U.S. v. Khalil

• Decision Date: 01 August 1999
• Docket Number: Docket Nos. 98-1723
• Citation: 214 F.3d 111
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. LAFI KHALIL, GAZI IBRAHIM ABU MEZER, Defendant-Appellants. (L), 99-1134
• Court: U.S. Court of Appeals — Second Circuit

Page 111

214 F.3d 111 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. LAFI KHALIL, GAZI IBRAHIM ABU MEZER, Defendant-Appellants.

Docket Nos. 98-1723(L), 99-1134

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: January 7, 2000

Decided: May 31, 2000

Appeals from judgments of the United States District Court for the Eastern District of New York, Reena Raggi, Judge, convicting defendant Abu Mezer of conspiring and threatening to use a weapon of mass destruction, 18 U.S.C. §2332a, and using and carrying a firearm during and in relation to crimes of violence, 18 U.S.C. §924(c); and convicting defendant Khalil of possessing a fraudulent alien registration receipt card, 18 U.S.C. §1546.

Affirmed.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] BERNADETTE MIRAGLIOTTA, Assistant United States Attorney, Brooklyn, New York (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

BRUCE McINTYRE, New York, New York, for Defendant-Appellant Khalil.

LAWRENCE F. RUGGIERO, New York, New York, for Defendant-Appellant Abu Mezer.

Before: KEARSE, WALKER, and CALABRESI, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Lafi Khalil and Gazi Ibrahim Abu Mezer appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York following a jury trial before Reena Raggi, Judge. Abu Mezer was convicted on two counts of conspiring and threatening, respectively, to use a weapon of mass destruction, in violation of 18 U.S.C. §2332a (1994 & Supp. III 1997), and one count of using and carrying a firearm during and in relation to those crimes, in violation of 18 U.S.C. §924(c) (1994); he was sentenced principally to two concurrent terms of life imprisonment, to be followed by 30 years' imprisonment. Khalil was convicted of possessing a fraudulent alien registration receipt card ("green card"), in violation of 18 U.S.C. §1546 (1994 & Supp. III 1997); in an upward departure from the range prescribed by the Sentencing Guidelines ("Guidelines"), he was sentenced principally to 36 months' imprisonment, to be followed by a three year term of supervised release. On appeal, Abu Mezer raises various challenges to his conviction; he challenges his sentence on double jeopardy grounds. Khalil challenges his sentence on the ground that the upward departure was unexplicated and unreasonable. For the reasons that follow, we affirm both judgments.

I. BACKGROUND

The events leading to the arrests of Abu Mezer and Khalil, as described by government witnesses at a pretrial suppression hearing and at trial, were as follows. In late July 1997, Abdelrahman Mossabah, who was then living with Abu Mezer and Khalil in an apartment in Brooklyn, New York, informed officers of the New York City Police Department that Abu Mezer and Khalil had bombs in the apartment and planned to detonate them soon. According to Mossabah, Abu Mezer had said he was "very angry because of what happened between Jerusalem and Palestine." (Suppression Hearing Transcript, June 1, 1998, at 18.) Abu Mezer had shown Mossabah pipe bombs in a black bag in the apartment and told Mossabah that he planned to take the bombs to a crowded subway or bus terminal and detonate them. Mossabah gave the police a key to the apartment, diagrammed its layout, indicating where the bombs were kept, and led a team of officers to the building before dawn on July 31, 1997.

In the raid on the apartment, two police officers approached the bedroom where the bombs had been shown to Mossabah and heard "ruffling" noises. They opened the door and entered the bedroom, yelling "police, don't move, get down," and saw two men lying on the floor or on a mattress. One of those men lunged, grabbed the gun of one of the officers, and grappled with him; the other man crawled toward a black bag that the officers believed might contain a bomb. The officers shot and wounded both men, disabling them. The wounded men, later identified as Khalil and Abu Mezer, were handcuffed and taken to the hospital.

The officers peeked into the black bag and saw wiring. Technicians thereafter examined the bag's contents; they found pipe bombs, observed that a switch on one of the bombs had been flipped, and were concerned that the bomb would explode before they could disarm it. Other officers went to the hospital and questioned Abu Mezer that morning as to how many bombs there were, how many switches were on each bomb, which wires should be cut to disarm the bombs, and whether there were any timers. Abu Mezer answered all of these questions, stating that he had made five bombs, that they contained gunpowder, and that each would explode when its four switches were flipped. Abu Mezer was also asked whether he had planned to kill himself in the explosion, to which he responded simply, "'Poof.'"

Abu Mezer was questioned again that afternoon after being given Miranda warnings. He said, inter alia, that he had made the bombs, "want[ing] to blow up a train and kill as many Jews as possible" because he opposed United States support for Israel. (Trial Transcript ("Tr.") 1696.) Abu Mezer also stated that he was "with Hamas" (Tr. 1740), a terrorist organization, and had planned to bomb the "B" subway train at 8a.m. on July 31 because there were "a lot of Jews who ride that train" (Tr. 1696). Questioned as to where he had bought the bomb components, Abu Mezer said he had purchased gunpowder at a gun shop in North Carolina. He had used it to make the bombs found in the raid and had been planning to make one additional bomb in the future. Abu Mezer said that when he realized the police were in his apartment that morning, he had wanted to blow himself up.

Both Abu Mezer and Khalil were indicted on one count of threatening "to use a weapon of mass destruction, to wit, a pipe bomb," in violation of 18 U.S.C. §2332a, and one count of conspiring to do so, in violation of that section. In addition, Abu Mezer was charged with one count of "us[ing] and carry[ing] a firearm, to wit, a pipe bomb" during and in relation to the weapon-of-mass-destruction crimes, in violation of 18 U.S.C. §924(c); and Khalil was charged with one count of possessing a fraudulent green card, in violation of 18 U.S.C. §1546.

Prior to trial, Abu Mezer moved to suppress the statements he had made at the hospital; as described in Part II.B. below, his motion was largely denied. At trial, the government introduced Abu Mezer's unsuppressed statements. It also presented testimony from an expert witness describing the witness's creation and experimental detonation of a mock-up bomb simulating those found in Abu Mezer's apartment; and it introduced a letter that Abu Mezer had sent to the United States Department of State two days before the raid, enclosing a matchstick, and stating, inter alia, "we are warning all US citizen embassy building and everything belong [sic] to the Jewish and Americans in or out said united [sic] stat [sic] or anywhere around the world we are ready by our soul blood boombes [sic] ...." In addition, in light of Abu Mezer's argument in his opening statement that he had never intended to detonate the bombs but had merely hoped to obtain money from a United States government program offering rewards for information on terrorism, the government introduced into evidence three photographs that Khalil had taken of Abu Mezer in North Carolina a few weeks prior to the arrests. One photograph showed Abu Mezer holding a shotgun horizontally above his head; the second showed him wearing a scarf that belonged to Khalil and was of a type typically worn by young Palestinian males to signify their roles as extreme warriors; in the third, Abu Mezer was kneeling on the floor in the posture of a martyr in prayer.

Abu Mezer testified at trial in his own defense. He stated that he had come to the United States because he wanted to punish the United States for supporting Israel. He said he had written a letter to the FBI threatening multiple bombings because he wanted to "send them a message" about United States support of Israel. (Tr. 2210-11.) In July 1997, he and Khalil had gone to North Carolina looking for work. While there, Abu Mezer bought materials with which to make bombs, including gunpowder, pipes, caps, wires, switches, and batteries, and brought them back to New York with him. Abu Mezer said that he had made five bombs. In constructing the bombs, he added dozens of nails so that the explosion would inflict as much damage as possible. He planned to use the bombs "against the Jewish [people] of the United States"; with one of his bombs, he planned to "[b]low[] [him]self up" and take "as many Jews as possible" with him. (Tr. 2212.) Abu Mezer denied, however, any plan to bomb the subway.

Abu Mezer testified that he was alone when he purchased the bomb-making materials in North Carolina. He said he had never told Khalil of his purchases or of their intended use; and he had never shown Khalil any parts of the bombs or discussed with him using a bomb in any way.

Abu Mezer was convicted on all three of the counts against him. As discussed in Part II.A. below, he was sentenced principally to two concurrent terms of life imprisonment on the §2332a counts, to be followed by a 30-year term of imprisonment on the §924(c) count.

Khalil was acquitted on the §2332a counts but was found guilty on the §1546 counterfeit green card charge. As discussed in Part II.C. below, the Guidelines imprisonment range for Khalil's offense, given his criminal history, was 0-6 months. In an upward departure based on Khalil's other extensive fraudulent conduct, the district court sentenced Khalil principally to 36 months' imprisonment. These appeals followed.

II. DISCUSSION

On appeal, Abu Mezer contends principally that the district court erred in denying his motion to suppress...