U.S. v. Ashqar

• Decision Date: 02 October 2009
• Docket Number: No. 07-3879.,07-3879.
• Citation: 582 F.3d 819
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abdelhaleem Hasan Abdelraziq ASHQAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

582 F.3d 819

UNITED STATES of America, Plaintiff-Appellee, v. Abdelhaleem Hasan Abdelraziq ASHQAR, Defendant-Appellant.

No. 07-3879.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 2009.

Decided October 2, 2009.

Joseph M. Ferguson, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

William B. Moffitt, Attorney (argued), Moffitt & Brodnax, Alexandria, VA, for Defendant-Appellant.

Before POSNER, RIPPLE and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Abdelhaleem Hasan Abdelraziq Ashqar, a Palestinian, was convicted of obstruction of justice and criminal contempt after he refused to answer certain questions before a grand jury. Because the grand jury was investigating alleged terrorist acts of Hamas, the district court applied the terrorist enhancement in U.S.S.G. § 3A1.4. As a result, Ashqar's advisory Guideline sentence range on one count jumped from 24-30 months to 210-262 months. The district court chose a point roughly in the middle of those extremes, 135 months' imprisonment.

While Ashqar challenges his conviction—arguing that the district court erred by refusing to give his proposed jury instruction defining "corruptly"—he devotes most of his brief on appeal to various challenges to his sentence. He argues that applying the terrorist enhancement violates his Sixth Amendment right to a jury trial because it increases his sentence based on judicially-found facts and on conduct for which he was acquitted. Alternatively, even if it was constitutional to apply the enhancement, he argues that the district court failed to make the necessary predicate findings: that Ashqar intended to promote a federal crime of terrorism, that the grand jury was investigating a specific terrorist act, and that this crime satisfied the definition of "federal crime of terrorism" in 18 U.S.C. § 2332b(g)(5). Finally, Ashqar contests the procedural reasonableness of his sentence by arguing that the district court neglected some of his arguments under 18 U.S.C. § 3553(a).

After a careful review of the transcripts and evidence, we find that the district court committed no errors. We therefore affirm Ashqar's conviction and sentence.

I

For over ten years, the Federal Bureau of Investigation has been investigating Ashqar for his role as a communication and financial conduit for the terrorist organization Hamas. That investigation included direct meetings between Ashqar and the FBI during the 1990s, wiretaps of Ashqar's telephone and fax machine, a search of Ashqar's home, and a review of Ashqar's financial records. In February 1998, a grand jury sitting in the Southern District of New York subpoenaed Ashqar to testify about his dealings with Hamas. Ashqar appeared but refused to answer questions. He was found in civil contempt and jailed, but he was released after he staged a hunger strike. The FBI's investigation into Hamas continued, and Ashqar was subpoenaed for a second time in June 2003 to appear before a grand jury sitting in the Northern District of Illinois. On June 25, 2003, Ashqar appeared before the grand jury and again refused to answer any questions about his dealings with Hamas. With few exceptions, Ashqar responded to any question posed by the Assistant U.S. Attorney ("AUSA") or the grand jury by reading a prepared statement that summarized his reasons for refusing to testify. The AUSA explained to Ashqar that the grand jury was investigating terrorist activities by Hamas, and he provided the citations for the statutes covering the crimes under investigation. He told Ashqar that his testimony was "critically important" to the grand jury's investigation and that Ashqar's refusal made the investigation "extremely difficult." Ashqar persisted in his refusal to talk, however, even after the court granted Ashqar immunity and ordered him to testify. At this point, the AUSA warned Ashqar that the government could prosecute him for criminal contempt and obstruction of justice. For these crimes, the attorney cautioned, Ashqar could receive maximum penalties of ten years and life, respectively. Ashqar responded by rereading his prepared statement. At this point, the court found Ashqar in civil contempt and the hearing ended.

As the AUSA had warned, the government charged Ashqar with criminal contempt, in violation of 18 U.S.C. § 401(3), and obstruction of justice, in violation of 18 U.S.C. § 1503, for his refusal to testify on June 25. It also charged Ashqar with a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), based on his two refusals to testify. At trial, Ashqar asked the district court to use his proposed jury instruction to define the term "corruptly" for purposes of § 1503, but the court instead read the Seventh Circuit Pattern Jury Instruction. On February 1, 2007, almost three months after the trial began, the jury found Ashqar guilty of obstruction and criminal contempt and acquitted him of racketeering.

The sentencing hearing lasted two days and included testimony by FBI Special Agent David Bray about the grand jury's investigation. According to Bray, the grand jury was investigating Hamas's support structure in the United States, especially the people offering financial, logistical, and communication assistance for Hamas's terrorist activities abroad. Bray named several of the people and terrorist acts under investigation, including the murder of a Palestinian peace advocate, Sari Nusseibah; the murder of three Israeli engineers; the kidnapping and murder of an Israeli soldier, Ilan Saldoan; and the April 2003 suicide bombing at a bar in Tel Aviv.

Based on Bray's testimony, the evidence at trial, and the transcript of Ashqar's testimony before the grand jury, the district court applied the terrorism enhancement in U.S.S.G. § 3A1.4 to the range applicable to Ashqar's criminal contempt conviction. That enhancement popped the advisory Guideline range up to 210 to 262 months. After listening to argument from both parties, including a 90-minute allocution by Ashqar, and considering the factors in 18 U.S.C. § 3553(a), the district court imposed a total sentence of 135 months' imprisonment: 120 months for the obstruction count and 135 months for the criminal contempt count, to run concurrently. The district court considered the sentence a balance between the need for deterrence, the seriousness of the act, and Ashqar's lack of a violent history.

II

A

We first dispense with Ashqar's challenge to his conviction. His only complaint relates to the district court's refusal to use his definition of the term "corruptly." As long as the district court's chosen instructions represent a complete and correct statement of law, we will not disturb them. United States v. Matthews, 505 F.3d 698, 704 (7th Cir.2007).

A person obstructs justice if she "corruptly . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice." 18 U.S.C. § 1503. Ashqar asked the district court to define "corruptly" as follows:

To act corruptly means to act knowingly and dishonestly with an improper motive or with an evil or wicked purpose with the specific intent to influence, obstruct, or impede the due administration of justice.

The court instead chose to use the Seventh Circuit Pattern Jury Instruction To sustain each charge of obstruction of justice, the government must prove the following propositions:

. . .

Third, that the defendant's acts were done corruptly, that is, with the purpose of wrongfully impeding the due administration of justice.

As Ashqar acknowledges, we have already approved the instruction used by the district court. See Matthews, 505 F.3d at 704 (holding that "with the purpose of wrongfully impeding the due administration of justice" accurately defines "corruptly"); see also Arthur Andersen LLP v. United States, 544 U.S. 696, 705, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005) (noting that the word "corruptly" is "normally associated with wrongful, immoral, depraved, or evil" (emphasis added)). Moreover, we considered in Matthews the definition proposed by Ashqar—"with an improper motive or with an evil or wicked purpose"—and noted that it unnecessarily narrows the meaning of the term. Matthews, 505 F.3d at 706. Ashqar argues that Matthews is distinguishable: defendant Matthews was charged with perjury, obstruction of justice, and conspiracy, while Ashqar faced a charge of criminal contempt in addition to obstruction of justice. Without his definition, he argues, his two charges cover the same ground (and are thus multiplicitous), because both have as their crux his refusal to testify. While Ashqar might be correct that the crimes in Matthews were slightly different, this is a distinction of no consequence.

Ashqar's argument draws on language from United States v. Macari, 453 F.3d 926 (7th Cir.2006), that implies that something is done "corruptly" if the act had as its "natural and probable effect" the obstruction of justice. If this is enough to make the act corrupt, Ashqar argues, then the government has to prove only that Ashqar knowingly refused to testify—and that is exactly what it must show to prove criminal contempt. We are not persuaded. Even if we assume that Ashqar correctly interprets Macari, his argument ignores the fact that the district court's instruction was not addressing the nexus between the corrupt state of mind and the judicial proceeding. See United States v. Aguilar, 515 U.S. 593, 599, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995). Instead, as Aguilar instructs, the court's instruction focused on the "intent to influence judicial or grand jury proceedings." Id. The crimes of obstruction of justice and criminal contempt each require proof of at least one different element: contempt requires proof that Ashqar disobeyed a court order, 18 U.S.C. § 401(3), while obstruction requires proof that Ashqar refused to testify with the purpose of wrongfully impeding justice. No multiplicity...