United States v. Elshinawy
| Decision Date | 28 March 2018 |
| Docket Number | Criminal No. ELH-16-009 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MOHAMED Y. ELSHINAWY, Defendant. |
| Court | U.S. District Court — District of Maryland |
Defendant Mohamed Y. Elshinawy is a United States citizen of Egyptian descent, born in 1985. Although defendant spent much of his life in Egypt and Saudi Arabia, he began to travel frequently between Egypt and the United States, beginning in or about 2007. On December 11, 2015, defendant was arrested in the State of Maryland, where he then resided. ECF 6. About a month later, on January 13, 2016, he was indicted on charges that included conspiracy to provide and providing material support to ISIS, a designated foreign terrorist organization ("FTO"). ECF 19. Elshinawy entered a plea of guilty to all charges on August 15, 2017, and is awaiting sentencing.
This Memorandum Opinion resolves several issues pertinent to sentencing. Most significantly, it addresses (1) whether Elshinawy is subject to a 12-level terrorism enhancement under Section 3A1.4 of the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"), and (2) whether the defendant beached his proffer agreement with the government. I shall also briefly consider other potentially applicable sections of the Guidelines.
For the reasons that follow, I conclude that the defendant is subject to the terrorism enhancement. I reach that conclusion without relying on any information provided by the defendant during his proffer session with the government on August 2, 2017. Nevertheless, I am satisfied that the defendant has breached his proffer agreement.
On October 15, 2004, the United States Secretary of State designated al-Qa'ida in Iraq as a FTO. ECF 120 at 9. In May 2014 and September 2015, the Secretary of State amended the designation to add various aliases, including the Islamic State of Iraq and the Levant ("ISIL"); the Islamic State of Iraq and al-Sham ("ISIS"); the Islamic State of Iraq and Syria ("ISIS"); and Daesh, among other names.
The Indictment (ECF 19) contains four counts, as follows: conspiracy to provide material support or resources to ISIS, a designated FTO, i.e., personnel (including the defendant himself), services (including means and methods of communication), and financial services, in violation of 18 U.S.C. § 2339B(a)(1) and §§ 2339B(d)(1)(A), (D), (E), and (F) (Count One); providing and attempting to provide material support to ISIS, in the form of personnel (including the defendant), services (including means and methods of communication, and financial services, in violation of 18 U.S.C. § 2339B(a)(1) and §§ 2339B(d)(1)(A), (D), (E) and (F) (Count Two); unlawful financing of terrorism, in violation of 18 U.S.C. §§ 2339C(a)(1)(B), 2339C(a)(3) (Count Three); and willfully making materially false statements and representations to agents of the Federal Bureau of Investigation ("FBI"), in violation of 18 U.S.C. § 1001(a)(2) (Count Four). Id. The Indictment refers, inter alia, to Individual #1, who has since been identified as Tamer Elkhodary ("Elkhodary"), an Egyptian national who resides overseas. He is also defendant's childhood friend and a member of ISIS.
On August 15, 2017, the defendant entered a plea of guilty to all four counts of the Indictment (ECF 119). The defendant's Plea Agreement (ECF 120) exposes the defendant to amaximum sentence of 68 years of incarceration. Id. ¶ 3. Of import here, the terms of the Plea Agreement leave open the critical question of whether the defendant is subject to the twelve-level terrorism enhancement under U.S.S.G. § 3A1.4.
Counsel on both sides have devoted considerable time and effort to the issue of the terrorism enhancement, as well as to other issues relevant to sentencing under 18 U.S.C. § 3553(a), as evidenced by their voluminous and comprehensive submissions. Elshinawy's initial sentencing memorandum is docketed at ECF 138, supported by numerous exhibits. The government's initial sentencing memorandum is docketed at ECF 139, also with multiple exhibits. Defendant's reply is at ECF 143, with exhibits, and the government's reply is at ECF 145, with exhibits. Additional government exhibits are docketed at ECF 202 and ECF 208. Further, the government submitted a video that it claims is relevant under 18 U.S.C. § 3553(a) (ECF 219), as well as a copy of its PowerPoint presentation, used at a sentencing hearing. ECF 231. By my calculation, the parties' submissions well exceed 2,500 pages.
During the pendency of sentencing proceedings, several disputes arose between the parties. To start, on November 29, 2017, shortly before the Court was to hold the first sentencing hearing, the government claimed that the defendant breached his proffer agreement of July 14, 2017. See ECF 148 (government's letter of November 29, 2017); ECF 172-2 (proffer agreement). At its core, the basis of the claim rests on certain representations, assertions, and contentions contained in the sentencing memoranda submitted by defense counsel, which the government contends are materially different from the defendant's statements made during hisproffer on August 2, 2017. Therefore, the government argues that it is entitled to introduce relevant portions of defendant's proffer. The defense vigorously disputes the claim of breach.1
The matter concerning the proffer is tantamount to a case within a case, as the parties' flurry of submissions reflects. With regard to the proffer, the government's submissions include the following: ECF 148; ECF 155; ECF 164; ECF 172; ECF 195; ECF 204; ECF 215; and ECF 218. The defendant's submissions are docketed at ECF 151; ECF 179; ECF 187; ECF 199; ECF 210; and ECF 230.
The parties also vigorously disputed the admissibility of the opinion testimony of defendant's expert, Marc Sageman, M.D., Ph.D. On October 19, 2017, the government filed a motion to strike Dr. Sageman's testimony (ECF 125), which the defense opposed. ECF 152. See also ECF 155 and ECF 157. At the hearing on December 4, 2017, I orally denied the government's motion to bar the testimony of Dr. Sageman, for the reasons that I set forth on the record. He was received as a defense expert in terrorism, counter-terrorism, and psychiatry. See ECF 192 (Tr. of December 4, 2017), at 40-43.
Then, on December 8, 2017, the government disclosed that it had just learned the surprising news that on November 28, 2017, FBI agents involved in this case submitted to an on-the-record interview with two Associated Press reporters. ECF 181. Once a transcript of the interview was obtained, it was produced to the defense. Elshinawy suggests that the FBI agents' comments during the interview support his view that he is not subject to the terrorism enhancement because he "was not operational," had "no ties to any other ISIS members in theUnited States," and even the FBI did not believe the defendant was planning an attack. See ECF 199 at 3-5.
On December 4, 2017, December 5, 2017, February 12, 2018, and February 16, 2018, the court held sentencing hearings, at which both evidence and argument were presented. The parties also submitted proposed sentencing findings of fact and conclusions of law on February 13, 2018. See ECF 223 (defendant); ECF 225 (government).
Despite defense counsel's valiant effort on behalf of the defendant, they cannot turn the proverbial sow's ear into a silk purse.2 Without regard to use of the proffer material, and for the reasons stated below, I conclude that the evidence readily demonstrates that the terrorism enhancement applies here.
The terrorism enhancement under U.S.S.G. § 3A1.4 is "steep." United States v. Fidse, 778 F.3d 477, 481 (5th Cir. 2015) ("Fidse I"). Section 3A1.4 provides that if the offense of conviction "is a felony that involves, or was intended to promote a federal crime of terrorism," the resulting offense level is increased by 12 levels, and the defendant's actual criminal history category automatically becomes a category VI, regardless of the defendant's criminal history. U.S.S.G. § 3A1.4(a), (b). If, after the increase of 12 levels, the resulting offense level is less than 32, the court must increase the offense level to 32. U.S.S.G. § 3A1.4(a).
A "federal crime of terrorism" is a "key term." United States v. Chandia, 514 F.3d 365, 375 (4th Cir. 2008) ("Chandia I"). Under Application Note 1 to U.S.S.G. § 3A1.4, the term "'federal crime of terrorism' has the meaning given that term in 18 U.S.C. § 2332b(g)(5)."
A federal crime of terrorism under § 2332b(g)(5) consists of two components. First, the offense must constitute a violation of one or more enumerated felonies. The specified felonies include three of the offenses to which the defendant has pleaded guilty: 18 U.S.C. § 2339B () and 18 U.S.C. § 2339C (). Second, there is a "specific intent requirement," which means that the offense must be "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." See §§ 2332b(g)(5)(A), (B); see also Chandia I, 514 F.3d at 375-76.
Notably, the government bears the burden of proof. But, it need only prove the application of § 3A1.4 by a preponderance of the evidence. United States v. Fidse, 862 F.3d 516, 523 (5th Cir. 2017) ("Fidse II"); United States v. Wright, 747 F.3d 399, 407 (6th Cir. 2014); United States v. Chandia, 675 F.3d 329, 339-40 (4th Cir. 2012) ("Chandia III"); United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008).
In applying § 3A1.4, a district court must identify the particular federal crime of terrorism that the defendant intended to promote; assure satisfaction of the elements of § 2332b(g)(5)(A); and support its conclusions with reference to facts from the record. United States v. Graham, 275 F.3d 490, 517 (6th Cir. 2001). The Court explained in United...
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