UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
July 17, 2007
UNITED STATES OF AMERICA
KHALID AWAN, DEFENDANT.
The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
After a jury trial, defendant Khalid Awan was found guilty on December 20, 2006 of (1) one count of conspiring to provide material support and resources, knowing and intending that such support would be used in preparation for and in carrying out a conspiracy to murder, kidnap or maim a person or persons outside of the United States, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 956(a); (2) one count of providing material support and resources, knowing and intending that such support would be used in preparation for and in carrying out a conspiracy to murder, kidnap or maim a person or persons outside of the United States, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 956(a); and (3) one count of knowingly and intentionally transporting, transmitting and transferring monetary instruments and funds from a place in the United States to a place outside the United States, with the intention of promoting an offense against foreign nation, involving murder and destruction of property by means of explosive or fire in violation of 18 U.S.C. § 1956(a)(2)(A).*fn1 This matter is now before the Court to consider legal and factual objections to the Pre-Sentence Report. What follows are the findings of fact and conclusions of law with the respect to the application of the Sentencing Guidelines.*fn2
The underlying facts of this case have been discussed at length in this Court's previous decisions and familiarity is presumed. Only those facts relevant to defendant's sentencing are discussed herein.
The Pre-Sentence Report ("PSR") prepared by the Probation Department recommends an adjusted offense level of 45 with a criminal history category of VI.*fn3 This Guidelines calculation calls for a sentence of life imprisonment. However, since the statutory maximum for the crimes for which defendant was convicted is 45 years,*fn4 the effective Guidelines call for a sentence of 45 years in prison.
The government has requested the effective Guidelines sentence. Defendant objects and argues that the adjusted offense level should be 17 with a criminal history category of II, resulting in an effective Guidelines range of 27 to 33 months.*fn5
Section § 3A1.4 states: "(a) If the offense is a felony that involved, or was intended to promote,*fn6 a federal crime of terrorism, increase [the offense level] by 12 levels. (b) In each such case, the defendant's criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI." Thus, under a Guidelines sentence, a defendant convicted of a "federal crime of terrorism" is subject to enhancements impacting both his offense levels and his criminal history category.
Application Note 1 for this section states that a "federal crime of terrorism" has the meaning given that term in 18 U.S.C. 2332b(g)(5), which in turn defines a "federal crime of terrorism" as "an offense that (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of . . . 2339A (relating to providing material support to terrorists)."
History of the Terrorism Enhancement
Guideline Section 3A1.4 took effect in November, 1995, replacing an older policy statement that allowed for upward departure "[i]f the defendant committed the offense in furtherance of a terroristic action." U.S.S.G. § 5K2.15 (deleted effective Nov. 1, 1995).
There is limited legislative or administrative history discussing how and why this sentencing enhancement came into being. The idea of creating a more formal terrorism enhancement to the Guidelines appears to have been initiated in 1991. On March 12, 1991, the Senate introduced S. 635, entitled the Comprehensive Violent Crime Control Act of 1991. Section 738 of that bill contained the following directions to the Sentencing Commission:
The United States Sentencing Commission is directed to amend its sentencing guidelines to provide an increase of not less than three levels in the base offense level for any felony, whether committed within or outside of the United States, that involves or is intended to promote international terrorism, unless such involvement or intent is itself an element or the crime.
S. 738, 102d Cong. § 738 (1991); see U.S. v. Graham, 275 F.3d 490, 529 (6th Cir. 2001).
That bill did not become law and no further action was taken on this matter until Congress began consideration of the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA") in late 1993. In November 1993, Section 120004 was included in the VCCLEA, which directed the Sentencing Commission to "amend its sentencing guidelines to provide an appropriate enhancement for any felony, whether committed within or outside the United States, that involves or is intended to promote international terrorism, unless such involvement or intent is itself an element of the crime."*fn7*fn8 139 Cong. Rec. S17095-03, S17116 (Nov. 24, 1993); see Graham, 275 F.3d at 531.
The VCCLEA was signed into law and, in response, the Sentencing Commission adopted § 3A1.4, which applied the criminal history and twelve point offense level enhancements when "the offense is a felony that involved, or was intended to promote, international terrorism."*fn9 The effective date of this provision was November 1, 1995.*fn10
In 1996, in Section 730 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress instructed the Sentencing Commission to revise § 3A1.4 so that it "only applies to federal crimes of terrorism, as defined in § 2332b(g) of Title 18, United States Code." The Conference Report on this bill notes that this amendment "will make that new provision applicable only to those specifically listed federal crimes of terrorism, upon conviction of those crimes with the necessary motivational element to be established at the sentencing phase of the prosecution, without having to wait until November 1996 for the change to become law." 142 Cong. Rec. H3305-01, H3337 (April 15, 1996) (emphasis added).*fn11 AEDPA was signed into law in April 1996 and § 3A1.4 was accordingly amended by the Sentencing Commission, effective November 1, 1996, to apply to a crime which "involved, or was intended to promote, a federal crime of terrorism," defined in Application Note 1 to refer to 18 U.S.C. § 2332b(g).
I. Section 3A1.4 Terrorism Enhancement
Burden of Proof
Although the parties have not discussed this issue, the Second Circuit has held that in determining the appropriate Guidelines range at sentencing, a district court is required to find facts using a 'preponderance of the evidence' standard and not a 'clear and convincing' standard. See U.S. v. CordobaMurgas, 233 F.3d 704, 709 (2d Cir. 2000) (noting that district courts are "required to employ the preponderance of the evidence standard rather than the clear and convincing standard, and that the holding of U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which "expressed concern that, in some cases, establishing facts pertinent to sentencing but not resulting in conviction by a preponderance of the evidence can create the potential for significant unfairness," has not been adopted by this Circuit.); U.S. v. Salazar, 2007 WL 1704095, at *3 (2d Cir. 2007) ("[T]he district court was required to use the preponderance of the evidence standard, as it did, in finding facts relevant to sentencing for Guidelines calculation purposes."); U.S. v. Salim, 287 F.Supp.2d 250, 324 (S.D.N.Y. 2003) (In a case applying the terrorism enchantment, finding that "the Second Circuit's unequivocal language on the requisite burden of proof leaves this court no discretion to require the Government to meet a higher burden than a preponderance of the evidence.").*fn12
Defendant's Constitutional Challenges
Defendant raises two constitutional challenges to the application of § 3A1.4 to his case. Defendant first argues that judicial imposition of the terrorism enhancement will violate his right to trial by jury. See Blakely v. Washington, 542 U.S. 296 (2004). However, in U.S. v. Crosby, 397 F.3d 103, (2d Cir. 2005), the Second Circuit explained that though the Court [in U.S. v. Booker, 543 U.S. 220 (2005)] . . . prohibits a sentencing judge from finding any facts that enhanced a Guidelines sentence above the range that is based solely on facts found by the jury in its verdict or admitted by the defendant . . . with the mandatory use of the Guidelines excised, the traditional authority of a sentencing judge to find all facts relevant to sentencing will encounter no Sixth Amendment objection. Thus, the sentencing judge will be entitled to find all of the facts that the Guidelines make relevant to the determination of a Guidelines sentence and all of the facts relevant to the determination of a non-Guidelines sentence.
Crosby, 397 F.3d at 112. Thus, there is no Sixth Amendment issue with judicial fact-finding of sentencing factors "as long as such fact-finding does not increase the maximum lawful sentence." U.S. v. Vondette, 2007 WL 1120432, at *4 (E.D.N.Y. 2007). In the present case, I am permitted to find the facts which result in any sentence up the statutory maximum of 45 years.
The second constitutional challenge raised by the defendant is that the "double application of the 'terrorism enhancement' for both offense level and criminal history will violate Mr. Awan's constitutional right to due process."*fn13 However, the Second Circuit in U.S. v. Meskini, 319 F.3d 88 (2d Cir. 2003) has already concluded that there is no due process concern with the double enhancement. In Meskini, the district court added twelve points to the defendant's offense level and raised his criminal history from I to VI, pursuant to § 3A1.4. Defendant appealed on due process grounds, arguing that the statute constituted an impermissible 'double counting.' The Second Circuit recognized that the double enhancement was clearly called for in § 3A1.4 which "directs courts to increase both the offense level and the criminal history category based on a single crime involving terrorism," and that "'[t]o sustain a federal sentencing statute against a due process . . . challenge, courts need only find that Congress had a rational basis for its choice of penalties.'" Id. at 91-92 (quoting U.S v. Proyect, 989 F.2d 84, 88 (2d Cir. 1993) (internal quotations omitted)).*fn14 The Court went on to hold that
Congress and the Sentencing Commission had a rational basis for concluding that an act of terrorism represents a particularly grave threat because of the dangerousness of the crime and the difficulty of deterring and rehabilitating the criminal, and thus that terrorists and their supporters should be incapacitated for a longer period of time. Thus, the terrorism guideline legitimately considers a single act of terrorism for both the offense level and the criminal history category . . . . Congress and the Sentencing Commission had a rational basis for creating a uniform criminal history category for all terrorists under § 3A1.4(b), because even terrorists with no prior criminal behavior are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.
Id. at 92. Accordingly, there is no due process concern with regards to the double enhancement requested by the government.
Proof of Motivational Element
As previously noted, and as conceded by the government, a "federal crime of terrorism" under § 2332b requires both the commission of one of the enumerated crimes*fn15 and a finding that the required motivational element set forth in § 2332b(g)(5)(A) has been met, namely, that defendant's actions were "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct."*fn16 See Graham, 275 F.3d at 517 (district court must conclude that the crimes "satisf[ied] the elements of § 2332b(g)(5)(A), and support its conclusions by a preponderance of the evidence with facts from the record."); U.S. v. Leahy, 169 F.3d 433, 446 (7th Cir. 1999) (vacating sentence where district court used § 3A1.4 as an analogous sentencing factor for possession of a deadly toxin in violation of 18 U.S.C. § 175(a), because there was "absolutely no evidence in the record that Leahy sought to influence or affect the conduct of the government").*fn17
In the present case, the evidence presented at trial and information contained in the PSR do not persuade me that defendant's actions were "calculated to influence or affect the conduct of government."*fn18 While the evidence at trial establishes that defendant provided funds to the KCF and that he knew what the KCF was likely to do with those funds, it is speculative to conclude that the defendant had any particular motive in mind and, in particular, that he was motivated by a desire to influence the policies of the Indian government or retaliate for some unspecified wrong.*fn19 On the contrary, the evidence supports of a factual finding that the defendant had private purposes in mind, that he enjoyed associating with terrorists such as enjoying the prestige or potential influence obtained by associating with Panjwar, a leader of the KCF, and with the Pakistani intelligence services, the so called ISI.*fn20
Indeed, the government itself has previously referred to this motivation. When defendant raised the issue of motivation in his Rule 29 motion, the government first argued (correctly) that there was no need to establish motive to establish criminal intent and then further argued that based on defendant's statement that he wanted to associate with "terrorists," "one motive for supporting Panjwar was a desire to associate with people he considered influential and important." Government's Rule 29 Brief, p.34. Since I cannot find from the evidence before me that defendant was motivated by a desire to influence or retaliate against the Indian government, the motivational element of a "federal crime of terrorism" is not demonstrated by a preponderance of the evidence and the terrorist enhancements will not be applied.*fn21
II. Other Grounds for Departure
1) Criminal History
Excluding the terrorism enhancement, the PSR calculates a criminal history category of III*fn22 based on three criminal history points for defendant's earlier offense and two criminal history points for the commission of the instant offense, specifically the 2003 recruiting of Harjit Singh to fight for the KCF, while under "a criminal justice sentence." U.S.S.G. § 4A1.1(d). Defendant objects to the addition of the latter two criminal history points*fn23 and contends (1) that since Count Two charged the defendant with providing both money (prior to his incarceration) and personnel (during his incarceration), the jury's finding of guilt does not demonstrate that the jury found the defendant guilty of recruiting Harjit Singh and (2) that there was no credible evidence at trial that defendant committed any of the charged offenses while in custody for the prior offense.
However, while it is true that one cannot be certain what the jury found, as described above judicial fact-finding of sentencing factors is permissible so long as the sentence does not exceed the statutory maximum. In the present case, the evidence introduced at trial, specifically Harjit Singh's testimony, demonstrates that defendant did indeed attempt to recruit Harjit Singh, in violation of § 2339A, beginning in or around June 2003 while defendant was incarcerated after a plea of guilty to credit card fraud. Accordingly, two additional criminal history points should be applied pursuant to § 4A1.1(d), resulting in a criminal history category of III.
2) Offense Level
Excluding the terrorism enhancement, the PSR calculates an offense level of 33. The Guideline for a violation of § 2339A*fn24 is § 2X2.1 (aiding and abetting),*fn25 which applies an offense level equal to the offense level for the underlying offense which the defendant materially supported. The underlying offense in this count is 18 U.S.C. § 956(a), which makes it a crime to "conspire . . . to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States," and since the Guideline for a conspiracy to murder provides for a base offense level of 33 and since there were no other adjustments applicable to defendant,*fn26 the recommended adjusted offense level in the PSR is 33. See U.S.S.G. § 2A1.5 (conspiracy to murder). Defendant objects to this calculation and argues that since the jury did not specifically find the goal of the conspiracy, whether it was to murder, kidnap or maim, I should apply the rule of lenity and punish according to the least severe underlying crime, namely a conspiracy to maim, which, according to defendant, provides for a base offense level of fourteen and a specific offense characteristic adjustment of three. See U.S.S.G. § 2A2.2 (aggravated assault).*fn27
However, the evidence introduced at trial demonstrates that there not only existed a conspiracy but that the object of the conspiracy was to murder people in India.*fn28 Iqbal Singh, an Indian police detective who was admitted as an expert witness, testified that the KCF had engaged in deadly attacks, primarily through the use of bombs, against civilians and government authorities from its inception until, most recently, 2006. Transcript of Record at 345-55. Gurbax Singh testified that he was collecting money in the United States, which defendant transmitted to the KCF, for "bomb blasts" in India. Transcript of Record at 198, 208, 212-17. Harjit Singh testified that the defendant told him that Paramjit Singh Panjwar, the leader of the KCF, had been involved in various murderous attacks and that if Harjit joined the KCF he would be taught how to make a "bomb blast." Transcript of Record at 675-80, 683, 723, 736, 751-58, 767-68. John Ross, a government investigator, testified that defendant told him that the Panjwar had been involved in killing people in India and that the money defendant sent was to be used for "shooting and killing of innocent people in India." Transcript of Record at 896-899, 901-02, 914. The sum of this testimony establishes that the conspiracy supported by the defendant through his financial support and recruiting of Harjit Singh had as its aim the murder of Indian citizens. Accordingly, U.S.S.G. § 2A1.5 applies.*fn29
3) Concurrent Terms
When a defendant is "already subject to an undischarged term of imprisonment" a district court has discretion to impose a sentence which runs concurrently to the undischarged term "to achieve a reasonable punishment for the instant offense."
U.S.S.G. § 5G1.3(c); See 18 U.S.C. § 3584(a) ("if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively"); 18 U.S.C. § 3584(b) (to determine whether to impose a concurrent sentence, the court "shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a)."); U.S. v. Matera, 2007 WL 1546018, at *7 (2d Cir. 2007). Further, when a sentencing court is deprived of the opportunity to impose a concurrent sentence due to the unreasonable delay of the prosecution in bringing the charge which results in a "missed opportunity for concurrent sentencing," the court may depart pursuant to U.S.S.G. § 5K2.0 to account for the concurrent sentence it would have imposed has the case been brought with appropriate expediency. U.S. v. Los Santos, 283 F.3d 422, 428 (2d Cir. 2002) (noting that such a "delay takes the case out of the heartland," but declining "to establish a bright line rule by speculating on how much longer [than four months] the government could have waited before the delay would have been out of the realm of reasonableness.").
In the present case, to achieve a "reasonable punishment" for the instant offense, and in particular to "reflect the seriousness of the offense . . . and to provide just punishment for the offense," pursuant to § 3553(a)(2)(A), I, had I been given the opportunity, would have ordered defendant's sentence for the instant offense to run concurrently with the time remaining on his 2001 offense. However, given the circumstances of the government's investigation, I cannot say that the government failed to act with reasonably speed in preparing the case and bringing it to trial.
The government first learned of defendant's affiliations with the KCF and his attempts to recruit Harjit Singh from Harjit in July 2003. The government then proceeded to record phone calls between defendant and Panjwar and to record conversations between defendant and Harjit for several months, and in those calls and conversations, the defendant revealed significant information related to his activities and his relationship with the KCF. The final recorded conversation with Harjit Singh took place on November 6, 2004. In January 2005, defendant was transferred to the Federal Correctional Facility in Allenwood, Pennsylvania. While at Allenwood, the government continued to monitor defendant's calls to try and gain further evidence regarding his financing of Sikh separatists, though no such information was obtained.*fn30 At a certain point, the government determined that there was nothing more to be learned from recording calls made by defendant and, in October 2005, the government began interviewing witnesses.*fn31 Defendant was indicted about six months later, in March 2006.
While the government was in the process of secretly monitoring defendant's calls, a reasonable and logical investigative technique given what defendant had revealed in his conversations with Panjwar, it could not have begun interviewing witnesses without jeopardizing the possibility of obtaining information from defendant's calls, as there was no assurance that the witnesses would not alert the defendant that an investigation had begun.*fn32 Once the government decided it should move on to interviewing witnesses, it completed the process of collecting information, preparing the indictment and presenting it to the Grand Jury in relatively short order.*fn33 As a result, it appears that the process engaged in by the government was not "longer than a reasonable amount of time for the government to have diligently investigated the crime." Los Santos, 283 F.3d 422 at 428. Accordingly, I do not propose to depart pursuant to § 5K2.0.
For the reasons set forth above, defendant's applicable adjusted offense level under the Guidelines is 33 and his criminal history category is II, leading to Guidelines range of 168 to 210 months in prison. The Clerk is directed to transmit a copy of the within to all parties.
Charles P. Sifton United States District Judge