Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria. But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence: United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 4062635 (Aug. 29, 2019).
In United States v. Pugh, the Second Circuit rules (against the defendant) on the marital communications privilege. And it finds there was sufficient evidence of an “attempt” to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B(a)(1)), and of obstruction and attempted obstruction of an official proceeding (18 U.S.C. § 1512(c)(1) and (c)(2)).
The Circuit does, however, vacate the (consecutive) sentence because of the inadequacy of the Judge’s explanation. In addition, a separate concurring opinion explicates concern about the overuse of obstruction of justice charges. Pugh, 2019 WL 2019 WL 4062635 at *10-*12 (Calabresi, J., concurring).
Pugh is a U.S. citizen and Air Force Veteran “who moved to the Middle East to work as a civilian contractor for different aerospace companies after he left the military.” Pugh, 2019 WL 4062635 at *1. While abroad, “Pugh began researching the Islamic State of Iraq and the Levant (‘ISIL’ or ‘ISIS’) and downloading propaganda materials, as well as discussing ISIS tactics and activities online via Facebook.” “Pugh also met and married an Egyptian woman[.]” In 2015, “Pugh flew from Cairo, Egypt to Istanbul, Turkey” but was denied entry. “At the airport in Turkey, Pugh attempted to destroy, or succeeded in destroying, many of the electronic devices he was carrying with him, including a computer, multiple USB drives, and an iPod.” Id.
Turkish authorities returned Pugh to Egypt, and “his electronic devices were given to the United States authorities.” “A search of his laptop revealed internet searches, videos, and pictures relating to ISIS and its presence in, inter alia, Turkey and Syria[.]”Id. at *1. The laptop also contained “a letter purportedly drafted by Pugh to his wife in which he pledges his allegiance to ISIS.” Id. In the letter, Pugh expressed a desire to “use [his] talents and skills … to establish and defend the Islamic State” and made other statements the prosecution considered incriminating. Id. at *2. At trial, Pugh tried unsuccessfully to exclude the letter under the marital communications privilege.
Pugh ultimately was sent to the United States and convicted by a jury of attempting to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1) (count one); and obstruction and attempted obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(1) and (c)(2) (count two).
A. The marital communications privilege
“‘The confidential communications privilege … [shields] communications made in confidence during a valid marriage….’” Pugh, 2009 WL 4062635 at *3 (alterations in original; citation omitted). The “marital communications privilege” applies “when (1) the parties were in a valid marriage at the time of the communication; (2) the utterances or expressions were intended to convey information between spouses (communication prong); and (3) the communications were intended to be confidential (confidentiality prong) .” Id. at *4 (citation and internal quotation marks omitted). “A person seeking to invoke the marital privilege must show that he actually intended to convey the message to his spouse.” Id.
Here, “Pugh, who speaks only English … married an Egyptian woman, M.H.S., who speaks only Egyptian Arabic.” They “communicated mostly via Facebook Messenger with the help of Google Translate and/or bilingual acquaintances who would translate messages between the pair.” Id. at *2. The district court denied Pugh’s motion to exclude the draft letter to his wife. It found “‘no evidence that Pugh intended the letter to be a communication,” saying there was “no evidence that [he] intended to send the draft.’” Id. at *4.
The Circuit affirmed the district court’s ruling, stating: “Given that there was no evidence that M.H.S. had access to Pugh’s computer where the letter was found, there was no evidence that Pugh ever typed his messages in another format before sending them via Facebook Messenger, and the letter had not yet been translated, it was not error for the court to determine that Pugh failed to prove that he intended the letter to be a marital communication.” Id. at *4.
B. Sufficiency: Attempt to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B(a)(1))
Pugh argued the evidence was insufficient to prove that he “took a substantial step” to provide material support to ISIS in Syria because “he only indulged in an online interest in ISIS propaganda, expressed his political views, and bought a ticket to Turkey from Egypt.” Id. at *5. But the Circuit found the evidence sufficient.
To prove “an attempt to commit a crime, the government must prove that the defendant had the intent to commit the crime and engaged in conduct amounting to a substantial step towards the commission of the crime.” Id. at *5 (citation and internal quotation marks omitted). A “substantial step” is “more than ‘mere preparation,’ but may have stopped short of ‘the last act necessary’ for the actual commission of the substantive crime.” Id..
For purposes of § 2339B(a)(1) , “a substantial step towards the provision of material support need not be planned to culminate in actual terrorist harm, but only in support — even benign support — for an organization committed to such harm.” Id. at *5 (citation and internal quotation marks omitted).
As noted, the Circuit found the evidence sufficient to show Pugh took a substantial step to journey to Syria to join ISIS. Id. at *5-*6.
C. Sufficiency: Obstruction and attempted obstruction of an official proceeding (18 U.S.C. § 1512(c)(1) and (c)(2))
The obstruction count alleged that Pugh, while at the airport in Turkey, tried “to destroy, or succeeded in destroying, many of the electronic devices he was carrying with him, including a computer, multiple USB drives, and an iPod.” Id. at *1.
Obstruction of justice, under 18 U.S.C. § 1512(c)(1), criminalizes altering, destroying, mutilating, or concealing information “with the intent to impair the object’s integrity or availability for use in an official proceeding.” Section 1512(c)(2) criminalizes obstructing, influencing, or impeding “any official proceeding, or attempt[ing] to do so.” An “official proceeding” includes “a proceeding before a judge or court of the United States … or a Federal grand jury.” 18 U.S.C. § 1515(a)(1)(A). The proceeding doesn’t have to be pending or about to be instituted (§ 1512(f)).
The Supreme court read a foreseability or “nexus” requirement into the (implicit) mens rea for § 1512 offenses, in Arthur Andersen LLP v. United States, 544 U.S. 696, 708 (2005). But Arthur Andersen indicated that the defendant must have intended to obstruct a “particular proceeding” — one the defendant had contemplated or foreseen when engaging in the obstructive conduct. Id. at 707. Arthur Andersen states that a defendant cannot be a “knowingly … corrupt persuader. . . when he does not have in contemplation any particular official proceeding in which those [destroyed] documents might be material.” Id. at 708.
The Circuit’s discussion of the nexus requirement seems less rigorous. It states: “‘[T]he existence of a nexus between [a defendant’s] action and the proceeding does not depend on the defendant’s knowledge…. Rather, the existence of a nexus, for obstruction-of-justice purposes, is determined by whether the defendant’s acts have a relationship in time, causation, or logic with the judicial proceedings.’” Pugh, 2019 WL 2019 WL 4062635 at *6 (alterations in original) (quoting United States v. Martinez, 862 F.3d 223, 237-38 (2d Cir. 2017)). Moreover, the “actions of the defendant need not have directly impeded, or attempted to impede directly, the official proceeding.’” Id. “[I]n other words, the endeavor must have the natural and probable effect of interfering with the due administration of justice.” Id. (bracketed alteration in original; citations and internal quotation marks omitted).
The Circuit found the evidence sufficient for the jury to find that the prospect of a criminal proceeding in the United States was foreseeable to Pugh “when Pugh was denied entry into Turkey, and while still at the Turkish airport, he wiped his iPod of all contents and destroyed his USB thumb drives.” Id. at *7.
D. Sentence is vacated for procedural error: Insufficient statement of the reasons for the sentence
The district judge imposed a “statutory maximum” sentence of 180 months’ imprisonment (15 years) on the terrorism count: i.e., attempting to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). The judge also imposed a “statutory maximum” sentence of 240 months (20 years) on the obstruction of justice charge (for attempting to destroy a USB thumb drive and wiping the iPod, in violation of 18 U.S.C. § 1512(c)(1) and (c)(2)). And the Judge made the sentences run consecutively, resulting in a total prison term “of 420 months, the highest permissible sentence.” Pugh, 2019 WL 2019 WL 4062635 at *9. (The statutory maximum for 18 U.S.C. § 2339B(a)(1), the terrorism count was increased, since Pugh’s 2015 offense, to 240 months from 180 months).
The Circuit vacated the sentence because of the Judge’s inadequate explanation for imposing a maximum sentence. The record did not permit “meaningful appellate review of the substantive reasonableness” of the sentence. Id. at *10.
Here, in pronouncing the sentence, “[m]ost of the court’s comments on the record relate[d] to Pugh’s guilt rather than to an appropriate sentence.” Id. at *9. “After roughly two pages of comments, the court stated that the case was about Pugh’s choice between standing up for or betraying the United States, a country which had ‘done so much’ for him. The court addressed Pugh stating ‘You’ve made your choice, sir. I have no sympathy.’” Id. Without further explanation, the Judge sentenced Pugh to “the maximum sentence under each statute at the time of the offense, for a total of 420 months, the highest permissible sentence.” Id..
The Opinion has some useful discussion of the parsimony directive. It states that, after considering the § 3553(a) factors, “the district court must impose a sentence that is sufficient, but not greater than necessary, to fulfill the purposes of sentencing.” Id. at *9. “In doing so, if the court determines that a lower sentence will be just as effective as a higher sentence, it must choose the lower sentence.” Id.
Also, “[w]hen a defendant has been convicted of multiple counts, it is important for the sentencing judge to articulate why a sentence equal to the statutory maximum on one count will not produce a sufficient sentence within the meaning of 18 U.S.C. § 3553(a).” Id. at *10. On appellate review of a sentence, “‘just as we do not insist upon ‘robotic incantations,’ we require more than a few magic words’” to justify the sentence. Id. at *9.
The Circuit also noted that, even though the 420-month sentence fell within the Sentencing Guidelines range of 360-to-420 months, “a sentence within the properly-calculated Guidelines range can be substantively unreasonable.” Id. at *9. The Circuit thus held: “Pugh’s sentence reflects procedural error and is vacated. We remand the case for resentencing, including an articulation of the court’s reasons for whatever sentence it imposes.” Id. at *10.
(Pugh also argued that the court impeded his right to present mitigating information, in violation of Fed. R. Crim. P. 32(i)(4)(A)(ii), by interrupting him after he spoke for 17 uninterrupted pages. The Second Circuit ruled against him on this ground. Id. at *8.)
E. The concurring opinion’s concern about the overuse of obstruction-of-justice charges
Judge Calabresi wrote separately “to emphasize the risks posed by the crime of obstruction of justice, 18 U.S.C. § 1512(c), as it has evolved, and as it has been applied in this case.” Pugh Concurrence, id.. at *10 (Calabresi, J. , concurring).
The gravamen of Pugh’s conduct — the concurrence points out — was the terrorism charge, which is a “serious crime” that “carries a serious penalty,” and “[u]nderstandably, the District Court sentenced Defendant to the full 15 years under that count.” Id.. at *10. But the district court then used the obstruction charge, based on “acts that seem to have been much less grave,” to sentence him “to more than twice” the sentence on the terrorism charge “to turn Defendant’s 15-year sentence into a 35-year sentence.” Id. at *10, *11. Thus, by adding the obstruction charge, “the government was able to take what is already a very serious crime — attempting to provide material support to a foreign terrorist organization –“ and based on “some not overly strong facts, bring an obstruction charge that more than doubled the maximum sentence otherwise available.” Id. at *11.
The concurrence, therefore, was concerned “with how broad obstruction of justice prosecutions under 18 U.S.C. § 1512(c) have become.” Id. at *11. Section 1512(c), the concurrence noted, “was enacted as part of the Sarbanes-Oxley Act of 2002, a major white-collar reform bill, largely prompted by reports of corporate accounting fraud at Enron and other major blue-chip companies. See H. R. Rep. No. 107-414 at 18-19 (2002). But, as applied and interpreted, 18 U.S.C. § 1512(c) can now reach everything from the smallest crime to the broadest political attack and creates tremendous room for prosecutorial discretion.” Id. at *12.
Accordingly, courts should carefully examine obstruction of justice cases. “A sentence for obstruction of justice under 18 U.S.C. § 1512(c) should reflect the severity of the obstruction of justice, in the context of a particular underlying crime, and not prosecutorial or judicial dissatisfaction with the limits Congress placed on the gravity of that underlying crime.” Id. at *12 (emphasis in original).