United States v. Smith

Decision Date01 December 2022
Docket Number20-4414
Citation54 F.4th 755
Parties UNITED STATES of America, Plaintiff – Appellee, v. Alexander Samuel SMITH, a/k/a Amir Alexander, Defendant – Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: James Walter Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC, Asheville, North Carolina; Allie Jordan Hallmark, HAMILTON WINGO LLP, Dallas, Texas, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Charles D. Swift, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, Texas, for Appellant. William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before GREGORY, Chief Judge, and DIAZ and HEYTENS, Circuit Judges.

Affirmed in part, reversed in part, judgment vacated, and case remanded for resentencing by published per curiam opinion, in which Chief Judge Gregory and Judge Heytens joined in full. Judge Diaz joined the per curiam opinion in part. Judge Heytens wrote a concurring opinion. Judge Diaz wrote an opinion dissenting in part.

PER CURIAM:

A jury convicted Alexander Samuel Smith on two counts of lying to the FBI, violating 18 U.S.C. § 1001(a)(2). The district court sentenced him to concurrent 60-month prison terms. On appeal, Smith challenges (1) the district court's denial of his motion to dismiss Count Two of his indictment as multiplicitous, (2) the sufficiency of the evidence supporting the jury's verdict, (3) the district court's allegedly prejudicial statements to the jury, (4) the district court's refusal to give an entrapment instruction, and (5) the district court's application of a terrorism enhancement at sentencing.

As explained below, we reverse the district court's denial of the motion to dismiss Count Two, vacate the judgment, and remand for resentencing. We otherwise affirm.

I.
A.

Acting on an informant's tip, the FBI began investigating Smith in the summer of 2014. Smith had asked the informant for help in traveling to Syria to participate in its civil war. As far as the investigating agents knew, Smith wanted to join the armed conflict between Syria's government and various factional forces, including the Islamic State of Iraq and Syria ("ISIS").1 ISIS had recently solicited Westerners to join its fight.

Agents soon learned of a connection between Smith and the Kodaimatis—a father and son who were already under federal investigation for supporting ISIS. Smith once worked for the Kodaimatis and traveled to Syria with them in 2006. Based on that connection and the informant's tip, agents became concerned that Smith was considering joining ISIS in Syria. So agents had the informant refer Smith to a second informant, Abu Khalid. Khalid would act as an ISIS recruiter who could facilitate Smith's travel plans.

Smith contacted Khalid and scheduled an in-person meeting for August 2014. At the meeting, Smith told Khalid that he wanted to return to Syria to help defend a family whom he had once visited. Smith explained that the family lived near a city divided between three warring groups, including ISIS.

Khalid responded that he was helping "brothers" go to Syria to join ISIS. S.J.A. 2.2 He asked Smith whether he "wanted to be with" the "leader of ISIS." J.A. 665. Smith answered, in Arabic, "inshallah." J.A. 665. But if Smith wanted to join ISIS, Khalid said, he would have to pledge allegiance to the group's leader. Khalid explained that Smith would be "going to fight ... under command of" ISIS, asking whether Smith would accept that. S.J.A. 8. Smith again responded in Arabic: "[n]a'am." S.J.A. 8. Khalid later testified that "inshallah" and "na'am" were affirmations.

For his part, Smith discussed his ability to fight, telling Khalid that he knew about hand-to-hand combat and weapons but lacked formal training. Before leaving, Smith mentioned that he had a passport and would be ready to travel in a few weeks. The pair made plans to talk again.

Between August and November 2014, Smith and Khalid met three more times. In their second and third meetings, Smith reaffirmed his desire to travel to Syria. Khalid told Smith that he'd be "expected to kill for ISIS if he went to Syria," and Smith said it would be "no problem." J.A. 693.

Because Smith often mentioned that he didn't have the money to buy his airfare to Syria, Khalid introduced Smith to Bilal, a third informant, to help him earn money for the trip. Bilal worked with Smith on odd jobs, including construction projects and car restorations. In the fourth meeting with Khalid, Smith offered to obtain discount airfare (or, a "buddy pass") for Khalid should he ever need it. Smith's then-girlfriend worked in customer service for an airline and could buy such passes.

Smith and Khalid didn't meet again until March 2015. Khalid asked Smith if he'd be able to get a buddy pass for Mohamed Hilal, a fictitious person the FBI had invented. Khalid told Smith that Hilal was important to ISIS and planning to travel to Syria.

Using another person's credit card, Smith and his girlfriend bought Hilal the pass. But when the pass went unused, Smith emailed Khalid to ask what happened. Khalid responded that Hilal got confused and didn't use the pass. Smith then cut off all contact with Khalid, saying he couldn't "have anything to do with this." S.J.A. 80.

B.

In February 2016, the FBI coordinated with the U.S. Attorney's Office in the Western District of North Carolina to issue a grand jury subpoena for Smith's now-wife. After his wife received the subpoena, Smith called the FBI and spoke with Agent Ronald Godfrey—one of the agents investigating him. Smith agreed to visit the FBI's office and "explain the circumstances about [the] buddy pass." J.A. 537.

Godfrey, armed with knowledge of Smith's communications with Khalid, interrogated Smith. Godfrey asked Smith whether he spoke with Khalid about "possibly going to Syria," and Smith replied, "no." S.J.A. 81 at 1:55:55–1:56:00.3 Godfrey also asked, "[H]ave you ever talked with anyone that you expressed to someone that you wanted to go to Syria and fight?" J.A. 797. Smith answered, "No, I've told them that I wished there was something I could do for people, but I never had any plans to go there and do anything." J.A. 797. And Godfrey asked if Smith had ever "talked with anyone that [Smith] wanted to go to Syria and join ISIS." J.A. 798. Smith responded, "No, we've talked – I talk to numerous – you have to understand the Muslim community. There's so much stuff going on now in the Muslim community with everything." J.A. 798. Though Godfrey warned Smith that he could get in trouble for lying to the FBI, providing a copy of § 1001, Smith stood firm that he never had any plan or intent to go to Syria.

Godfrey's questioning then turned to Hilal. Godfrey asked Smith if he knew that Hilal "was planning to use the buddy pass" to travel to Syria and join ISIS. S.J.A. 81 at 2:04:55–2:05:20. Smith said that he didn't know "anything [Hilal] was planning to do" and that he "didn't know what [Hilal] had in his mind [or] what his plans were." S.J.A. 81 at 2:05:20–2:05:30.

C.

A grand jury indicted Smith on two counts of making a materially false statement to a federal agent in violation of 18 U.S.C. § 1001(a)(2). Count One charged Smith with "falsely stating to FBI Special Agents then investigating a matter involving international terrorism that he had never discussed his desire or plans to travel to Syria." J.A. 20. Count Two charged him with telling the FBI "he did not know that [Hilal] intended to use the buddy pass procured by [Smith] to travel and support ISIS." J.A. 21. Smith moved to dismiss Count Two as multiplicitous, but the district court denied his motion.

The case proceeded to a jury trial. The government called four witnesses: Godfrey, Khalid, an expert on ISIS and other terrorist organizations, and an airline employee. The jury also heard recordings of Smith's conversations with Godfrey and Khalid.4

At the close of the government's case, Smith moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Smith argued that the government hadn't shown that he knowingly and willfully made a false statement or that his statements were material to the FBI's investigation. The district court denied Smith's motion. Smith then recalled Godfrey before unsuccessfully renewing his Rule 29 motion at the close of all evidence.

Smith asked the district court to instruct the jury on an entrapment defense. He claimed the FBI had instigated him to commit his alleged crimes through the subpoena and other pressure tactics the agency employed on his wife. The court declined, reasoning that Smith hadn't shown that the FBI induced him to lie. The court did, however, instruct the jury on informants, explaining that "the government is lawfully permitted to use decoys and deception to conceal the identity of its informants." J.A. 982.

The jury returned a guilty verdict on both counts and found that each offense involved international terrorism.

D.

Smith's presentence investigation report first recommended a 63- to 78-month prison term, based on a total offense level of 26 and a criminal history category of I. But the government objected, arguing that U.S.S.G. § 3A1.4's terrorism enhancement should apply. The probation office agreed with the government, increasing Smith's total offense level to 32 and his criminal history category to VI. Smith's Guidelines sentence became 192 months' imprisonment—the statutory maximum.

The district court later overruled Smith's objection to the terrorism enhancement but varied downward, imposing two concurrent 60-month terms of imprisonment and three years' supervised release. The court certified that its sentence would be appropriate regardless of the terrorism enhancement.

This appeal followed.

II.

We begin with Smith's claim that the district court erred by declining to dismiss Count Two as multiplicitous. "The rule against...

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