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United States v. Salim

December 2, 2008

UNITED STATES OF AMERICA, APPELLEE-CROSS-APPELLANT,
v.
MAMDOUH MAHMUD SALIM, DEFENDANT-APPELLANT-CROSS-APPELLEE.



SYLLABUS BY THE COURT

Appeal by Defendant Mamdouh Salim from a 32-year sentence, entered in the United States District Court for the Southern District of New York (Deborah A. Batts, Judge), following a guilty plea to conspiracy to murder and attempted murder of a federal official in violation of 18 U.S.C. §§ 1114 and 1117. The United States cross-appeals on the ground that the district court erroneously refused to apply the terrorism sentencing enhancement of section 3A1.4 of the United States Sentencing Guidelines on the basis that the offense conduct did not transcend national boundaries.

VACATED and REMANDED.

The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge

Argued: May 13, 2008

Before NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.

Defendant-Appellant Mamdouh Mahmud Salim ("Salim") appeals from the 32-year sentence imposed in the Southern District of New York (Deborah A. Batts, Judge) following his guilty plea to conspiracy to murder and attempted murder of a federal official in violation of 18 U.S.C. §§ 1114 and 1117. Salim contends that the district court erroneously applied several sentence enhancements under the United States Sentencing Guidelines ("U.S.S.G."), including the enhancements for "Obstructing or Impeding the Administration of Justice," U.S.S.G. § 3C1.1, for an "Official Victim," U.S.S.G. § 3A1.2, and for "Restraint of Victim," U.S.S.G. § 3A1.3. On cross-appeal, the United States contends that the district court erred in failing to apply the "Terrorism" enhancement of U.S.S.G. § 3A1.4, on the basis that the offense conduct did not transcend national boundaries. Because we reject Salim's claims but agree with the government that the terrorism enhancement does not require such transnational conduct, we remand with directions to the district court to vacate the sentence and resentence.

BACKGROUND

In 1999, Salim and others were indicted in the Southern District of New York on charges related to the 1998 U.S. Embassy bombings in Kenya and Tanzania. The case was assigned to Judge Leonard Sand and Salim was housed in the maximum security wing of the Metropolitan Correctional Center (MCC).

On November 1, 2000, Salim stabbed corrections officer Louis Pepe in the eye with a sharpened comb. The charges arising from this attack were ultimately severed from the underlying proceedings before Judge Sand, and, on April 3, 2002, Salim pleaded guilty to conspiring and attempting to murder officer Pepe in violation of 18 U.S.C. §§ 1114 and 1117 before Judge Deborah Batts.

At the ten-day Fatico hearing, see generally United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), the government presented the testimony of seven witnesses, several pieces of forensic evidence, and crime scene photographs to support its theory that Salim and "unspecified others" had concocted and acted upon an elaborate but ultimately fruitless plan to escape the MCC by taking hostages.

Inmates at the MCC were rotated between cells every 21 days. On October 25, 2000 (six days before the attack) Salim was moved from Cell One to Cell Six of Unit 10-South, where his cellmate was Khalfan Mohamed, a co-defendant in the embassy bombings case.

In a pre-hearing submission, Salim contended that he attacked Pepe in an attempt to escape, not to take hostages. During the Fatico hearing, however, Salim's story changed. On direct examination, Salim testified that during the summer of 1999, he had planned to escape the MCC with Mohamed Odeh, another codefendant, but ultimately decided that the escape plan could not work and abandoned it. Instead, Salim claimed, he attacked Pepe to get his keys, unlock a visitation room on 10-South, and attack his attorneys so that they would withdraw from representing him and Judge Sand would have to grant substitute counsel.

Salim claimed that he had grown increasingly frustrated with counsel's performance and had written a letter to Judge Sand on February 22, 2000 requesting substitute counsel. Judge Sand held a hearing and denied the request, telling Salim that it was up to him to solve his problems with his attorneys.

Salim wrote Judge Sand again on September 23 requesting substitute counsel, and on October 2 thanking him for listening to his problems and requesting a hearing before another judge. Judge Sand referred the matter to Magistrate Judge Eaton, who held a hearing on October 26, at which Salim (according to his testimony at the Fatico hearing) insulted his attorneys and asked "Are they waiting until I physically assault them? I didn't say physically, but I said assault." In a letter dated October 27, defendant expressed concern that he would not receive substitute counsel and that he hadn't been given "enough time to express [his] problem with the lawyers."

On October 30, Salim said he received a letter from Magistrate Judge Eaton informing him of "his decision in writing, not only verbally, that he will not allow attorney change." He then concluded that he "only had one recourse, to attack [his lawyers] physically, and in that instance they will be resigning." He complained to his cellmate Mohamed, who agreed to help Salim assault his lawyers, in part to atone for his "sin" of testifying in a way that led to Salim's imprisonment.

On November 1, according to Salim's testimony, Salim was awakened by Pepe, who informed him that his lawyers were in one of 10-South's visitation rooms. Pepe took Salim to the visiting room. He usually met with his lawyers face-to-face, but because Salim said he needed to use the computer, he ended up separated from his attorneys by a screen. Salim then said he needed to get some more material from his cell. As Pepe escorted him to his cell, Salim began singing, which was a prearranged signal to Mohamed to ready himself for the attack. On arriving in Cell Six, Mohamed grabbed Pepe's walkie-talkie, and Salim struck Pepe's legs from behind and sprayed hot sauce in his eyes.*fn1 With Pepe on the floor, Salim attempted to turn him over to get his keys. Salim says he then "became crazy" and stabbed Pepe in the eye with his sharpened comb-knife. The weapon penetrated the corrections officer's eye and entered his brain. Salim then locked Pepe in the cell and started back to the visitation room, at which point other corrections officers arrived and subdued him.

On September 25, 2003, the district court, in a lengthy opinion, rejected the government's theory that Salim's assault on Pepe was motivated by a hostage-taking/escape plan. United States v. Salim ("Salim I"), 287 F. Supp. 2d 250, 300-01 (S.D.N.Y. 2003). The district court concluded that Salim's plan was to attack his attorneys and thereby force Judge Sand to grant his substitution motion. As a result, the district court determined that the attack on Officer Pepe was designed "to influence or affect by intimidation or coercion Judge Sand's decision whether or not to substitute Defendant's counsel and also was calculated to retaliate against judicial recommendations and orders denying Defendant's applications for substitute counsel." Id. at 304. The district court observed that Salim's numerous requests for substitution were denied, showing that Salim knew Judge Sand "had ultimate authority to replace" his attorneys. Id. at 303.

The district court also found that Salim's alternative explanation, that he only wanted to force the attorneys to resign, and was unconcerned with Judge Sand's actions, was "incredible," as "[d]efendant clearly did not believe his attorneys could unilaterally withdraw or resign from his case." Id. at 304.

In calculating Salim's Guidelines sentence, the district court found, inter alia, that a three-level enhancement applied under U.S.S.G. § 3A1.2(a) (the Official Victim enhancement) because "Defendant attacked Officer Pepe while Pepe was performing his official duties," and a two-level enhancement under U.S.S.G. § 3A1.3 (the Restraint enhancement) because "Pepe was physically restrained during the attack." Id. at 308-09.

The district court declined to apply the terrorism enhancement of U.S.S.G. § 3A1.4, which incorporates the term "Federal crime of terrorism" defined in 18 U.S.C. § 2332b(g). In so holding, the district court's decision culminated in the following conclusions:

From the plain text of 18 U.S.C. § 2332b, the following is clear: 1.) Section 2332b(g), which inter alia, sets forth a definition for "Federal crime of terrorism," explicitly directs this definition to be construed "As used in this section;" 2.) Section 2332b(f), wherein the term "Federal crime of terrorism" is used, vests the Attorney General with authority to investigate Federal crimes of terrorism, with such authority being "in addition" to that already available under Title 18; 3.) the Attorney General already has broad authority to investigate crimes under Title 18; 4.) Section 2332b is entitled and addresses "Acts of terrorism transcending national boundaries" (emphasis added); and 5.) Section 2332b(g)(1) recites that "conduct transcending national boundaries" means conduct occurring outside of the United States in addition to the conduct occurring in the United States. From the foregoing, it is apparent that a "Federal crime of terrorism" is one that meets the requirements at § 2332b(g)(5) and involves "conduct transcending national boundaries."

Id. at 339. Because Salim's assault on Officer Pepe did not meet the latter requirement, the district court held that the terrorism ...


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