U.S.A v. Farhane, Docket No. 07-1968-cr (L)

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Reena Raggi, Circuit
• Docket Number: Docket No. 07-1968-cr (L),Docket No. 07-5531-cr (CON)
• Parties: United States of America, Appellee, v. Abdulrahman Farhane, also known as "Abderr Farhan," and Rafiq Sabir, Defendants-Appellants.
• Decision Date: 04 February 2011

United States of America, Appellee,
v.
Abdulrahman Farhane, also known as "Abderr Farhan, " and Rafiq Sabir, Defendants-Appellants.

Docket No. 07-1968-cr (L)
Docket No. 07-5531-cr (CON)

UNITED STATES COURT OF APPEALS
For the Second Circuit

August Term, 2008
Argued: February 17, 2009
Decided: February 4, 2011

Before:

Winter, Raggi, Circuit Judges, and Dearie, Chief District Judge.¹

In this appeal from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge), defendant Rafiq Sabir contends that (1) 18 U.S.C. § 2339B, under which he was convicted for providing and conspiring to provide material support to a terrorist organization, is

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unconstitutionally vague and overbroad; (2) the trial evidence was insufficient to support his conviction; (3) the government's use of peremptory juror challenges exhibited racial bias in violation of the Fourteenth Amendment; (4) erroneous evidentiary rulings violated his rights to confrontation and/or a fair trial; (5) the district court abused its discretion in addressing alleged juror misconduct; and (6) the government's rebuttal summation deprived him of a fair trial. We reject these arguments as without merit.

Affirmed.

Judge Raggi concurs in part in a separate opinion.

Judge Dearie dissents in part in a separate opinion.

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

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

Reena Raggi, Circuit Judge:

I. Background.......................................[5]

A. 2001: The Initial FBI Investigation into Co-Defendant Tarik Shah.................[5]

B. 2004: Shah Offers to Support al Qaeda......................................... [6]

C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support........................................................... [7]

D. Prosecution and Conviction........................................................... [8]

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II. Discussion...................................[ 10]

A. 18 U.S.C. § 2339B Is Not Unconstitutionally Vague as Applied to Sabir's Case..........[10]

1. The Statutory Framework.............................................. [10]

2. Sabir's Vagueness Claim.......................................................... [13]

a. Sabir Fails to Demonstrate Facial Vagueness or overbreadth............................[13]

b. Sabir Fails To Demonstrate that § 2339B Is Unconstitutionally Vague as Applied to his Case....................................... [17]

(1) Sabir's Vagueness Claim Is Properly Reviewed as Applied...............................[17]

(2) The Standards for As-Applied Review...........................[19]

(3) Sabir's Vagueness Challenge to the Statutory Proscriptions Fails...........................[20]

(4) The "Medicine" Exception Does Not Render § 2339B Unconstitutionally Vague as Applied to Sabir................................................ [25]

B. The Trial Evidence Was Sufficient To Support Sabir's Conviction.......................... [29]

1. Count one: Conspiracy...............................[29]

2. Count Two: Attempt...................................[31]

a. Intent...............................................................[31]

b. Substantial Step........................................................[34]

(1) The "Substantial Step" Requirement Expands Attempt Beyond the Common Law.................... [34]

(2) Identifying a Substantial Step by Reference to the Crime Being Attempted.....................[35]

(3) The Evidence Manifests a Substantial Step Towards the Provision of Material Support in the Form of Personnel...................................... [38]

(4) The Dissent's Mistaken View of the Substantial Step Requirement........................ [40]

(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.................................[40]

(b) The Provision of Personnel and the Subsequent Provision of Expert Services

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by Such Personnel Are Distinct Forms of Material Support............................ [42]

(c) Upholding Sabir's Attempt Conviction Raises No Double Jeopardy Concerns...........47]

(d) No Government Conduct Precluded a Jury Finding of a Substantial Step............. [49]

C. The District Court Reasonably Rejected Sabir's Batson Challenge................. [50]

1. Prospective Juror #5............................................. [53]

2. Prospective Juror #26........................................................ [54]

3. Prospective Juror #27..................................................[56]

D. Sabir's Evidentiary Challenges Are Uniformly Without Merit.......................... [57]

1. Expert Witness Testimony.................................................[58]

a. Kohlmann's Testimony Satisfied the Enumerated Requirements of Rule 702.............59]

b. Kohlmann's Testimony Was Helpful to the Jury................... [60]

c. Kohlmann's Testimony Was Relevant..........................................[61]

d. Kohlmann's Testimony Did Not Reach Beyond the Government's Rule 16 Proffer.............[62]

2. Co-Conspirator Statements...............................[63]

a. Shah's Recorded Conversations with the Informant and the Undercover Were Admissible Under Fed. R. Evid. 801(d)(2)(E)............................. [63]

b. The Admission of Shah's Statements Did Not Violate Sabir's Right to Confrontation...................[67]

3. Prior inconsistent Statement........................... [67]

4. State-of-Mind Evidence................................. [69]

5. Rule 403 Objections...............................[7l]

a. The Shareef Materials......................................... [71]

b. The Poughkeepsie Mosque incident................................... [72]

c. Mujahideen Activities in Bosnia................................................ [73]

E. Summation Issues.............................................. [73]

F. Juror Misconduct...................................................... [78]

III. Conclusion..................................................................... [83]

Defendant Rafiq Sabir, whose birth name is Rene Wright, is a United States citizen

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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

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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 ...