United States v. Daoud, s. 19-2174

• Decision Date: 17 November 2020
• Docket Number: 19-2185,19-2186,Nos. 19-2174,s. 19-2174
• Citation: 980 F.3d 581
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Adel DAOUD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

980 F.3d 581

UNITED STATES of America, Plaintiff-Appellant,

v.Adel DAOUD, Defendant-Appellee.

Nos. 19-2174

19-2185

19-2186

United States Court of Appeals, Seventh Circuit.

Argued September 25, 2020

Decided November 17, 2020

Georgia N. Alexakis, Tiffany Ardam, Attorney, Attorney, Office of the United States Attorney, Chicago, IL, Barry Jonas, Assistant U.S. Attorney, Office of the United States Attorney, for Plaintiff-Appellant.

Thomas Anthony Durkin, Attorney, Durkin & Roberts, Chicago, IL, Joshua Herman, Attorney, Law Office of Joshua G. Herman, Chicago, IL, for Defendant-Appellee.

Before Ripple, Brennan, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam. Fortunately, the bomb was fake, and the FBI arrested him on the spot. Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb. Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad. Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing. The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes. The government appeals that sentence on the ground that it was substantively unreasonable. We agree. We vacate the sentence and remand for resentencing.

I. Background

A. FBI Investigation and Bomb Plot

Daoud came to the FBI's attention after a series of online posts, communications, and searches that evinced a desire to engage in violent jihad (terrorist attacks in the name of Islam). This online activity began as early as September 2011, the month that Daoud turned 18. At the time, Daoud was living with his parents in a suburb of Chicago. In his online posts and communications, Daoud described himself as a "terrorist;" wrote that he wanted to die a martyr; shared songs about violent jihad; and encouraged killing and dying in the name of Allah and committing violent acts of jihad against the United States as revenge for its killing of Muslims. Daoud also sought out, consumed, and shared violent jihadist materials, including Inspire magazine, an English-language publication by al-Qaeda that promotes violent jihad and teaches readers how to create and use weapons and destructive devices like bombs.

In May 2012, to assess Daoud's threat level, two undercover FBI agents initiated online contact with him using fictitious identifies. One of the agents posed as a 17-year-old Arab youth living in Australia. The other posed as an older Arab man living in Saudi Arabia. One of the agents contacted Daoud by email to praise a song that Daoud had posted on Yahoo Answers and described as "Terrorist Music." The other agent initiated contact a few days later. With the agents’ (false) interest and encouragement, Daoud began sharing jihadist materials with them, including Inspire . He also conveyed his interest in engaging in violent jihad and referenced his recruitment efforts and plans for an attack in the United States or overseas. When one of the agents questioned the propriety of taking lives, Daoud explained why it was justified. At one point, Daoud said: "I want to be even worse to the Americans, the [sic] Osama bin Laden and sheikh Anwar al-Awlaki put together. I want to be a great terrorist ... and be great encouragement for Muslims to do the same." Other times, though, Daoud himself questioned the propriety of terrorism. He also referenced his "procrastination" and "laziness," saying, "All I do is talk." Sometimes he mentioned plans to go to college abroad. While communicating with the undercover agents, Daoud continued researching and sharing jihadist materials. For example, he inquired about the price of an AK-47 and sought information about the propriety of blowing up a train, bringing down a flight, and assembling explosives.

In conversations with Daoud, one of the agents referenced a fictitious cousin named "Mudafar," who was supposedly an operational terrorist living in the United States. Eventually, the agent connected Daoud with a third undercover FBI agent posing as Mudafar. Between July and September 2012, Daoud and the 38-year-old Mudafar communicated electronically and met in person six times. At their first meeting, Daoud identified himself as a terrorist and expressed his interest in committing a terrorist attack in the United States or overseas. He suggested using "flying cars" or driving a truck with knives on it through a crowded area. At Mudafar's urging, Daoud compiled a list of potential locations for a terrorist attack. The list included shopping malls, nightclubs, bars, liquor stores, and military bases. Daoud shared the list with Mudafar at their second meeting. He also latched onto Mudafar's idea of using a car bomb. Daoud emphasized the importance of inflicting mass casualties, making international news, and ensuring that people knew "Muslim extremists" were responsible for the attack. When Mudafar questioned Daoud's resolution, Daoud assured him, "this is in my heart." Nevertheless, Daoud wavered at some points and sought religious guidance from Mudafar and Mudafar's fictional sheikh (leader) about the propriety of killing people. Daoud also clarified his personal limitations, saying he could not make a bomb or "do anything" by himself, and describing his ideas as "crazy fantasies."

Eventually, Daoud found "the perfect place" for a carbomb attack: Cactus Bar & Grill in Chicago. Daoud explained that Cactus was a prime target because it was a crowded night-time destination. Daoud and Mudafar began planning the attack. Daoud surveilled and photographed the location and picked a site for the car bomb. Mudafar described the bomb that he would supply and the mass carnage it would cause. Daoud expressed pleasure with the bomb's size. On the day before the planned attack, Mudafar showed Daoud the (fake) 1,000-pound car bomb, which he had installed in a Jeep Cherokee. Daoud said he wanted to have "direct action" in the attack and asked if he could press the button to detonate the bomb.

On the night of September 14, 2012, Mudafar and Daoud met to carry out the planned attack. On the drive over, Daoud prayed aloud for the many people who would be killed. He also prayed for the attack to make international news, and that it not be his last operation. Once there, Daoud parked the Jeep in front of the Cactus bar. In a nearby alley, Mudafar told Daoud that there were 200 people in the area. Daoud responded: "[T]his is like the lottery." Shortly before pressing the button, Daoud asked if women could be killed in the United States. Mudafar said yes. Daoud was arrested upon pressing the button.

Daoud was charged with attempting to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2)(D) (Count 1) and attempting to destroy a building used in interstate commerce with an explosive, in violation of 18 U.S.C. § 844(i) (Count 2).

B. Solicitation of FBI Agent's Murder

Approximately two months later, while Daoud was in pretrial custody, he solicited the murder of the undercover FBI agent who had posed as Mudafar. Daoud offered to pay his cellmate, a gang member, to enlist one of his gang associates to kill the undercover agent. He gave his cellmate the agent's phone number to help track him down. Daoud's cellmate reported the offer to federal authorities and agreed to record future conversations with Daoud. In exchange for his cooperation, authorities paid the cellmate $15,000, which he used to pay his bond and get out of jail.

In recorded conversations, Daoud called the undercover agent a "spy" and suggested different ways of killing him. He asked that the killing be quick and untraceable. More than once, Daoud's cellmate asked Daoud if was sure he wanted to go through with the plan. Daoud said yes. Daoud's cellmate purportedly made the arrangements and confirmed the target by showing Daoud a photograph of the undercover agent (supposedly taken by his associates but actually provided by authorities). Finally, the cellmate instructed Daoud to make a phone call authorizing the killing, which Daoud did. When the job was done (or so Daoud thought), Daoud asked for the "gory details." Daoud's cellmate asked Daoud if he regretted the decision and Daoud said, "Hell no."

On August 29, 2013, Daoud was charged with soliciting a crime of violence, in violation of 18 U.S.C. § 373(a) (Count 1); murder-for-hire, in violation of 18 U.S.C. § 1958(a) (Count 2); and obstruction of justice, in violation of 18 U.S.C. § 1512(a)(1)(A) (Count 3).

The recorded conversations between Daoud and his cellmate reveal that Daoud's cellmate was verbally abusive toward him. For example, he mocked Daoud's religious beliefs, called him homosexual as an insult, and threatened to hurt him.

C. Assault on Another Inmate

In December 2014, a little over two years after soliciting the FBI agent's murder, Daoud physically attacked a fellow inmate because the inmate drew a picture of the Prophet Muhammad. Daoud jumped on the inmate and punched him. Before his September 2012 arrest, Daoud had suggested in online posts that people who drew pictures of the Prophet Muhammad should be killed.

Daoud and the other inmate later reconciled. But in May 2015, Daoud sent the same inmate to the hospital after approaching him in his sleep and stabbing him repeatedly in the throat and head using sharpened toothbrushes and a toothbrush with a razor blade attached to it. The attack ended when the inmate's cellmate intervened.

The day before the attack, a news story had aired on the jail television about violence toward individuals who drew pictures of the Prophet Muhammad. According to another inmate, Daoud was near the television when the story aired and seemed agitated. An inmate who witnessed the attacked described Daoud as "zoned out" and...