Attempting Offer

United States v. Sabir, No. 07-1968-cr (2d Cir. February 4, 2011) (Winter, Raggi, CJJ, Dearie, DJ)

Rafiq Sabir, an American doctor, was convicted of conspiring to and attempting to provide material support – in the form of his own medical services – to al Qaeda. Sabir raised a multitude of issues on appeal, including a challenge to the constitutionality of the material support statute and complaints about the racial composition of the jury, the trial court’s evidentiary rulings, and the government’s rebuttal summation.

But of particular interest are the opinion’s discussion of sufficiency of his conviction for attempt, an issue that the court does not not often consider in depth, and the diverging views of the two opinions on the issue.

The case against Sabir arose from a terrorism investigation of Sabir’s longtime friend, Tarik Shah, that began in 2001. An FBI CI “Saeed,” cultivated a relationship with Shah, in which Shah spoke about his commitment to jihad and identified Sabir as his “partner.” Saeed eventually introduced Shah to an undercover FBI agent, Ali Soufan, who posed as a recruiter for al Qaeda. Shah told Soufan about Sabir, describing him as a doctor who was committed to the same cause.

In 2005, Sabir met with Saeed and Agent Soufan at Shah’s apartment. Sabir, who had been in Saudi Arabia, said he would soon be returning there and agreed to provide emergency medical care to wounded mujahideen. Sabir gave Soufan his personal and work telephone numbers so that those needing medical assistance would be able to contact him directly. He and Shah then swore an oath of allegiance to al Qaeda and its leaders.

On appeal, Sabir argued that his offer to provide medical assistance, even coupled with his giving Soufan his telephone numbers, was legally insufficient to constitute an attempt to provide material support. A bitterly divided panel affirmed.

The majority began by reviewing the law of attempt. Federal criminal law requires only a “substantial step” in furtherance of the intended crime. This concept derives from the Model Penal Code, which introduced the formulation in order to expand attempt liability. The Second Circuit adopted it in 1976, noting that it was satisfied by conduct, even if not proximate to the completion of the crime, that was “strongly corroborative of the firmness of the defendant’s criminal intent.” Thus, while a substantial step must be more than “mere preparation,” it may be less than the “last act necessary” before the commission of the crime.

These standards, however, do not always provide “bright lines for application,” since the identification of a “substantial step” is necessarily a matter of degree. For an offense such as attempt to provide material support, the focus is on the defendant’s “efforts to supply.” For this offense, the underlying conduct is the provision of support, even benign support, for a terrorist organization, and need not be planned to culminate in terrorist harm.

Accordingly, the majority concluded that the evidence was sufficient to show that Sabir attempted to provide material support in the form of personnel – “specifically, himself” – to work for al Qaeda as a doctor on-call to treat wounded jihadists in Saudi Arabia. Sabir met with what he thought was an al Qaeda member, swore an oath of allegiance to the organization, promised to be on call, and gave his contact numbers so that al Qaeda members could reach him in Saudi Arabia when they needed treatment. This conduct “planned to culminate in his supplying al Qaeda with personnel, thereby satisfying he substantial step requirement.”

Judge Dearie vigorously dissented. In his view, “the substantive crime was so remote in time, place and objective that one is left only to speculate as to what, if anything, would have happened had Sabir in fact been in a position to pursue the conspiratorial goal.” In his view, the majority’s conclusion that merely “pledg[ing] to work under the direction of the organization” could constitute an attempt to provide material support was “without precedent and hinges upon … a seriously flawed interpretation of the material support statutes.”

Judge Dearie took particular issue with the majority’s conclusion that Sabir committed the crime of attempt “simply by agreeing to commit the crime and providing a phone numbers.” The giving of the phone numbers, was of little significant since it did not occur at or near an actual jihadist camp or battleground. Sabir was 7,000 miles away, and no preparations to be “on call” had been made or even discussed. This left the “actual provision of material support entirely a matter of speculation and surmise.”