634 F.3d 127 (2nd Cir. 2011), 07-1968-cr (L), United States v. Farhane

Docket Nº:07-1968-cr (L), 07-5531-cr (CON).
Citation:634 F.3d 127
Opinion Judge:REENA RAGGI, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Abdulrahman FARHANE, also known as
Attorney:Edward D. Wilford (Natali J.H. Todd, on the brief), New York, NY, for Defendant-Appellant. Jennifer G. Rodgers, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief), on behalf of Michael J. Garcia, United States Attorney for the Southern District of New ...
Judge Panel:Before: WINTER, RAGGI, Circuit Judges, and DEARIE, Chief District Judge.[1] Judge RAGGI concurs in part in a separate opinion. Judge DEARIE dissents in part in a separate opinion. REENA RAGGI, Circuit Judge, concurring in part: DEARIE, Chief District Judge, dissenting in part.
Case Date:February 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 127

634 F.3d 127 (2nd Cir. 2011)

UNITED STATES of America, Appellee,

v.

Abdulrahman FARHANE, also known as " Abderr Farhan," and Rafiq Sabir, Defendants-Appellants.

Nos. 07-1968-cr (L), 07-5531-cr (CON).

United States Court of Appeals, Second Circuit.

February 4, 2011

Argued: Feb. 17, 2009.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Edward D. Wilford (Natali J.H. Todd, on the brief), New York, NY, for Defendant-Appellant.

Jennifer G. Rodgers, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief), on behalf of Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: WINTER, RAGGI, Circuit Judges, and DEARIE, Chief District Judge.1

Judge RAGGI concurs in part in a separate opinion.

Judge DEARIE dissents in part in a separate opinion.

REENA RAGGI, Circuit Judge:

I. Background 132
A. 2001: The Initial FBI Investigation into Co-Defendant Tarik Shah 132
B. 2004: Shah Offers to Support al Qaeda 132
C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support 133
D. Prosecution and Conviction 133
II. Discussion 134
A. 18 U.S. C. § 2339B Is Not Unconstitutionally Vague as Applied to Sabir's Case 134
1. The Statutory Framework 134
2. Sabir's Vagueness Claim 136
a. Sabir Fails to Demonstrate Facial Vagueness or Overbreadth 136
b. Sabir Fails To Demonstrate that § 2339B Is Unconstitutionally Vague as Applied to his Case 138
(1) Sabir's Vagueness Claim Is Properly Reviewed as Applied 138
(2) The Standards for As-Applied Review 139
(3) Sabir's Vagueness Challenge to the Statutory Proscriptions Fails 140
(4) The " Medicine" Exception Does Not Render § 2339B Unconstitutionally Vague as Applied to Sabir 142
B. The Trial Evidence Was Sufficient To Support Sabir's Conviction 144
1. Count One: Conspiracy 144
2. Count Two: Attempt 145
a. Intent 145
b. Substantial Step 146
(1) The " Substantial Step" Requirement Expands Attempt Beyond the Common Law 146
(2) Identifying a Substantial Step by Reference to the Crime Being Attempted 147
(3) The Evidence Manifests a Substantial Step Towards the Provision of Material Support in the Form of Personnel 148
(4) The Dissent's Mistaken View of the Substantial Step Requirement 149
(a) Sabir Did More Than Express a Radical Idea When He Produced Himself as a Doctor Sworn To Work Under the Direction of al Qaeda 149
(b) The Provision of Personnel and the Subsequent Provision of Expert Services by Such Personnel Are Distinct Forms of Material Support 150
(c) Upholding Sabir's Attempt Conviction Raises No Double Jeopardy Concerns 153
(d) No Government Conduct Precluded a Jury Finding of a Substantial Step 153
C. The District Court Reasonably Rejected Sabir's Batson Challenge 154
1. Prospective Juror # 5 156
2. Prospective Juror # 26 156
3. Prospective Juror # 27 157
D. Sabir's Evidentiary Challenges Are Uniformly Without Merit 158
1. Expert Witness Testimony 158
a. Kohlmann's Testimony Satisfied the Enumerated Requirements of Rule 702 158
b. Kohlmann's Testimony Was Helpful to the Jury 159
c. Kohlmann's Testimony Was Relevant 159
d. Kohlmann's Testimony Did Not Reach Beyond the Government's Rule 16 Proffer 160
2. Co-Conspirator Statements 160
a. Shah's Recorded Conversations with the Informant and the Undercover Were Admissible Under Fed.R.Evid. 801(d)(2)(E) 160
b. The Admission of Shah's Statements Did Not Violate Sabir's Right to Confrontation 162
3. Prior Inconsistent Statement 163
4. State-of-Mind Evidence 164
5. Rule 403 Objections 164
a. The Shareef Materials 165
b. The Poughkeepsie Mosque Incident 165
c. Mujahideen Activities in Bosnia 165
E. Summation Issues 166
F. Juror Misconduct 168
III. Conclusion 170

Page 132 Defendant Rafiq Sabir, whose birth name is Rene Wright, is a United States citizen and licensed physician who, in May 2005, swore an oath of allegiance to al Qaeda and promised to be on call to treat wounded members of that terrorist organization in Saudi Arabia. Convicted after a jury trial in the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge ) of conspiring to provide and actually providing or attempting to provide material support to a terrorist organization in violation of 18 U.S. C. § 2339B, and sentenced to a 300-month term of incarceration, Sabir now challenges his conviction on various grounds. Specifically, he contends that (1) § 2339B is unconstitutionally vague and overbroad, (2) the trial evidence was insufficient to support his conviction, (3) the prosecution's peremptory jury challenges exhibited racial bias, (4) evidentiary rulings deprived him of the right of confrontation and/or a fair trial, (5) the district court abused its discretion in addressing alleged juror misconduct, and (6) the prosecution's rebuttal summation deprived him of a fair trial. For the reasons explained in this opinion, we conclude that these arguments lack merit. Accordingly, we affirm Sabir's judgment of conviction.2 I. Background A. 2001: The Initial FBI Investigation into Co-Defendant Tarik Shah Defendant Rafiq Sabir is a New York licensed physician, trained at Columbia University, who specializes in emergency medicine. In 2001, the Federal Bureau of Investigation began investigating Sabir's longtime friend Tarik Shah for the possible transfer of money to insurgents in Afghanistan. As part of that investigation, an FBI confidential informant known as " Saeed" cultivated a relationship with Shah, in the course of which Shah was recorded speaking openly about his commitment to jihad (holy war) in order to establish Sharia (Islamic law) and about his wish to provide " deadly and dangerous" martial arts training to mujahideen ( jihad warriors). Gov't Exh. (" GX" ) 802T at 1-2; GX 803T at 2-4; GX 804T at 3; Trial Tr. at 590-91, 601-03.3 During these conversations, Shah repeatedly identified Sabir as his " partner." GX 801T at 1; GX 807T at 3; see Trial Tr. at 903-04. B. 2004: Shah Offers to Support al Qaeda On March 3, 2004, Saeed and Shah traveled to Plattsburgh, New York, where Saeed introduced Shah to Ali Soufan, an undercover FBI agent posing as a recruiter for al Qaeda.4 In a series of recorded Page 133 meetings with Agent Soufan, Shah detailed his martial arts expertise and offered to travel abroad to train al Qaeda combatants. Shah also told Soufan about Sabir, " an emergency room doctor" who had been his " trusted friend[ ]" for more than 25 years. GX 902T at 2, 7. Explaining that he knew Sabir's " heart," Shah proposed that the two men join al Qaeda as " a pair, me and a doctor." Id. at 3, 23. At a subsequent meeting with Saeed, Shah reported that he had spoken in person with Sabir about this plan. Shah and Agent Soufan next met in Orlando, Florida, in April 2004, at which time Shah agreed to prepare a syllabus for a martial arts training course as well as a training video. Shah also questioned Soufan at this meeting about al Qaeda suicide bombings and asked whether he could receive, as well as provide, terrorist training. C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support For most of the time between May 2004 and May 2005, Sabir was out of the United States, working at a Saudi military hospital in Riyadh. On May 20, 2005, during a visit to New York, Sabir met with Saeed and Agent Soufan at Shah's Bronx apartment. Sabir told Soufan that he would soon be returning to Riyadh. He expressed interest in meeting with mujahideen operating in Saudi Arabia and agreed to provide medical assistance to any who were wounded. See GX 906T at 15, 87. He suggested that he was ideally situated to provide such assistance because he would have a car in Riyadh and " carte blanche" to move freely about the city. Id. at 67. To ensure that Shah and Sabir were, in fact, knowingly proffering support for terrorism, Soufan stated that the purpose of " our war, ... our jihad " is to " [e]xpel the infidels from the Arabian peninsula," id. at 22, and he repeatedly identified " Sheikh Osama" (in context a clear reference to Osama bin Laden) as the leader of that effort, see, e.g., id. at 31, 34, 59, 87, 98-99. Shah quickly agreed to the need for war to " [e]xpel the Jews and the Christians from the Arabian Peninsula," id. at 22, while Sabir observed that those fighting such a war were " striving in the way of Allah" and " most deserving" of his help, id. at 66. To permit mujahideen needing medical assistance to contact him in Riyadh, Sabir provided Soufan with his personal and work telephone numbers. See id. at 40, 83. When Shah and Soufan noted that writing down this contact information might create a security risk, Sabir encoded the numbers using a code provided by Soufan. See id. at 49-53. Sabir and Shah then participated in bayat, a ritual in which each swore an oath of allegiance to al Qaeda, promising to serve as a " soldier of Islam" and to protect " brothers on the path of Jihad " and " the path of al Qaeda." Id. at 106-08, 114-16. The men further swore obedience to " the guardians of the pledge," whom Soufan expressly identified as " Sheikh Osama," i.e., Osama...

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