U.S. v. Benkahla

• Decision Date: 03 August 2007
• Docket Number: No. 1:06cr9(JCC).,1:06cr9(JCC).
• Citation: 501 F.Supp.2d 748
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Sabri BENKAHLA, Defendant.

501 F.Supp.2d 748

UNITED STATES of America, v. Sabri BENKAHLA, Defendant.

No. 1:06cr9(JCC).

United States District Court, E.D. Virginia, Alexandria Division.

August 3, 2007.

COPYRIGHT MATERIAL OMITTED

Gordon D. Kromberg, United States Attorney's Office, Alexandria, VA, for Plaintiff.

John A. Keats, Law Offices of John A. Keats, Fairfax, VA, Jonathan Shapiro, Law Office of Jonathan Shapiro, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

CACHERIS, District Judge.

The matter before the Court is the determination of Defendant Sabri Benkahla's sentence. The central issue to be decided is whether Defendant should receive a sentencing enhancement pursuant to United States Sentencing Guideline § 3A1.4, more commonly referred to as the "terrorism enhancement."

Introduction

On August 26, 2004, Defendant testified before a federal grand jury regarding his participation in a jihad training camp and his use of automatic weapons and rocket propelled grenades ("RPGs").¹ Defendant's testimony centered around a trip to Pakistan and possibly Afghanistan during the summer of 1999, as well as e-mail correspondence referring to the trip. Defendant testified that during his 1999 trip he did not participate in any training relevant to combat, witness any training relevant to violent jihad or combat, handle or discharge a firearm or an explosive device, or witness anyone else discharge a firearm or an explosive device. During the same grand jury appearance, Defendant also testified that he had never fired an AK-47 or an RPG. The Government questioned Defendant about two e-mails he had sent referring to "studying in Afghan" and traveling to a "place far, far away," which was "top secret info." Defendant testified that these e-mails did not refer to jihad training in Afghanistan. The Government also questioned Defendant about a third email in which Defendant referred to an individual named Haroon. Defendant testified that he could not identify Haroon or the recipient of the e-mail.

On November 16, 2004, Defendant testified before the grand jury for a second time. During this appearance, Defendant testified that he saw no one other than Pakistani Army soldiers carrying firearms during his trip in the summer of 1999, and that he had never fired an AK-47, an RPG, or an automatic weapon of any kind. Because Defendant first traveled from the United States to Great Britain and then purchased a ticket to Pakistan, the Government questioned Defendant about his reasons for doing so. Defendant testified that he was not sure whether he would go to Pakistan until he arrived in London and that he decided to make the trip after meeting, for the first time, an individual in Great Britain who agreed to show him around Pakistan.

On April 22, 2004 and July 7, 2004, Defendant made statements to an agent of the Federal Bureau of Investigation ("FBI") conducting an investigation into jihad training camps under the control of terrorists espousing violence against the United States. During this interview, Defendant stated to the FBI agent that he did not know certain details about specific individuals with whom he had interacted (i.e., the last name, whether he had ever met or spoken with that individual, and if so, whether jihad had been discussed). Defendant also told the FBI agent that he had never participated in jihad training or fired an AK-47 or RPG.

On February 5, 2007, a jury convicted Defendant on all counts: false declarations to the grand jury on August 26 and November 16, 2004, (respectively, Counts I and II); obstruction of justice (Count III); and false statements to an FBI Agent (Count IV). After this conviction, Defendant moved for a judgment of acquittal and a new trial. The Court granted Defendant's motion for judgment of acquittal as to Count II, but denied the motion as to all other grounds. Defendant now comes before the Court for sentencing.

Whether USSG § 3A1.4 Should Apply

The issue before the Court is whether Defendant should receive a sentencing enhancement pursuant to United States Sentencing Guideline § 3A1.4, which provides for sharp sentencing increases for any felony "that involved, or was intended to promote, a federal crime of terrorism." USSG § 3A1.4. The effect of the enhancement is unequivocally severe, as its application maximizes a defendant's criminal history category to Category VI, and increases the offense level to a minimum of thirty-two.² To display its effect, the enhancement's application in this case increases Defendant's guidelines range from 33 to 41 months to 210 to 262 months.

Defendant's offenses neither directly "involved" nor were "intended to promote" a federal crime of terrorism. Instead, the Government argues that § 3A1.4 applies because of Application Note 2 (hereinafter, "Note 2"), which states:

an offense that involved (A) harboring or concealing a terrorist who committed a federal crime of terrorism (such as an offense under 18 U.S.C. § 2339 or 2339A); or (B) obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that federal crime of terrorism.

USSG § 3A1.4, comment. (n,2)(emphasis added). Despite this expansive language, it appears that no court has ever applied the enhancement for "obstructing an investigation of a federal crime of terrorism," and in only two such cases has the Government requested it.³

For an enhancement under Note 2 to be proper, the offense for which a defendant has been convicted must have involved [1] an "investigation of a federal crime of terrorism" and [2] "obstructing" that investigation. The guidelines provide no guidance as to what constitutes "an investigation of a federal crime of terrorism" or "obstructing" within the meaning of this seemingly broad enhancement. Accordingly, the Court must define the limits of these terms, and upon doing so, the Court will be able to decide whether the application of the enhancement is proper.

I.... "An Investigation of a Federal Crime of Terrorism"

A. The scope of "an investigation of a federal crime of terrorism" within § 3A1.4.

To determine the scope of "an investigation of a federal crime of terrorism," the Court considered: (1) the definition of a "federal crime of terrorism" as incorporated into the guideline under 18 U.S.C. § 2332b(g)(5); (2) the text of § 3A1.4; and (3) the intended scope of § 3A1.4. The Court concludes that, in determining whether the terrorism enhancement should apply for obstructing an investigation under Note 2, the enhancement is only appropriate for obstructing investigations into specific offenses of terrorism, and not general terrorism investigations or intelligence gathering.

1. The definition of a "federal crime of terrorism" limits the enhancement's application to specific investigations

For purposes of the § 3A1.4, "federal crime of terrorism" has the meaning given that term in 18 U.S.C. § 2332b(g)(5), defined in the conjunctive as: "an offense that — (A) is calculated to influence or affect the' conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of ... [a list of enumerated offenses]." Given these, requirements for a "federal crime of terrorism," the enhancement's application therefore requires: (1) an investigation into one or more of the enumerated crimes listed in the statute; and (2) that the investigated crimes satisfy the motivational element, namely, that they are "calculated to influence or affect the conduct of government by intimidation or coercion." 18 U.S.C. § 2332b(g)(5)(B).

To determine whether the first requirement has been satisfied, the inquiry is simple. A court need only look to what offenses or crimes were contemplated by the grand jury or investigating agency to ensure that they are listed as one of the enumerated offenses under § 2332b(g)(5).

With respect to the motivational element, however, the inquiry is considerably more complex. As conceded at sentencing, the Government must show that the potential violations that were the subject of the investigation were "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." 18 U.S.C. § 2332b(g)(5)(B). In the context of an investigation into a specific offense, potential or completed, this requirement is of little consequence. For investigations into specific offenses, such as a plot to bomb a government building with explosives, they are detailed by a discrete set of facts and circumstances. Such facts and circumstances could include: who specifically was being investigated, what offense or offenses were the subject of the investigation, and what was the motivation for committing the offense. In the context of an investigation into specific, discrete offenses, the Government would be able meet its burden by pointing to these specific facts and circumstances to demonstrate that the particular offenses subject of the investigation were "calculated to influence or affect the conduct of government."

However, in the context of a general, wide-ranging investigation, such demonstration is not possible. In such an investigation, the Government cannot state with any degree of precision what potential violations they are investigating, but it is simply hoping to gain information that would be potentially helpful for intelligence or prosecutorial purposes in the United States' ongoing struggle against terrorism. If the Government cannot point to any specific offenses that it is investigating, it obviously cannot point to any facts or circumstances to show whether those violations were "calculated to influence or affect the conduct of government," and thus, it cannot meet its burden⁴ Since the Government cannot meet this burden in a general investigatory context, then it must also be concluded that obstructing a general terrorism investigation cannot support the proper application of...