U.S. v. Biheiri

• Decision Date: 09 February 2005
• Docket Number: No. 1:04CR201.,1:04CR201.
• Parties: UNITED STATES of America, v. Soliman S. BIHEIRI, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

356 F.Supp.2d 589

UNITED STATES of America, v. Soliman S. BIHEIRI, Defendant.

No. 1:04CR201.

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

February 9, 2005.

COPYRIGHT MATERIAL OMITTED

David H. Laufman, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Wilfred Ward Yeargan, III, Law Offices of Wilfred Ward Yeargan III, Fairfax, VA, Ashraf Wajih Nubani, Busch & Nubani PC, Annandale, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

In its post-9/11 determination to crack down on domestic terrorism financing, the government twice prosecuted defendant Soliman Biheiri. Yet, neither prosecution directly charged terrorism financing, as the statute of limitations had expired on such charges.¹ Instead, the government sought to hold Biheiri accountable for his terrorism financing activities through the application of various Sentencing Guidelines enhancements and departures. Although the government won convictions in both cases, it fell short in its efforts to enhance Biheiri's sentence to account for his terrorism financing activities. This Memorandum Opinion addresses the issues raised and resolved in Biheiri's second sentencing proceeding.

I.

The first prosecution of Biheiri occurred in October 2003 and focused solely on his activities in acquiring United States citizenship by naturalization. Specifically, the government in that prosecution alleged and proved at trial that Biheiri (i) procured his naturalization by fraud, in violation of 18 U.S.C. § 1425(a), and (ii) swore to false statements made in his naturalization application, in violation of 18 U.S.C. § 1015(a). At sentencing, the government sought to increase Biheiri's Guidelines sentence through the application of a terrorism-related sentencing enhancement pursuant to U.S.S.G. § 3A1.4 or, alternatively, to accomplish the same result via an upward departure pursuant to U.S.S.G. § 5K2.0. For various reasons, both attempts were unsuccessful, and in January 2004, after being stripped of his American citizenship, Biheiri was sentenced to twelve months incarceration.²

While Biheiri was serving this sentence, a federal grand jury returned a second indictment against him. This three-count indictment was based on events that occurred on June 15, 2003, when Biheiri, on returning to the United States after approximately one year abroad, was consensually interviewed for almost five hours by federal agents at Washington Dulles International Airport. According to the indictment, Biheiri made material false statements to the agents during the interview. Specifically, Counts 1 and 2 alleged that Biheiri, in violation of 18 U.S.C. § 1001(a), falsely told the agents that he did not have a business relationship with, nor had he handled money for, either Mousa Abu Marzook (Count 1) or Sami Al-Arian (Count 2), both of whom were affiliated with terrorist organizations. At all times relevant to the indictment, Marzook was a senior member of HAMAS, a Palestinian terrorist organization responsible, among other things, for suicide bombings against Israeli civilian and military targets. See Biheiri I, 299 F.Supp.2d at 596-97. In 1995, Marzook, as one of HAMAS's political leaders, was designated a Specially Designated Terrorist ("SDT") under the IEEPA. See id. at 598. Al-Arian, although not himself an SDT, was at all relevant times alleged to be a senior member of Palestinian Islamic Jihad, an SDT organization. See id. Count 3 alleged that on the same date, Biheiri violated 18 U.S.C. § 1546(a) by possessing and using a U.S. passport that he had obtained by making false statements on his naturalization application. In July 2004, a federal grand jury returned a superseding indictment that supplemented Counts 1 and 2 by adding the allegation that Biheiri's false statements concerning his business relationships with Marzook and Al-Arian had served to obstruct an investigation of a federal crime of terrorism. By adding this additional allegation, the government sought to lay the foundation for a terrorism-related sentencing enhancement pursuant to § 3A1.4.³

In August 2004, Biheiri moved to dismiss Counts 1 and 2 on various grounds, including collateral estoppel. In particular, Biheiri argued that the government should be collaterally estopped from seeking a § 3A1.4 sentencing enhancement based on the false statements alleged in Counts 1 and 2 because it had relied on the same false statements in its earlier unsuccessful attempt impose a § 3A1.4 enhancement in the first prosecution. For reasons stated in a Memorandum Opinion dated October 19, 2004, Biheiri's motion was granted only with respect to Count 2. See United States v. Biheiri, 341 F.Supp.2d 593, 603-04 (E.D.Va.2004) ("Biheiri II"). Accordingly, on the eve of trial, only Counts 1 and 3 of the superseding indictment remained.

On October 6, 2004, immediately prior to the commencement of his trial, Biheiri pled guilty to Count 3 of the superseding indictment. Accordingly, Biheiri was tried solely on Count 1, and on October 12, 2004, the jury returned a verdict of guilty on that count. By agreement of the parties prior to trial, the question whether Biheiri's false statements had obstructed a federal terrorism investigation was not submitted to the jury, but was instead reserved for the Court to resolve, if necessary, at sentencing.⁴ The jury's verdict, therefore, constituted a finding that Biheiri made material false statements to federal agents about his relationship with Marzook, in violation of 18 U.S.C. § 1001(a), but not a finding that in doing so he had obstructed a federal terrorism investigation such that he should receive a § 3A1.4 sentencing enhancement.

In post-trial memoranda and oral argument, the parties disputed various Sentencing Guidelines issues, including the application of the § 3A1.4 terrorism enhancement. Although the recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), holds that the Sentencing Guidelines ranges are no longer mandatory, Justice Breyer's majority opinion in that case sensibly teaches that the Sentencing Guidelines must still be taken into account pursuant to 18 U.S.C. § 3553(a) in fashioning an appropriate sentence. See id. at 757; see also United States v. Hughes, 396 F.3d 374, 377-78 (4th Cir.2005). Importantly, however, neither reached nor addressed in Booker is the question of the proper weight to be accorded to the Guidelines results in the sentencing calculus under § 3553(a): Are the Guidelines entitled to "heavy weight," as one district court has ruled, or is a less deferential approach warranted, as another has concluded? Compare United States v. Wilson, ___ F.Supp.2d ___, No. 2:03-CR-882 PGC (D.Utah. Jan. 13, 2005) ("heavy weight") with United States v. Ranum, 353 F.Supp.2d 984 (E.D.Wis.2005) (noting inconsistencies between Guidelines and § 3553(a) factors). Also not reached or decided in Booker is the somewhat more subtle question whether the Sentencing Guidelines "range" to be considered in the § 3553(a) sentencing calculus is the range determined by the base offense level, reflecting only what the jury found, or the range determined by the adjusted or final offense level, reflecting also the sentencing judge's determinations as to enhancements, departures, and downward adjustments. Cf. Hughes, at 380-82 (approving use of a sentencing range based on the final offense level, but the question was neither squarely presented nor explicitly addressed). Nor is this an unimportant point, for it is easy to see that if the final offense level sentencing range is used as the § 3553(a) factor and also accorded "heavy weight," the result might well be precisely what Booker condemned, namely the sentencing of a defendant on the basis of Sentencing Guidelines factors found by a judge by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt. See Booker, ___ U.S. at ___, 125 S.Ct. at 756.

In any event, only the first question — the weight to be accorded the Guidelines range — is material here, as Biheiri rendered the second question moot by waiving any right he might have had under Booker to have a jury find all the facts relevant to his sentence. See supra note 4. The key to answering the first question is found in § 3553 itself. Subsection (a) lists the factors to be considered in imposing a sentence, but does not differentiate among the factors in terms of the importance or weight to be accorded to any of them. Subsection (b), now invalidated by Booker, formerly served this function by explicitly making Guidelines sentencing mandatory. With the demise of subsection (b), the statute no longer provides any explicit basis for according greater weight to the Guidelines or to any other factor in every case. Yet, this does not end the analysis, as implicit guidance on the proper role of the Sentencing Guidelines can be found in subsections (a)(4), (a)(6), and (c), coupled with the statute's structure. Subsection (a)(4) requires the Guidelines sentencing range to be considered as one of the factors in sentencing. Subsection (a)(6) sheds light on the proper role of the Guidelines sentencing ranges by calling upon sentencing judges to take care to avoid unwarranted disparities, a difficult task without the sort of benchmark that the Guidelines provide.⁵ Nor should the importance of this goal be understated; it is central to a just sentencing process, given that the essence of justice is that like cases should be treated alike, and importantly, should be seen to be treated alike, which brings us to the important role of subsection (c). Subsection (c) requires the sentencing judge to state the reasons for the imposition of a particular sentence, including the reasons for any deviation from the Guidelines sentencing range and the effects of the other § 3553(a) factors in setting the sentence. In providing the reasons for imposing a particular sentence, the sentencing judge can...