify with particularity which "federal crime of terrorism" a defendant intended to promote). Id.
The court significantly pointed out that every reference to “federal crime of terrorism” within § 3A1.4 was made in the singular form. There are no references to “crimes” of terrorism. If there had been a reference to “crimes” of terrorism, the government could appropriate argue for enhancement under Application Note 2 to “general terrorism investigations.” Id. However, the court said, Application Note 2 applies only to a “sufficiently specific investigation into a particular offense” under the text of § 3A1.4 and § 2332b(g)(5). Id., WL at 5.
The court then addressed the issue of whether the investigation Bankahla allegedly obstructed was sufficiently specific under the mandate of 3A1.4.
The Government argued that:
Defendant was questioned in the course of an investigation of violations of 18 U.S.C. §§ 2339A and 2339B --offenses that relate to providing material support to terrorists and terrorist organizations and are specifically enumerated in the statute. Additionally, the superseding indictment specifically alleges that the grand jury before which Defendant testified was "conducting an investigation to determine whether violations of ... Title 18, United States Code, Sections ... 2339A , or 2339B had been committed, and to identify the persons who had committed ... such violations." (Superseding Indictment at 1). Finally, the evidence at trial established that allegations of material support to terrorists or terrorist organizations were within the scope of the investigation. Therefore, the Government has demonstrated that the investigation was focused on one of the enumerated offenses listed in § 2332b (g)(5) .
The court pointed out that the Government had to prove, with respect to the motivational element, that the potential violations being investigated were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” as proscribed by 18 U.S.C. § 2332b(g)(5). The court addressed this issue as follows:
The critical question upon which this issue turns can therefore be articulated as follows: was the investigation in this case of specific, discrete offenses such that the Government can meet its burden to prove that those crimes were "calculated to affect the conduct of government?" Or, was it more representative of a far-ranging general investigation in which the Government sought information possessed by Defendant about Lashkar-e-Taiba? The question is admittedly close, and the Court has no delusions of this case resembling either end of the spectrum: an investigation into a single, discrete offense or a blind "fishing" expedition.
At trial, at sentencing, and elsewhere in its pleadings, the Government has enumerated specific, potential violations that were also part of the investigation. In the same investigation in which Defendant was questioned, eight individuals to whom he was connected went to foreign jihad training camps and one was convicted of soliciting treason to fight against the United States. Additionally, the Government was able to secure their cooperative testimony leading to convictions for specific terrorist acts in Australia, France, and England. Most notable, however, is that, at the time Defendant was questioned, Ali Al-Timimi and Ahmed Abu-Ali were yet to be indicted, and were under investigation for Conspiracy to Levy War against the United States and Conspiracy to Assassinate the President of the United States, respectively. Defendant had relationships with both. Defendant frequented Dar al-Arqam when al-Timimi was speaking and had sought his advice and counsel. Additionally, Defendant made a speech on at least one occasion at the Dar al-Arqam Mosque during Al-Timimi's lecture series: "Signs Before the Day of Judgment." Additionally, evidence demonstrates that Defendant had met Abu-Ali in Northern Virginia and also studied together in Saudi Arabia. In this investigation, the Government sought any information regarding Al-Timimi and Abu-Ali in addition to other persons that would be helpful in the prosecution for the specific offenses for which they were being investigated. Id., at WL 5-6.
The court also noted that it had been established at trial that Bankahla had attended numerous lectures by Ali Al-Timimi and had studied in Saudia Arabia with Ahmed Abu-Ali. The court also embraced the “specific facts and circumstances surrounding the targeted offenses” the Government used to show that they were “calculated to influence or affect the conduct of government.” Id., WL at 6. The court concluded that the investigation was “sufficiently specific” to classify as an “investigation of a federal crime of terrorism” within the meaning of § 3A1.4.
The court next addressed the “obstruction” issue:
Despite the paucity of case law with respect to the terrorism enhancement and the application of Note 2, this Court has already addressed the bounds of the term "obstructing" under § 3A1.4 in United States v. Biheiri, 356 F.Supp.2d 589 (E.D.Va.2005) ("Biheiri III "). In Biheiri III, the government sought the terrorism enhancement in the obstruction context after two previous failed attempts. See United States v. Biheiri, 299 F.Supp.2d 599 (E.D.Va.2004); United States Biheiri, 341 F.Supp.2d 593 (E .D.Va.2005) . In the third attempt, the government argued that the defendant obstructed a terrorist-financing investigation by lying about his relationship with an individual named Marzook that was affiliated with a terrorist organization. Biheiri III, 356 F.Supp.2d at 598 . The disputed issue in the enhancement's application was "whether § 3A1.4 requires a showing that actual obstruction or merely the attempt to obstruct." Id.
This Court held that "the plain language of § 3A1.4 makes clear that actual obstruction is required." Id. Since § 3A1.4 omits any mention of an attempt to obstruction, unlike the general obstruction of justice enhancement (§ 3C1.1) and the federal obstruction of justice statute (18 U.S.C. § 1503) , an attempt to obstruct an investigation is not enough. Id. Therefore, to receive an enhancement under § 3A1.4, the government must show that defendant actually obstructed an investigation of a federal crime of terrorism. Id., WL at 7.
The court, accordingly, made it clear that actual obstruction is required – and the Government must establish it by a preponderance of the evidence. In support of this evidentiary burden, the Government presented testimony that the FBI investigation sought information regarding: “(1) the Northwest Frontier Province of Pakistan; (2) the Lashkar-e-Taiba training camps; (3) specific individuals believed to have participated in jihad training camps; and (4) specific individuals believed to have aided others in obtaining jihad training. The Government contends that Defendant's false statements hindered and impeded the FBI's ability to discover details about Lashkar-e-Taiba training camps, including facilitators, attendees, trainers, training techniques, curriculum, and locations. See (Decl. of Agent Kneisler). Finally, Defendant lied about his activities while in Pakistan, as he represented that he spent five days at a facility in Islamabad that was affiliated with the American Embassy. After expending significant resources, the Government was able to affirmatively prove that Defendant never attended any such center, and that he was unaccounted for during this period of time.” Id., WL at 8.
The court found that these false statements “actually obstructed” the Government’s investigation. The jury had already found beyond a reasonable doubt that Bankahla made false or misleading statements “with respect to his participation at a jihad training camp as well as the identity of individuals with whom he had interacted that were thought to have ties to jihad training camps.” Id. The court added that because of Bankahla’s “false or intentionally misleading answers, the Government still does not know the identity or whereabouts of the persons about whom Defendant was questioned, their involvement with Lashkar-e-Taiba, and their role in aiding persons to obtain jihad training. Since Defendant gave false and misleading answers in the investigation, and the Government did not, and in some cases, still does not, possess the specific information which it sought, the Court concludes that Defendant actually obstructed the FBI's investigation.” Id.
That did not end the inquiry for the court. Having found that Application Note 2 applied to Benkahla, the court had to determine whether a sentence within the terrorism enhancement range served the “factors” set forth in 18 U.S.C. § 3553(a). This statute imposes a mandate on the court to impose a
Sentence sufficient but not greater than necessary to: (1) reflect the seriousness of the offense; (2) promote respect for the law; (3) provide just punishment; (4) afford adequate deterrence; (5) protect the public; and (6) provide the defendant with treatment (which is not at issue here). See: 18 U.S.C. § 3553(a)(2). See also: Id., WL at 12; United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006)..
The court found that to fulfill the objective of § 3553(a)(2), USSG § 4A1.3 authorizes a sentencing court to depart downward from the recommended sentence “if reliable information indicates that defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”
The Government objected to a § 4A1.3 downward departure on the grounds that “it was inconsistent with the application of the terrorism enhancement. The Government argued that since the enhancement specifies a criminal history category of VI, irrespective of a defendant's actual criminal history score, it removes the discretion of the Court to downward depart on the basis of his criminal history.” Id., at WL 9.
The Court rejected the Government’s argument for the following reasons:
First, no text within § 4A1.3 restricts or prohibits its application after the application of the § 3A1.4 enhancement. Several guidelines other than 3A1.4 prescribe specific criminal history categories such as: § 4B1.1 ("career offenders" are category VI); § 4B1.4("armed career criminals" are category IV at minimum); and § 4B1.5("repeat and dangerous sex offenders" are category V at minimum). Notably, § 4A1.3 explicitly restricts or prohibits its application in the event that one of these other guidelines apply. Specifically, § 4A1.3 prohibits a downward departure in the cases of armed career criminals under § 4B1.4 and repeat sex offenders under § 4B1.5, and limits downward departures to one category at most in the case of a career offender. Unlike with the other guidelines that specify a criminal history category, § 3A1.4 is listed nowhere in the guideline or its application notes. Without any prohibition or limitation, it is clear that the Commission did not intend to restrict a court's discretion with respect to criminal history downward departure under § 3A1.4.
In addition, although the Fourth Circuit has not had the opportunity to address this issue, the Second Circuit recognizes a court's discretion to downward depart on the basis of criminal history after the application of the terrorism enhancement. In United States v. Meskini, the court held that "[a] judge determining that § 3A1.4(b) over-represents the seriousness of defendant's past criminal conduct or the likelihood that defendant will commit other crimes always has the discretion under § 4A1.3 to depart downward in sentencing." 319 F.3d 88, 92 (2nd Cir.2003) . Therefore, despite § 3A1.4's provision of a uniform criminal history category, a court may still vary from that category based upon the concerns in § 4A1.3 . Id.
Having concluded that it had the authority under § 4A1.3 to depart downward, the court found that a downward departure was warranted in Bankahla case because: (1) he had no criminal record and the Government had not offered any evidence that he had ever committed an illegal act in his life outside the conduct for which he was convicted; (2) the criminal history score of VI mandated by § 3A1.4 over-represented the likelihood that Bankahla would commit other crimes; and (3) the objective of § 3553(a)(2) would be served. Id., WL 10-11. The court summarized its position:
[A]lthough Defendant "actually" obstructed the investigation, and the Government still does not have information about some of the individuals it was investigating, the extent of Defendant's actual obstruction was hardly devastating to the investigation. Defendant was not the lynchpin in any organization or conspiracy being investigated, and the Government still achieved successful prosecutions of multiple persons with whom Defendant was affiliated.
Finally, the Court is unaware of any case in which a defendant has received 210 months (17.5 years) for lying to a grand jury and an FBI agent. Convictions for obstruction of justice and false declarations routinely lead to considerably lesser sentences of imprisonment. [FN9] This is likely because the nature of making false statements is not considered as serious a crime as the Defendant's guideline range indicates. Therefore, the nature and circumstances of Defendant's criminal conduct clearly weigh heavily in favor of a sentence outside Defendant's guideline range. Id., WL at 11.
The court concluded by saying that at an offense level 32 and a category I, Bankahla should be placed within a guideline range of 121 to 151 months, and, accordingly, sentenced him to 121 months. The court said the ten year sentence “clearly reflects the seriousness of the offense, promotes respect for the law, provides sufficient punishment, and affords adequate deterrence. Additionally, considering Defendant's negligible likelihood of recidivism, there is little concern to protect the public from any further crimes.” Id., WL at 12.
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