U.S. v. Khan

• Decision Date: 01 September 2006
• Docket Number: No. 05-4893.,No. 04-4520.,No. 04-4521.,No. 05-4818.,No. 04-4519.,No. 05-4811.,04-4519.,04-4520.,04-4521.,05-4811.,05-4818.,05-4893.
• Citation: 461 F.3d 477
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Masoud Ahmad KHAN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Seifullah Chapman, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Hammad Abdur-Raheem, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Masoud Ahmad Khan, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Seifullah Chapman, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Hammad Abdur-Raheem, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

461 F.3d 477

UNITED STATES of America, Plaintiff-Appellee, v. Masoud Ahmad KHAN, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Seifullah Chapman, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Hammad Abdur-Raheem, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Masoud Ahmad Khan, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Seifullah Chapman, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Hammad Abdur-Raheem, Defendant-Appellee.

No. 04-4519.

No. 04-4520.

No. 04-4521.

No. 05-4811.

No. 05-4818.

No. 05-4893.

United States Court of Appeals, Fourth Circuit.

Argued: May 25, 2006.

Decided: September 1, 2006

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ARGUED: John Kenneth Zwerling, Zwerling, Leibig & Moseley, P.C., Alexandria, Virginia; Jonathan Shapiro, Alexandria, Virginia; William B. Cummings, Alexandria, Virginia, for Appellants. Gordon Dean Kromberg, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellee.

Before WIDENER and DUNCAN, Circuit Judges, and JOSEPH R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed in part; remanded in part by published opinion. Judge Duncan wrote the majority opinion, in which Judge Widener joined. Judge Goodwin wrote a separate opinion concurring in part and dissenting in part.

OPINION

DUNCAN, Circuit Judge:

Defendants Masoud Khan ("Khan"), Seifullah Chapman ("Chapman"), and Hammad Abdur-Raheem ("Hammad") appeal their convictions after a bench trial on various counts related to a conspiracy to wage armed conflict against the United States and a conspiracy to wage armed conflict against a country with whom the United States is at peace. Khan and Chapman also appeal those portions of their sentences related to multiple violations of 18 U.S.C. § 924(c). The government cross-appeals the district court's decision to sentence Hammad significantly below the range recommended by the Sentencing Guidelines.

For the reasons explained below, we affirm the convictions of all three defendants as well as the sentences of Khan and Chapman. However, we reverse Hammad's sentence as unreasonable and remand to the district court for re-sentencing.

Because of the lengthy and complex background of this case, we initially describe the facts and procedural history generally applicable to all of the defendants. Facts specific to each defendant will be set forth in the discussion of the arguments of each.

I.

Between 1999 and September 11, 2001, Khan, Chapman and Hammad attended the Dar al Arqam Islamic Center in Falls Church, Virginia where Ali Timimi ("Timimi"), a primary lecturer, spoke of the necessity to engage in violent jihad¹ against the enemies of Islam and the "end of time" battle between Muslims and non-Muslims. Several of the attendees, including Chapman and Hammad, organized a group to engage in activities in preparation for jihad.

In the spring of 2000, members of the group began simulating combat through paintball exercises² and practices at firing ranges. By early summer, the group was meeting every other weekend. Chapman, Hammad, and others brought AK-47 style rifles to paintball training and also practiced marksmanship. Members were required to follow three rules: don't tell anyone, don't bring anyone, and invoke the Fifth Amendment right against self-incrimination if questioned by the police.

Because Hammad and Chapman had prior military experience, they assisted in leading the paintball drills and conducting the training. Chapman eventually took over and increased the drills' intensity. Chapman told the group that members were going to learn to fight; he enforced Draconian training and imposed physical punishment for infractions of rules that were out-of-character for a recreational paint-ball pastime. For example, being made to push a car in neutral was the punishment meted out for tardiness. The group also learned combat skills, such as how to avoid a helicopter attack, that appear inconsistent with a recreational pursuit.

Members of the group had ties to Lashkar-e-Taiba ("LET"), the military wing of a Pakistani organization initially founded to conduct jihad against Russians in Afghanistan. Between 1999 and 2003, LET primarily focused on expelling India from Kashmir. Both through its website and through other means, LET proclaimed its support for and involvement in a number of violent acts, particularly against India. In addition, LET advertised that it provided free jihad training camps in Pakistan.

One member of the paintball group, Mr. Hamdi, openly discussed wanting to go to fight in Kashmir and ultimately die as a martyr in combat. Hamdi traveled to Pakistan in August 2000 and was admitted to the LET camps. While there, he fired on Indian positions in Kashmir. Upon his return, he rejoined the paintball group and informed the others about LET's mission to destroy India, Israel, and the United States.

In September 2000, FBI agents visited Chapman and asked him about the paintball activities. After this interview, members of the group discussed whether they should continue in light of the government's knowledge of their activities. They decided to do so, but with heightened secrecy.

Seeking more intense and realistic fighting experience in the summer of 2001, Chapman traveled to the LET camps in Pakistan. While there, he participated in training and fired various rifles and handguns, including at least one automatic weapon. During that time, Chapman also met an LET official in Pakistan by the name of Singh. In 2002, Singh tried to purchase over the internet a wireless video module and a control module for use in an unmanned aerial vehicle ("UAV"). Singh selected an airborne video system with a camera and transmitter able to transmit video images from a UAV back to a receiver from as far as 15 miles away. The video camera could be used in military reconnaissance and in helping aim artillery and other weaponry across enemy lines. Singh placed his order from England, but the vendor was unable to confirm the overseas credit card. Chapman and Khan assisted Singh in completing the purchases. In the summer of 2002, Singh visited Virginia, staying first with Chapman and then with Khan.

The terrorist attacks of September 11, 2001, affected both the focus of the paintball group and the relationship of its members to the Dar al Argam Islamic Center. That night, Timimi argued that the attacks should not be condemned. He was thereafter not invited to lecture at Dar al Argam, and the tapes of his speeches were destroyed. However, on September 16, 2001, Timimi met with the paintball group, including Khan and Hammad, at a member's house. Chapman, still at the LET camps, was not present. Timimi said that the September 11 attacks were justified and that it was the obligatory religious duty of those present to defend the Taliban against the American troops that were expected to invade Afghanistan in pursuit of Al-Qaeda. The discussion focused on training at the LET camps as necessary preparation to fight with the Taliban against the United States. Several of the members, including Khan, expressed their intent to train at the LET camps and to fight in Afghanistan after their training was complete. For purposes of their travel, they agreed that Khan would be their "emir," or leader.

Khan trained at the LET camps for approximately six weeks. During that time, he traveled through four different camps and received training in commando tactics, reconnaissance, hand-to-hand combat, and survival skills. He received instructions on and used weapons, including AK-47 automatic rifles, machine guns, anti-aircraft guns, rocket-propelled grenades, and mines. He performed sentry duty and routine maintenance tasks for LET. During this time, Khan left the camps on personal business at least once and returned shortly thereafter.

American troops began a ground war against the Taliban on or about October 20, 2001. By mid-November 2001, American and allied troops were defeating Taliban forces throughout northern Afghanistan. On November 13, 2001, the Taliban withdrew from the Afghan capital of Kabul, and forces allied with the United States took control of the city. By November 15, Taliban forces had retreated to Kandahar. In November 2001, while at LET camp, Khan learned through radio reports that American forces were quickly defeating the Taliban in Afghanistan. Further, he learned that Pakistan had closed its border with Afghanistan and that LET would not facilitate his travel there. Moreover, Pakistani authorities were aggressively removing foreigners from the camps. As a result, Khan left the camps in the fall of 2001 without ever having reached Afghanistan.

The government's investigation into the activities of Khan, Chapman, Hammad, and their colleagues became public in February 2003, when a search warrant was executed at Timimi's house. On March 24, 2003, the FBI approached Caliph Abdur Raheem ("Caliph"), one of the paintball members who was tried with defendants in this case and acquitted, and obtained a statement from him. Caliph told the FBI that paintball was used for jihad training and that the reason the trainees had acquired AK-47-style rifles was that they were the type of weapon used overseas. When Hammad learned of the admissions, he called a colleague with the "bad news" that Caliph had "cracked."

As a result of the government's investigation, Hammad, Chapman, and Khan, along with eight others—Caliph, Donald Surratt II, Yong Ki Kwon, Muhammed Aatique, Khwaja Hasan, Randall Todd Royer, Ibrahim Ahmed Al-Hamdi, and Sabri Benkhala—were indicted in June 2003 for various offenses concerning a conspiracy...