Ali Kournai was a “sleeper agent” working on behalf of Hizballah1 and the Islamic Jihad Organization (IJO) in the United States and Canada for over a decade. In United States v. Kourani, No. 19-4292 (2d Cir. July 27, 2021) (opinion by Judge Cabranes, joined by Judge Kearse), the Circuit affirms the judgment below, rejecting Kourani’s challenges to his conviction following trial as well as to his 480-month sentence.
Judge Pooler agrees that “Kourani received a fair trial and was properly adjudicated guilty by a jury.” But she dissents on the punishment: Although “[h]is crimes were undeniably serious” and “[i]t is not lost on me that Kourani’s actions could have culminated in far more injurious results,” she explains, “[n]evertheless, they did not, and accordingly, the sentence imposed is disproportionately high.”
Here are the relevant facts as recounted by Judge Cabranes; whether 40 years is “unreasonably long” is the principal dispute.2
Kourani joined Hizballah in Lebanon in 2000. He attended its 45-day boot camp in the Bekaa Valley, where he “was trained in military tactics and the use of weapons, including AK-47s and rocket-propelled grenade launchers.”
Kourani entered the US in 2003, denying any affiliation with Hizballah. He got a green card and, in 2009, became a US citizen. At every step, he lied about his membership in Hizballah.
Kourani returned to Lebanon in 2008 and joined IJO, a “component of Hizballah focused on operations outside of Lebanon.” The IJO assigned a handler to him named Fadi.
Back in the United States, Kourani appeared to live a normal life. He got a bachelor’s degree from City College and then obtained an MBA.
Fadi instructed Kourani to obtain a US passport as soon as possible. He did. “Shortly after obtaining his passport, on May 3, 2009, Kourani traveled to Guangzhou, China, which is a manufacturing location of commercial ice packs known to be used by the IJO to build ammonium nitrate explosive.”
“In 2011, Kourani returned to Lebanon for military training. As in his 2008 trip, in this latest sojourn in Lebanon, Kourani received training in the use of weapons and tactics.”
“In 2012, Kourani married a Canadian citizen named Lila Abadi, whose family included Hizballah militia members based in Lebanon. After the marriage, Fadi asked Kourani about carrying correspondence to IJO operatives based in Canada because his travel to and from Canada would not appear suspicious in light of his marriage to a Canadian woman.”
The following year, “at Fadi’s instruction, Kourani applied for and obtained a United States passport card, which could be used for entry into the United States at the land border crossings. That way, if his United States passport were seized, he could use his Lebanese passport to fly to Mexico or Canada and use the United States passport card to cross into the United States.”
Finally, “[t]hroughout this period, from 2008 to 2015, Kourani [] conducted intelligence-gathering missions for the IJO in the United States and Canada at the direction of Fadi.” “Kourani conducted surveillance of: JFK International Airport and Toronto Pearson Airport, an armory facility in Manhattan, a National Guard outpost in Manhattan, Secret Service offices in Brooklyn, and 26 Federal Plaza — the FBI’s New York headquarters located across the street from the federal courthouse in Foley Square.” Additionally, “Fadi asked Kourani to identify commercial locations where weapons could be stockpiled and to identify individuals who could procure weapons. Kourani was instructed to obtain tactical gear, including night-vision goggles, drones, and thermal imaging devices. Fadi also told Kourani to collect information about Israeli businessmen living in New York with ties to the Israeli Defense Forces—so that the IJO could target them for recruitment or assassination.”
There is no evidence that Kournai engaged in violence or harmed anyone.
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The FBI learned of Kourani’s activities and eventually arrested him. “After a jury trial, Kourani was convicted of providing and conspiring to provide material support to Hizballah, in violation of 18 U.S.C. § 2339B (Counts One and Two); receiving and conspiring to receive military-type training from Hizballah, in violation of 18 U.S.C. § 2339D (Counts Three and Four); contributing and conspiring to contribute services to Hizballah, in violation of 50 U.S.C. § 1705(a) (Counts Six and Seven); and unlawful procurement of citizenship or naturalization to facilitate an act of terrorism, in violation of 18 U.S.C. § 1425(a) (Count Eight).”
At sentencing the parties agreed that the Guidelines range was 360 months to life. The court imposed a sentence of 480 months.
Judge Cabranes rejected Kourani’s procedural and closely-related substantive reasonableness challenges to his sentence.
First, he rejected Kourani’s claim that his 40-year sentence creates an unwarranted sentencing disparity with other similarly situated defendants, in violation of § 3553(a)(6), because they typically received sentences of 15 to 20 years. Judge Cabranes agreed with the district court that there were “significant distinctions” between “the present case and the cases on which Kourani relied”: “Kourani’s conduct presented a ‘unique’ case” and his “proffered comparisons [we]re not fair” because they “involved defendants who did not commit the range of conduct of which Kourani stood convicted.”
Second, for similar reasons, Judge Cabranes rejected Kourani’s claim of substantive unreasonableness. The sentence falls within the undisputed range of 360 to life, and Kourani “fails to demonstrate that his sentence . . . cannot be located within the range of permissible decisions.” In Judge Cabranes’s view, “Kourani’s sentence simply reflect[s] Congress’ judgment as to the appropriate national policy for such crime.”
Judge Pooler dissents on the sentencing issue: “I decline to affirm a sentence that effectively requires Kourani to spend the rest of his adult life in prison, especially when Kourani’s actions have not directly injured anyone. Such a disproportionate sentence ‘shock[s] the conscience.’” She makes two arguments in support.
First, “[o]ther defendants who have committed similar crimes received lesser sentences.” Judge Pooler string-cites a number of cases involving similar terrorism defendants who received sentences between 9 and 15 years. “These shorter, yet still very serious sentences, for comparable conduct suggest that Kourani’s sentence is ‘greater than necessary to achieve the goals of § 3553(a).’ United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010).” Dorvee is of course the child-pornography case in which the Circuit criticized the applicable Guideline as one that “can lead to unreasonable sentences that are inconsistent with what § 3553 requires.”
Second, Judge Pooler notes that even though the 40-year sentence falls within the Guidelines range, “Growing concern exists about the fairness of the exceedingly high sentencing enhancements on ‘material support’ of terrorism crimes, particularly where the support is nonviolent.” (Citing law review articles). She again relies on Dorvee: “[I]n certain areas of the law, without careful consideration of an individual defendant’s circumstances, the Guidelines may ‘generate unreasonable results.’” (quoting Dorvee).
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1 This is the spelling used in the Indictment and by the Circuit.
2 The Circuit also rejects (1) Kourani’s claim based on a pretrial suppression motion; (2) his claim of ineffective assistance of counsel; (3) his claim regarding jury instructions; and (4) his sufficiency claim.
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