Excerpt from the Second Circuit opinion:
United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellee,
v.
Abdulrahman FARHANE, also known as “Abderr Farhan,” and Rafiq Sabir, Defendants-Appellants.
Docket Nos. 07-1968-cr (L), 07-5531-cr (CON).
Argued: Feb. 17, 2009.
Decided: Feb. 4, 2011.
In this appeal from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge), defendant Rafiq Sabir contends that (1) 18 U.S.C. § 2339B, under which he was convicted for providing and conspiring to provide material support to a terrorist organization, is unconstitutionally vague and overbroad; (2) the trial evidence was insufficient to support his conviction; (3) the government's use of peremptory juror challenges exhibited racial bias in violation of the Fourteenth Amendment; (4) erroneous evidentiary rulings violated his rights to confrontation and/or a fair trial; (5) the district court abused its discretion in addressing alleged juror misconduct; and (6) the government's rebuttal summation deprived him of a fair trial. We reject these arguments as without merit. AFFIRMED.
Edward D. Wilford (Natali J.H. Todd, on the brief), New York, NY, for Defendant-Appellant.
Jennifer G. Rodgers, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief), on behalf of Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Before WINTER, RAGGI, Circuit Judges, and DEARIE, Chief District Judge.FN1
FN1. Chief District Judge Raymond J. Dearie of the Eastern District of New York, sitting by designation.
Judge RAGGI concurs in part in a separate opinion.
Judge DEARIE dissents in part in a separate opinion.
REENA RAGGI, Circuit Judge:
I.
Background
[5]
A.
2001: The Initial FBI Investigation into Co-Defendant Tarik Shah
[5]
B.
2004: Shah Offers to Support al Qaeda
[6]
C.
2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support
[7]
D.
Prosecution and Conviction
[8]
II.
Discussion
[10]
A.
18 U.S.C. § 2339B Is Not Unconstitutionally Vague as Applied to Sabir's Case
[10]
1.
The Statutory Framework
[10]
2.
Sabir's Vagueness Claim
[13]
a.
Sabir Fails to Demonstrate Facial Vagueness or Overbreadth
[13]
b.
Sabir Fails To Demonstrate that § 2339B Is Unconstitutionally Vague as Applied to his Case
[17]
(1)
Sabir's Vagueness Claim Is Properly Reviewed as Applied
[17]
(2)
The Standards for As-Applied Review
[19]
(3)
Sabir's Vagueness Challenge to the Statutory Proscriptions Fails
[20]
(4)
The “Medicine” Exception Does Not Render § 2339B Unconstitutionally Vague as Applied to Sabir
[25]
B.
The Trial Evidence Was Sufficient To Support Sabir's Conviction
[29]
1.
Count One: Conspiracy
[29]
2.
Count Two: Attempt
[31]
a.
Intent
[31]
b.
Substantial Step
[34]
(1)
The “Substantial Step” Requirement Expands Attempt Beyond the Common Law
[34]
(2)
Identifying a Substantial Step by Reference t o the Crime Being Attempted
[35]
(3)
The Evidence Manifests a Substantial Step Towards the Provision of Material Support in the Form of Personnel
[38]
(4)
The Dissent's Mistaken View of the Substantia l Step Requirement
[40]
(a)
Sabir Did More Than Express a Radical Idea When He Produced Himself as a Doctor Sworn To Work Under the Direction of al Qaeda
[40]
(b)
The Provision of Personnel and the Subsequent Provisio n of Expert Services by Such Personnel Are Distinct Forms of Material Support
[42]
(c)
Upholding Sabir's Attempt Conviction Raises No Double Jeopardy Concerns
[47]
(d)
No Government Conduct Precluded a Jury Finding of a Substantial Step
[49]
C.
The District Court Reasonably Rejected Sabir's Batson Challenge
[50]
1.
Prospective Juror # 5
[53]
2.
Prospective Juror # 26
[54]
3.
Prospective Juror # 27
[56]
D.
Sabir's Evidentiary Challenges Are Uniformly Without Merit
[57]
1.
Expert Witness Testimony
[58]
a.
Kohlmann's Testimony Satisfied the Enumerated Requirements of Rule 702
[59]
b.
Kohlmann's Testimony Was Helpful to the Jury
[60]
c.
Kohlmann's Testimony Was Relevant
[61]
d.
Kohlmann's Testimony Did Not Reach Beyond the Government's Rule 16 Proffer
[62]
2.
Co-Conspirator Statements
[63]
a.
Shah's Recorded Conversations with the Informant and the Undercover Were Admissible Under Fed.R.Evid. 801(d)(2)(E)
[63]
b.
The Admission of Shah's Statements Did Not Viola te Sabir's Right to Confrontation
[67]
3.
Prior Inconsistent Statement
[67]
4.
State-of-Mind Evidence
[69]
5.
Rule 403 Objections
[71]
a.
The Shareef Materials
[71]
b.
The Poughkeepsie Mosque Incident
[72]
c.
Mujahideen Activities in Bosnia
[73]
E.
Summation Issues
[73]
F.
Juror Misconduct
[78]
III.
Conclusion
[83]
*1 Defendant Rafiq Sabir, whose birth name is Rene Wright, is a United States citizen and licensed physician who, in May 2005, swore an oath of allegiance to al Qaeda and promised to be on call to treat wounded members of that terrorist organization in Saudi Arabia. Convicted after a jury trial in the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge ) of conspiring to provide and actually providing or attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B, and sentenced to a 300-month term of incarceration, Sabir now challenges his conviction on various grounds. Specifically, he contends that (1) § 2339B is unconstitutionally vague and overbroad, (2) the trial evidence was insufficient to support his conviction, (3) the prosecution's peremptory jury challenges exhibited racial bias, (4) evidentiary rulings deprived him of the right of confrontation and/or a fair trial, (5) the district court abused its discretion in addressing alleged juror misconduct, and (6) the prosecution's rebuttal summation deprived him of a fair trial. For the reasons explained in this opinion, we conclude that these arguments lack merit. Accordingly, we affirm Sabir's judgment of conviction.FN2
FN2. In a separate order issued today, we dismiss the appeal of Sabir's co-defendant Abdulrahman Farhane.
I. Background
A. 2001: The Initial FBI Investigation into Co-Defendant Tarik Shah
Defendant Rafiq Sabir is a New York licensed physician, trained at Columbia University, who specializes in emergency medicine. In 2001, the Federal Bureau of Investigation began investigating Sabir's longtime friend Tarik Shah for the possible transfer of money to insurgents in Afghanistan. As part of that investigation, an FBI confidential informant known as “Saeed” cultivated a relationship with Shah, in the course of which Shah was recorded speaking openly about his commitment to jihad (holy war) in order to establish Sharia (Islamic law) and about his wish to provide “deadly and dangerous” martial arts training to mujahideen ( jihad warriors). Gov't Exh. (“GX”) 802T at 1-2; GX 803T at 2-4; GX 804T at 3; Trial Tr. at 590-91, 601-03.FN3 During these conversations, Shah repeatedly identified Sabir as his “partner.” GX 801T at 1; GX 807T at 3; see Trial Tr. at 903-04.
FN3. Trial evidence indicated that beginning in the mid-1990s, Shah in fact taught martial arts classes at numerous locations, including two mosques in suburban Maryland and another two in upstate New York, as well as at his own martial arts school in New York City. Participants in these classes testified that Shah taught them the use of deadly weapons and lethal fighting techniques, while exhorting them to embrace jihad.
B. 2004: Shah Offers to Support al Qaeda
On March 3, 2004, Saeed and Shah traveled to Plattsburgh, New York, where Saeed introduced Shah to Ali Soufan, an undercover FBI agent posing as a recruiter for al Qaeda.FN4 In a series of recorded meetings with Agent Soufan, Shah detailed his martial arts expertise and offered to travel abroad to train al Qaeda combatants. Shah also told Soufan about Sabir, “an emergency room doctor” who had been his “trusted friend[ ]” for more than 25 years. GX 902T at 2, 7. Explaining that he knew Sabir's “heart,” Shah proposed that the two men join al Qaeda as “a pair, me and a doctor.” Id . at 3, 23. At a subsequent meeting with Saeed, Shah reported that he had spoken in person with Sabir about this plan.
FN4. Al Qaeda is the most notorious terrorist group presently pursuing jihad against the United States. In February 1998, its leaders, including Osama bin Laden and Ayman al Zawahiri, issued an infamous fatwa (religious decree) pronouncing it the individual duty of every Muslim to kill Americans and their allies-whether civilian or military-in any country where that could be done. For a detailed discussion of this fatwa and al Qaeda's terrorist activities up to 2004-including the 1998 bombings of American embassies in Kenya and Tanzania, which killed 224 people; the October 2000 bombing of the USS Cole, which took 17 lives; and the September 11, 2001 airplane attacks on the World Trade Center and the Pentagon, which killed 2,973 persons-see The National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004). See also United States v. Moussaoui, 591 F.3d 263, 273-74 (4th Cir.2010); In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 103-05 (2d Cir.2008).
*2 Shah and Agent Soufan next met in Orlando, Florida, in April 2004, at which time Shah agreed to prepare a syllabus for a martial arts training course as well as a training video. Shah also questioned Soufan at this meeting about al Qaeda suicide bombings and asked whether he could receive, as well as provide, terrorist training.
C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support
For most of the time between May 2004 and May 2005, Sabir was out of the United States, working at a Saudi military hospital in Riyadh. On May 20, 2005, during a visit to New York, Sabir met with Saeed and Agent Soufan at Shah's Bronx apartment. Sabir told Soufan that he would soon be returning to Riyadh. He expressed interest in meeting with mujahideen operating in Saudi Arabia and agreed to provide medical assistance to any who were wounded. See GX 906T at 15, 87. He suggested that he was ideally situated to provide such assistance because he would have a car in Riyadh and “carte blanche” to move freely about the city. Id. at 67.
To ensure that Shah and Sabir were, in fact, knowingly proffering support for terrorism, Soufan stated that the purpose of “our war, ... our jihad ” is to “[e]xpel the infidels from the Arabian peninsula,” id. at 22, and he repeatedly identified “Sheikh Osama” (in context a clear reference to Osama bin Laden) as the leader of that effort, see, e.g., id. at 31, 34, 59, 87, 98-99. Shah quickly agreed to the need for war to “[e]xpel the Jews and the Christians from the Arabian Peninsula,” id. at 22, while Sabir observed that those fighting such a war were “striving in the way of Allah” and “most deserving” of his help, id. at 66.
To permit mujahideen needing medical assistance to contact him in Riyadh, Sabir provided Soufan with his personal and work telephone numbers. See id. at 40, 83. When Shah and Soufan noted that writing down this contact information might create a security risk, Sabir encoded the numbers using a code provided by Soufan. See id. at 49-53.
Sabir and Shah then participated in bayat, a ritual in which each swore an oath of allegiance to al Qaeda, promising to serve as a “soldier of Islam” and to protect “brothers on the path of Jihad ” and “the path of al Qaeda.” Id. at 106-08, 114-16. The men further swore obedience to “the guardians of the pledge,” whom Soufan expressly identified as “Sheikh Osama,” i.e., Osama bin Laden, and his second in command, “Doctor Ayman Zawahiri.” Id. at 98, 108-10, 115.
D. Prosecution and Conviction
Shah and Sabir were arrested on May 28, 2005, and thereafter indicted in the Southern District of New York on charges that between October 2003 and May 2005, they (1) conspired to provide material support or resources to the terrorist organization al Qaeda, see 18 U.S.C. § 2339B; and (2) provided or attempted to provide such support, see id. § § 2339B, 2. See Indictment ¶ ¶ 1-2, United States v. Shah, S4 05 Cr. 673(LAP) (S.D.N.Y. filed June 27, 2005).FN5 The two counts used identical language to describe three types of material support that defendants provided, attempted to provide, or conspired to provide:
FN5. Shah and Sabir were not named in Counts Three and Four of the indictment, charging Mahmud Faruq Brent with conspiring to provide and providing material support in the form of personnel to the terrorist organization Lashkar-e-Taiba. See Indictment ¶¶ 3-4. We do not discuss these charges further in this opinion.
*3 (i) one or more individuals (including themselves) to work under al Qaeda's direction and control and to organize, manage, supervise, and otherwise direct the operation of al Qaeda, (ii) instruction and teaching designed to impart a special skill to further the illegal objectives of al Qaeda, and (iii) advice and assistance derived from scientific, technical and other specialized knowledge to further the illegal objectives of al Qaeda.
Id. ¶¶ 1-2. The two counts further alleged that Shah would provide “martial arts training and instruction for jihadists,” while Sabir would provide “medical support to wounded jihadists,” both defendants “knowing that al Qaeda had engaged and engages in terrorist activity” and “terrorism.” Id.
After Shah pleaded guilty on April 4, 2007, to Count One of the indictment, trial against Sabir commenced on April 24. On May 21, 2007, the jury found Sabir guilty on both the conspiratorial and substantive charges against him, and, on November 28, 2007, the district court sentenced him principally to 300 months' incarceration. This appeal followed.
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