United States v. Khalid Awan, No. 07-4315 (2d Cir. 2010)

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07-4315-cr (L), 07-4601-cr (XAP) United States v. Khalid Awan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 (Argued: December 10, 2008) (Decided: June 14, 2010) Docket No. 07-4315-cr (L), 07-4601-cr (XAP) _____________________________________ UNITED STATES OF AMERICA, Appellee-Cross-Appellant, -v.KHALID AWAN, Defendant-Appellant-Cross-Appellee. _____________________________________ Before: POOLER, RAGGI, and LIVINGSTON, Circuit Judges. _____________________________________ 28 Appellee-Cross-Appellant the United States of America appeals from a judgment of 29 conviction and sentence of the United States District Court for the Eastern District of New York 30 (Charles P. Sifton, Judge) in which the district court denied the United States s request for 31 imposition of the terrorism enhancement, which applies to felonies that involved, or [were] 32 intended to promote, a federal crime of terrorism, U.S.S.G. § 3A1.4, to each of Defendant- 33 Appellant-Cross-Appellee Khalid Awan s three counts of conviction. We conclude that the district 1 1 court committed legal error by failing to consider application of the intended to promote prong of 2 Section 3A1.4 and by misconstruing the involved prong, as both apply to Awan s conduct. 3 Accordingly, we vacate Awan s sentence and remand for further proceedings in the district court. 4 VACATED AND REMANDED. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 _____________________________________ SEAN MICHAEL MAHER , Wahid, Vizcaino & Maher LLP, New York, NY, for Defendant-Appellant-Cross-Appellee Khalid Awan. KELLY T. CURRIE, Assistant United States Attorney (David C. James, Marshall L. Miller, Karin Klapper Orenstein, Andrew E. Goldsmith, Assistant United States Attorneys, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, for AppelleeCross-Appellant United States of America. _____________________________________ DEBRA ANN LIVINGSTON, Circuit Judge: 22 Cross-Appellant the United States appeals from a judgment of conviction and sentence of 23 the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) 24 finding the Sentencing Guidelines terrorism enhancement, which applies to felonies that involved, 25 or [were] intended to promote, a federal crime of terrorism, U.S.S.G. § 3A1.4, inapplicable to all 26 of Cross-Appellee Khalid Awan s counts of conviction.1 Because we conclude that the district court 27 misconstrued both prongs of § 3A1.4, we vacate the judgment of the district court and remand for 28 resentencing. 1 Awan raises various challenges to his convictions, which are addressed in an accompanying summary order. 2 1 2 3 At the conclusion of a three-week jury trial in the United States District Court for the Eastern 4 District of New York, the Cross-Appellee Khalid Awan ( Awan ) was convicted of (1) conspiring 5 to provide material support and resources to be used in a conspiracy prohibited by 18 U.S.C. 6 § 956(a), to wit, a conspiracy to commit murder, kidnapping, or maiming outside the United States, 7 in violation of 18 U.S.C. § 2339A; (2) providing material support and resources to be used in such 8 a conspiracy, also in violation of 18 U.S.C. § 2339A; and (3) the international transfer of money with 9 the intent to promote specific unlawful activity, to wit, murder and the destruction of property by 10 means of explosive or fire as prohibited by India Penal Code sections 300 and 435, in violation of 11 18 U.S.C. § 1956(a)(2)(A). BACKGROUND 12 The following facts are drawn from the evidence presented at trial, and are presented in the 13 light most favorable to the government. See United States v. Ivezaj, 568 F.3d 88, 90 (2d Cir. 2009). 14 The Khalistan Commando Force ( KCF ) is a Sikh terrorist organization responsible for carrying 15 out murders and bombings in India. The organization seeks to compel the Indian government to 16 allow the creation of an independent Sikh state in the Punjab region of India. The KCF has engaged 17 in bombings of Indian security forces, buses, trains, and civilian economic targets resulting in the 18 deaths of thousands in India since the beginning of the organization s existence. The KCF is funded 19 by means of illegal activities, such as bank robbery and kidnapping, as well as through contributions 20 of supporters in North America and Europe. Since 1989, the KCF has been led by Paramjit Singh 21 Panjwar ( Panjwar ). Awan stated to others on several occasions that he was a close friend of 22 Panjwar and that he knew Panjwar was a leader of the KCF. Awan was also wiretapped by the 23 government making phone calls to Panjwar from the Metropolitan Detention Center ( MDC ) in 3 1 Brooklyn, New York.2 Awan told a fellow inmate at the MDC, Harjit Singh ( Harjit ), that he knew 2 that Panjwar was involved in several hundred bombings, a plot to attack Indian Prime Minister Indira 3 Gandhi in 1984,3 and attacks on Indian security forces in India, and that the KCF received training 4 at camps in Pakistan run by the Pakistani intelligence service. 5 From 1998 through 2001, using a variety of methods, Awan served as a conduit for the 6 transfer of funds from KCF supporters in the United States to Panjwar. In particular, Awan told 7 Harjit and admitted to investigators that he had transferred money to Panjwar after meeting with a 8 number of sources on several occasions. Two members of the KCF funding network in the United 9 States who cooperated with the government, Gurbax Singh ( Gurbax ) and Baljinder Singh 10 ( Baljinder ), also testified that they both had delivered money for KCF to Awan on different 11 occasions. Baljinder later spoke to Panjwar on the phone about delivering the money to Awan, and 12 Panjwar told him that Awan was a good friend of his and a trusted person who had done this 13 work already. Trial Tr. 447. Awan told Harjit and investigators that he used the bank accounts of 14 several businesses to transfer the money to Panjwar. 15 In or around 2003 and 2004, while both were detained at the MDC, Awan attempted to 16 recruit Harjit to travel to Pakistan and receive explosives training at a KCF camp. Awan discussed 17 with Harjit on several occasions traveling to Pakistan to meet with Panjwar and receiving training 18 in bombmaking and military activities. 19 conversations between Awan and Panjwar in which Awan introduced Harjit to Panjwar and Harjit 20 and Panjwar discussed Harjit s traveling to Pakistan for military training. 2 3 Government investigators also wiretapped phone Awan was in custody at the MDC on charges related to credit card fraud. This plot was not involved in Prime Minister Gandhi s actual assassination in 1984. 4 1 In its proposed calculation of Awan s Sentencing Guidelines, the Probation Department 2 recommended an adjusted offense level of 45 for Awan s 18 U.S.C. § 2339A (material support of 3 terrorism) counts, which included the application of a twelve-level terrorism adjustment pursuant 4 to U.S.S.G. § 3A1.4. The Department also recommended an adjusted offense level of 36 for the 18 5 U.S.C. § 1956 (international money transfer) count, which also included the terrorism adjustment. 6 This yielded an effective Guidelines sentence of 45 years, the statutory maximum sentence for 7 Awan s counts. See United States v. Awan, No. CR-06-0154, 2007 WL 2071748, at *1 (E.D.N.Y. 8 July 17, 2007). 9 The terrorism enhancement, U.S.S.G. § 3A1.4, provides as follows: 10 11 12 13 14 15 16 (a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32. (b) In each such case, the defendant s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI. U.S.S.G. § 3A1.4. Application Note 1 provides that the term federal crime of terrorism is defined 17 by the meaning given that term in 18 U.S.C. § 2332b(g)(5), which provides a two-part definition. 18 First, a federal crime of terrorism is an offense that . . . is calculated to influence or affect the 19 conduct of government by intimidation or coercion, or to retaliate against government conduct. 18 20 U.S.C. § 2332b(g)(5)(A). Second, the offense must be a violation of a specific federal criminal 21 statute listed in 18 U.S.C. § 2332b(g)(5)(B). The list includes, inter alia, violations of [18 U.S.C. 22 §] 956(a)(1) (relating to conspiracy to murder, kidnap, or maim persons abroad) and [18 U.S.C. 23 §] 2339A (relating to providing material support to terrorists). Id. § 2332b(g)(5)(B)(i). Awan was 24 convicted of violating § 2339A, and each § 2339A count involved the provision of material support 25 and resources to be used in a conspiracy to violate § 956. Violations of 18 U.S.C. § 1956(a)(2)(A) 5 1 (the international money transfer crime of which Awan was convicted) are not included in § 2 2332b(g)(5)(B). 3 Before sentencing, the government argued that the § 3A1.4 terrorism enhancement applied 4 to all of Awan s counts because each count was intended to promote a federal crime of terrorism, 5 namely a conspiracy to murder, kidnap, or maim persons abroad in violation of 18 U.S.C. § 956. 6 Gov. Sent. Mem. 7. Further, the government argued that Awan s money laundering count was 7 intended to promote an additional federal crime of terrorism, the provision of material resources 8 and support in violation of 18 U.S.C. § 2339A. Gov. Supp. Sent. Mem. 2. Finally, the government 9 argued that Awan s substantive and conspiratorial material support crimes in violation of 18 U.S.C. 10 § 2339A involved a federal crime of terrorism. Id. at 9-10. Awan challenged the application of 11 the terrorism enhancement to any of his counts of conviction, arguing, inter alia, that his conduct 12 did not satisfy the so-called motivational element of 18 U.S.C. § 2332b(g)(5)(A), which defines 13 a federal crime of terrorism as a statutorily specified offense calculated to influence or affect the 14 conduct of government by intimidation or coercion, or to retaliate against government conduct. 15 Def. Obj. to PSR ¶ 24. 16 The district court declined to apply either the involved or intended to promote prongs 17 of U.S.S.G.§ 3A1.4 to any of Awan s counts. First, because Awan was convicted of a crime listed 18 in 18 U.S.C. § 2332b(g)(5)(B), namely, providing and conspiring to provide material resources and 19 support to be used in a conspiracy to commit murder, kidnapping, and maiming outside of the United 20 States, in violation of 18 U.S.C. § 2339A, the district court found it unnecessary to consider whether 21 Awan s third crime, transferring money internationally with the intent to promote unlawful activity 22 in violation of 18 U.S.C. § 1956, was intended to promote a federal crime of terrorism. The court 6 1 reasoned: [S]ince § 2332b(g)(5)(B) includes § 2339A in the list of crimes whose violation may be 2 a federal crime of terrorism[,] there is no need to determine whether the violation of § 1956 is 3 properly deemed a promotion of a federal crime of terrorism for the purposes of § 3A1.4. Awan, 4 2007 WL 2071748, at *1 n.6. As a result, the court apparently limited its analysis of the applicability 5 of the terrorism enhancement to the involved prong of § 3A1.4. The court noted that a federal 6 crime of terrorism under § 2332b requires both the commission of one of the enumerated crimes 7 and a finding that the required motivational element set forth in § 2332b(g)(5)(A) has been met. 8 Id. at *4 (footnote omitted). Next, the district court found that the evidence at trial and the facts 9 stated in the Presentence Report ( PSR ) were insufficient to prove by a preponderance of the 10 evidence that Awan s actions satisfied the motivational element, i.e., that his conduct was 11 calculated to influence or affect the conduct of government. 12 2332b(g)(5)(A)). Thus, the district court determined that the involved prong was inapplicable and 13 calculated Awan s Guidelines range without the terrorism adjustment, id., resulting in a Guidelines 14 range of 168 to 210 months, id. at *7. The district court sentenced Awan in principal part to 168 15 months in prison. Awan is now serving his sentence. Id. (quoting 18 U.S.C. § 16 17 18 We review a district court s sentence for procedural and substantive reasonableness, a 19 standard akin to review for abuse of discretion. United States v. Cavera, 550 F.3d 180, 188 (2d 20 Cir. 2008) (en banc) (quoting United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)). A district 21 court is procedurally obligated to calculate and consider the Sentencing Guidelines in reaching an 22 independent decision as to sentence. See Gall v. United States, 552 U.S. 38, 49-50 (2007); Cavera, 23 550 F.3d at 189 (observing that sentencing judges should begin all sentencing proceedings by DISCUSSION 7 1 calculating . . . the applicable Guidelines range before reaching individualized judgment in each 2 case ); see also 18 U.S.C. § 3553(a)(4). We review resulting questions of interpretation of the 3 Sentencing Guidelines de novo. United States v. Meskini, 319 F.3d 88, 91 (2d Cir. 2003). When 4 finding facts relevant to sentencing for Guidelines calculation purposes, the district court [is] 5 required to use the preponderance of the evidence standard. United States v. Salazar, 489 F.3d 555, 6 558 (2d Cir. 2007) (per curiam). We apply the clear error standard when evaluating a district court s 7 findings of fact. United States v. Salim, 549 F.3d 67, 72 (2d Cir. 2008). 8 The government argues that the district court committed two errors in its analysis of 9 § 3A1.4 s applicability. First, the government contends that the district court erred in considering 10 only the involved prong of § 3A1.4 in concluding that no terrorism enhancement was warranted 11 in this case, thereby ignoring § 3A1.4 s alternative intended to promote prong. Second, the 12 government submits that in applying the involved prong, the district court clearly erred in 13 concluding that Awan s conduct failed to satisfy the requirement set forth in § 2332b(g)(5)(A) that 14 it be calculated to influence or affect the conduct of government by intimidation or coercion, or to 15 retaliate against government conduct what the district court termed the motivational element. 16 Awan, 2007 WL 2071748, at *2 (quoting 142 Cong. Rec. H3305-01, H3337 (Apr. 15, 1996)). We 17 conclude that the district court committed procedural error in two respects. First, it erroneously 18 concluded that the intended to promote prong was inapplicable if one of the crimes of conviction 19 was a crime listed in 18 U.S.C. § 2332b(g)(5)(B). Second, it erroneously concluded that the statutory 20 definition of a federal crime of terrorism, 18 U.S.C. § 2332b(g)(5), which is incorporated into the 21 Guideline, requires the government to prove the defendant s motive for committing the crime of 22 conviction. 8 1 I. The Intended to Promote Prong of U.S.S.G. § 3A1.4 2 A. Interpreting U.S.S.G. § 3A1.4 3 Canons of [statutory] construction ordinarily suggest that terms connected by a disjunctive 4 be given separate meanings, unless the context dictates otherwise. Reiter v. Sonotone Corp., 442 5 U.S. 330, 339 (1979); see also Mizrahi v. Gonzales, 492 F.3d 156, 164 (2d Cir. 2007). This 6 principle applies with equal force to Guidelines interpretation. 7 interpreted . . . so no words are discarded as meaningless, redundant or surplusage. United States 8 v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005); see also United States v. Mandhai, 375 F.3d 1243, 9 1247 (11th Cir. 2004). Thus, the disjunctive phrase from U.S.S.G. § 3A1.4 at issue here [i]f the 10 offense . . . involved, or was intended to promote, a federal crime of terrorism makes clear that 11 the predicate offense must either (1) involve a federal crime of terrorism or (2) be intended to 12 promote a federal crime of terrorism, and that each clause has a separate meaning. We start with 13 the meaning of the involved prong, which, by comparison, illuminates the meaning of the 14 intended to promote prong. The Guidelines must be 15 When interpreting the Guidelines, we begin with the basic rules of statutory construction, 16 and we give all terms in the Guidelines their ordinary meanings unless there are persuasive reasons 17 not to do so. United States v. Mullings, 330 F.3d 123, 124-25 (2d Cir. 2003) (per curiam). The 18 ordinary meaning of involved is to have within or as part of itself, or to include. Webster s 19 Third New International Dictionary 1191 (2002); see also Arnaout, 431 F.3d at 1001 ( The ordinary 20 and plain meaning of involved means to include. ); Mandhai, 375 F.3d at 1247-48 ( The term 21 involve means to include. ). As the Sixth Circuit has pointed out in construing § 3A1.4, [t]he 22 word involved occurs frequently throughout the Guidelines, both in the substantive provisions and 9 1 in the commentary, and is typically employed to mean included. United States v. Graham, 275 2 F.3d 490, 516 (6th Cir. 2001). For example, the aggravating role enhancement in U.S.S.G. 3 § 3B1.1(a) provides that [i]f the defendant was an organizer or leader of a criminal activity that 4 involved five or more participants or was otherwise extensive, increase by 4 levels. U.S.S.G. 5 § 3B1.1(a) (emphasis added); see also Graham, 275 F.3d at 516 (collecting examples). Thus, a 6 defendant s offense involves a federal crime of terrorism when his offense includes such a crime, 7 i.e., the defendant committed, attempted, or conspired to commit a federal crime of terrorism as 8 defined in 18 U.S.C. § 2332b(g)(5), or his relevant conduct includes such a crime. Id. at 516; see 9 also United States v. Stewart, 590 F.3d 93, 138 (2d Cir. 2009); Arnaout, 431 F.3d at 1001 ( [T]he 10 word involved, as used in § 3A1.4, signifies that where a defendant s offense or relevant conduct 11 includes a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5)(B), then § 3A1.4 is 12 triggered. ). 13 Turning to the intended to promote prong, we begin with the assumption that the 14 intended to promote language means something different from the word involved. Graham, 275 15 F.3d at 516; see also Stewart, 590 F.3d at 138; Mandhai, 375 F.3d at 1248 ( The phrase or intended 16 to promote [in § 3A1.4] . . . must have additional meaning. ). Because § 3A1.4 is written as a 17 disjunctive phrase and must be interpreted to avoid redundancy, the intended to promote prong 18 must be applicable in some circumstances in which the involved prong is not, i.e., where the 19 defendant s offense or relevant conduct does not include a federal crime of terrorism. 20 The ordinary meaning of promote includes to bring or help bring into being, to 21 contribute to the growth, enlargement, or prosperity of, or to encourage or further. Webster s 22 Third New International Dictionary 1815 (2002); see also Arnaout, 431 F.3d at 1002 ( In its 10 1 ordinary usage, promote means to help or encourage. ). According to the ordinary meaning of 2 § 3A1.4, then, an offense is intended to promote a federal crime of terrorism when the offense is 3 intended to help bring about, encourage, or contribute to a federal crime of terrorism as that term is 4 defined in 18 U.S.C. § 2332b(g)(5). See Stewart, 590 F.3d at 137 ( The criminal conduct at issue 5 need not itself meet the statutory definition of a federal crime of terrorism if a goal or purpose [of 6 the defendant s act] was to bring or help bring into being a crime listed in 18 U.S.C. 7 § 2332b(g)(5)(B). (alteration in original) (quoting Mandhai, 375 F.3d at 1248)); Arnaout, 431 F.3d 8 at 1002 ( [T]he word promote, as used in § 3A1.4, signifies that where a defendant s offense or 9 relevant conduct helps or encourages a federal crime of terrorism as defined in 18 U.S.C. 10 § 2332b(g)(5)(B), then § 3A1.4 is triggered. ). 11 The ordinary meaning of the intended to promote prong gives that clause a separate 12 meaning from the involved prong of § 3A1.4. The intended to promote prong applies where the 13 defendant s offense is intended to encourage, further, or bring about a federal crime of terrorism, 14 even though the defendant s own crime of conviction or relevant conduct may not include a federal 15 crime of terrorism. And this has an important implication: To qualify as a federal crime of terrorism 16 that may serve as a predicate for a § 3A1.4 enhancement, an offense must be listed in 18 U.S.C. 17 § 2332b(g)(5)(B) and, in addition, it must be an offense that . . . is calculated to influence or affect 18 the conduct of government by intimidation or coercion, or to retaliate against government conduct, 19 as provided by 18 U.S.C. § 2332b(g)(5)(A). Under the intended to promote prong, however, so 20 long as the defendant s offense was intended to encourage, further, or bring about a federal crime 21 of terrorism as statutorily defined, the defendant himself does not have to commit an offense listed 22 in § 2332b(g)(5)(B), and the defendant s offense need not itself be calculated as described in 11 1 § 2332b(g)(5)(A). See Stewart, 590 F.3d at 137; cf. Graham, 275 F.3d at 516 (pursuant to the 2 intended to promote prong, the offense of conviction itself need not be a Federal crime of 3 terrorism ). 4 A narrower reading of § 3A1.4 would defy common sense. If an offense cannot be intended 5 to promote a federal crime of terrorism unless the defendant himself committed one of the crimes 6 specified in § 2332b(g)(5)(B) or committed a crime that was itself calculated to influence, affect, or 7 retaliate against government conduct as required by § 2332b(g)(5)(A), § 3A1.4 would not apply to 8 defendants who clearly intend to promote federal crimes of terrorism committed by other persons. 9 For example, as the government suggests, a defendant, motivated solely by pecuniary gain, might 10 sell weapons to a terrorist organization. It would be absurd to conclude that such a defendant s 11 criminal conduct could not be subject to a § 3A1.4 enhancement because it was not itself a listed 12 offense that is calculated to influence or affect the conduct of government by intimidation or 13 coercion, or to retaliate against government conduct. 18 U.S.C. § 2332b(g)(5)(A). 14 To summarize, we confirm what we noted in Stewart and join the other Circuits that have 15 held that [a] defendant who intends to promote a federal crime of terrorism has not necessarily 16 completed, attempted, or conspired to commit the crime; instead the phrase implies that the 17 defendant has as one purpose of his substantive count of conviction or his relevant conduct the intent 18 to promote a federal crime of terrorism. Graham, 275 F.3d at 516; see also Stewart, 590 F.3d at 19 137; Arnaout, 431 F.3d at 1002; Mandhai, 375 F.3d at 1248. It follows that § 3A1.4 may apply 20 without a showing that the defendant s conduct constitutes an offense listed in 18 U.S.C. 21 § 2332b(g)(5)(B) or satisfies the calculation requirement set forth in 18 U.S.C. § 2332b(g)(5)(A). 22 B. Application 12 1 As our explication of the intended to promote prong of § 3A1.4 indicates, the district court 2 erred in concluding that, because Awan was convicted of a crime listed in 18 U.S.C. 3 § 2332b(g)(5)(B), i.e., violations of 18 U.S.C. § 2339A, there was no need to determine whether 4 the violation of § 1956 [or Awan s violations of § 2339A] [are] properly deemed a promotion of a 5 federal crime of terrorism for the purposes of § 3A1.4. Awan, 2007 WL 2071748, *1 n.6. In effect, 6 the district court assumed that the intended to promote prong requires a finding that Awan s 7 personal conduct satisfies the calculation requirement of § 2332b(g)(5)(A). But the government 8 should have been permitted to prove by a preponderance of the evidence that, even if Awan s crimes 9 of conviction and relevant conduct did not satisfy the calculation requirement for a federal crime of 10 terrorism, Awan s crimes and relevant conduct were intended to promote a federal crime of terrorism 11 committed or to be committed by other individuals in his case, KCF members who participated 12 in fundraising in the United States or attacks in India. 13 The government argued before the district court (1) that each of Awan s counts of conviction 14 was intended to promote a conspiracy to commit murder, kidnaping, or maiming outside the United 15 States in violation of 18 U.S.C. § 956(a), a federal crime of terrorism, and (2) that Awan s 16 international money transfer conviction was also intended to promote another federal crime of 17 terrorism, to wit, the provision of material support and resources to be used in a conspiracy to 18 commit murder, kidnaping, or maiming outside the United States as prohibited by 18 U.S.C. 19 § 956(a), in violation of 18 U.S.C. § 2339A. Although we express no views on the merits of these 20 factual contentions, we note that the application of § 3A1.4 in such circumstances does not require 21 a finding that Awan was personally motivated by a desire to influence or affect the conduct of 22 government. Rather, the government need only demonstrate that Awan intended to promote a crime 13 1 calculated to have such an effect, i.e., that his offenses were intended to promote a federal crime of 2 terrorism as defined in § 2332b(g)(5), whatever Awan s reason for committing them. See infra Part 3 II. The district court erred in not considering the government s arguments relating to the intended 4 to promote prong and, more generally, by in effect requiring the government to establish proof of 5 Awan s motive. See Awan, 2007 WL 2071748, at *4. This constitutes procedural error under 6 United States v. Gall, 552 U.S. 38 (2007) (stating that improperly calculating . . . the Guidelines 7 range constitutes procedural error, id. at 51). Thus, Awan s sentence is vacated and we remand 8 for reconsideration of the intended to promote prong of § 3A1.4 consistent with this opinion. 9 II. The Involved Prong of U.S.S.G. § 3A1.4 10 The government also challenges the district court s determination, pursuant to the involved 11 prong of § 3A1.4, that there was insufficient evidence to find that Awan s conduct was calculated 12 to influence or affect the conduct of government by intimidation or coercion, or to retaliate against 13 government conduct under 18 U.S.C. § 2332b(g)(5)(A). Awan, 2007 WL 2071748, at *4. The 14 government does not dispute that in the circumstances of this case and pursuant to this prong of 15 § 3A1.4, it was necessary for the district court to find this requirement satisfied in order to apply the 16 terrorism enhancement. It argues, instead, that the court committed clear error in concluding that 17 the calculation element was not proven by a preponderance of the evidence. 18 The district court reasoned as follows: 19 20 21 22 23 24 25 While the evidence at trial establishes that defendant provided funds to the KCF and that he knew what the KCF was likely to do with those funds, it is speculative to conclude that the defendant had any particular motive in mind and, in particular, that he was motivated by a desire to influence the policies of the Indian government or retaliate for some unspecified wrong. On the contrary, the evidence supports . . . a factual finding that the defendant had private purposes in mind, that he enjoyed associating with terrorists[, and enjoyed] the prestige or potential 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 influence obtained by associating with Panjwar, a leader of the KCF, and with the Pakistani intelligence services, the so called ISI. Indeed, the government itself has previously referred to this motivation. When defendant raised the issue of motivation in his Rule 29 motion, the government first argued (correctly) that there was no need to establish motive to establish criminal intent and then further argued that based on defendant s statement that he wanted to associate with terrorists, one motive for supporting Panjwar was a desire to associate with people he considered influential and important. Government s Rule 29 Brief, p. 34. Since I cannot find from the evidence before me that defendant was motivated by a desire to influence or retaliate against the Indian government, the motivational element of a federal crime of terrorism is not demonstrated by a preponderance of the evidence and the terrorist enhancements will not be applied. Id. (emphasis added) (footnotes omitted). The district court s analysis, however, addresses the wrong question. Though 16 § 2332b(g)(5)(a) has been referred to as encompassing a motivational element or requirement, see, 17 e.g., 142 Cong. Rec. H3305-01, H3337 (Apr. 15, 1996), that characterization is more confusing than 18 helpful. Section 2332b(g)(5)(A) does not require proof of a defendant s particular motive. Motive 19 is concerned with the rationale for an actor s particular conduct. See, e.g., United States v. Aguilar, 20 585 F.3d 652, 656, 660 (2d Cir. 2009) (discussing motive as underlying purpose); Wayne R. LaFave, 21 Substantive Criminal Law § 5.3 (2d ed. 2009) (discussing definitions of motive). Calculation is 22 concerned with the object that the actor seeks to achieve through planning or contrivance. See 23 Webster s Third New International Dictionary Unabridged 315 (1986) (defining calculated, in 24 pertinent part, as planned or contrived so as to accomplish a purpose or achieve an effect; thought 25 out in advance ). Calculation may often serve motive, but they are not, in fact, identical. Section 26 2332b(g)(5)(A) does not focus on the defendant but on his offense, asking whether it was 27 calculated, i.e., planned for whatever reason or motive to achieve the stated object. Thus, as 28 we noted in Stewart, the section is better understood as imposing a requirement that the underlying 15 1 felony [be] calculated to influence or affect the conduct of government by intimidation or coercion, 2 or to retaliate against government conduct. Stewart, 590 F.3d at 138 (emphasis added). Clearly, 3 a person may intend and may commit an offense that is so calculated even if influencing or 4 retaliating against government is not his personal motivation. Thus, a person who murders a head 5 of state, for instance, sure in the knowledge that his crime will influence or affect the conduct of 6 government, satisfies the terms of § 2332b(g)(5)(A) even if his particular motivation in committing 7 the murder is to impress a more established terrorist with his abilities. 8 Here, whatever Awan s motive might have been in committing the crimes for which he was 9 convicted, commission of crimes listed in § 2332b(g)(5)(B) satisfies the involved prong of the 10 terrorism enhancement so long as the government shows by a preponderance of the evidence that 11 Awan had the specific intent, Stewart, 590 F.3d at 138, to commit an offense that was calculated 12 to influence or affect the conduct of government by intimidation or coercion, or to retaliate against 13 government conduct. 18 U.S.C. § 2332b(g)(5)(A). Contrary to the district court s analysis, Awan s 14 motive is simply not relevant. See, e.g., United States v. Simon, 425 F.2d 796, 808-09 (2d Cir. 1969) 15 (Friendly, J.) (noting the distinction between the concepts of motive and criminal intent, and 16 concluding that even if no motive were shown at all the government could still prove the requisite 17 intent). 18 The government correctly points out that there is little doubt that Awan (1) knew that the 19 objective of Panjwar and the KCF was to influence the Indian government through violence, and 20 (2) knew that the money he provided to the KCF would be used toward that end. Awan may not 21 have been personally motivated by that objective. Awan may have been motivated, as the district 22 court found, by a desire for the prestige and potential influence obtained by associating with a 16 1 terrorist like Panjwar, while lacking any political motivation and, in particular, any motivation 2 having to do with India. Awan, 2007 WL 2071748, at *4 n.20. But the government could still 3 prove that Awan s offenses themselves were calculated to influence . . . the conduct of 4 government . . . even if he lacked a specific political motive for committing them. For example, 5 if the evidence showed that Awan engaged in criminal conduct with knowledge that confederates 6 solicited his actions to effectuate politically motivated bombings in India, or homicidal attacks on 7 that country s security forces or its political leaders, such proof could demonstrate that Awan s 8 crimes were calculated to influence the conduct of government even if he was not personally 9 motivated by that object. A hired assassin who kills a political leader at the behest of a terrorist 10 organization can hardly disclaim that his crime was calculated to influence the conduct of 11 government simply because he was motivated by greed rather than politics. We express no view on 12 whether the evidence here supports this argument. We merely conclude that the district court s 13 misconstruction of the involved prong of § 3A1.4 is further procedural error requiring remand. 14 III. Conclusion 15 Because the district court failed to consider the application of the intended to promote 16 prong of U.S.S.G. § 3A1.4 to Awan s conduct and misconstrued the involved prong, we VACATE 17 the sentence imposed by the district court and REMAND for further proceedings consistent with this 18 opinion. 19 17

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