Sunday, June 20th, 2010

Wholly Terror

United States v. Awan, No. 07-4315-cr (2d Cir. June 14, 2010) (Pooler, Raggi, Livingston, CJJ)

On this government appeal, the circuit remanded for resentencing in light of the district court’s refusal to apply the terrorism enhancement, U.S.S.G. § 3A1.4.

Awan was convicted after a jury trial of various offenses in connection with his efforts to assist the Khalistan Commando Force (the “KCF”), a Sikh terrorist organization based in India, the ultimate aim of which is to compel the Indian government to create a separate Sikh state in the Punjab region. From 1998 to 2001 Awan served as a conduit for funds from U.S. supporters of the KCF to its leader. Later, while incarcerated at the MDC on credit card fraud charges, Awan tried to recruit an associate to go to Pakistan and receive explosives training at a KCF camp.

The terrorism enhancement applies if the defendant was convicted of a felony offense that “involved” or was “intended to promote” a federal crime of terrorism. But the district court declined to apply this section to any of the counts of conviction. It did not consider the “intended to promote” prong at all, and concluded that the evidence did not support the required “motivational element” – that the conduct was “calculated to influence or affect the conduct of government” – under the “involved” prong. Application of the enhancement would have yielded a sentence of 45 years’ imprisonment, the statutory maximum. Instead, however, the district court sentenced Awan principally to 168 months.

On appeal, the circuit vacated and remanded for reconsideration because the district court erred in its consideration of both prongs of the enhancement.

A defendant’s offense “involves” a federal crime of terrorism when either his offense or its relevant conduct includes one of the federal crimes of terrorism enumerated in 18 U.S.C. § 2332b(g)(5)(B) and the conduct was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Here, the district court held that there was insufficient evidence that Awan’s conduct was so “calculated.” Rather, it found that Awan was motivated by “private purposes” – he enjoyed associating with terrorists and the prestige or potential influence it gave him.

To the circuit, however, this holding “addresse[d] the wrong question.” The section does not require proof of a defendant’s particular motive. “Calculation” is “concerned with the object that the actor seeks to accomplish”; it may “often serve motive, but they are not in fact identical.” A person can commit an offense calculated to influence or retaliate against government even if that is not his personal motivation. For example, he might murder a head of state knowing this will affect the conduct of government, even if his specific motive is to impress other terrorists. This conduct would still qualify under the “involved” prong of the terrorism enhancement. Thus, here, whatever Awan’s motive might have been, the terrorism enhancement would apply if he also had the intent specified by the Guideline. Because the district court misconstrued this aspect of the enhancement a remand was necessary.

The “intended to promote prong” is intended to cover situations different from the “involved” prong – cases where the defendant’s offense or relevant conduct does not include one of the enumerated federal crimes of terrorism. An offense is “intended to promote” a federal crime of terrorism when the offense is “intended to help bring about, encourage, or contribute to a federal crime of terrorism” listed in the statute, even if the defendant did not commit a listed offense and the offense was not itself “calculated” to achieve the goals identified in the “involved” prong. All that is required is that “the defendant has as one purpose of his substantive count of conviction or his relevant conduct the intent to promote a federal crime of terrorism.”

Here, the district court declined to consider this prong at all, concluding that since Awan was convicted of a listed offense there was no need to determine whether his conviction of a non-listed offense – money laundering – was intended to promote a federal crime of terrorism. This was error. The government “should have been permitted” to prove that, even if the crimes of conviction and their relevant conduct did not satisfy the calculation requirement under the “involved” prong, they were nevertheless “intended to promote a federal crime of terrorism committed or to be committed by other individuals.” Accordingly, for this reason as well the circuit remanded the case for resentencing.

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