United States v. Khalid Aldawsari , 740 F.3d 1015 ( 2014 )


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  •      Case: 12-11166   Document: 00512510591      Page: 1   Date Filed: 01/23/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 12-11166                     January 23, 2014
    Lyle W. Cayce
    UNITED STATES OF AMERICA                                                 Clerk
    Plaintiff–Appellee
    v.
    KHALID ALI-M. ALDAWSARI
    Defendant–Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
    W. EUGENE DAVIS, Circuit Judge:
    In this case, Appellant challenges the validity of his criminal conviction
    and sentence of life imprisonment. In particular, Appellant argues that the
    district court improperly denied his motion to suppress evidence, delivered an
    invalid instruction to the jury, and erred when calculating Appellant’s
    sentence. As set forth below, we disagree with each of these arguments and
    therefore affirm Appellant’s conviction and sentence.
    I.
    Appellant is a national of Saudi Arabia who initially came to the United
    States to study chemical engineering. According to the evidence presented
    during Appellant’s trial, Appellant spent several months during late 2010 and
    early 2011 acquiring nearly all of the chemicals necessary to manufacture a
    powerful explosive known as picric acid. The evidence also indicated that
    Case: 12-11166    Document: 00512510591    Page: 2   Date Filed: 01/23/2014
    No. 12-11166
    Appellant had become committed to “jihadist operations” and compiled a list
    of targets for bombing attacks. These targets included the Dallas residence of
    former President George Bush, the Cotton Bowl, and various Dallas festivals.
    In 2011, the FBI conducted searches of Appellant’s apartment and
    computer pursuant to the Foreign Intelligence Surveillance Act (“FISA”).
    These searches were authorized by the Foreign Intelligence Surveillance Court
    (“FISC”) under 50 U.S.C. § 1805(a) and § 1824(a) based on an ex parte showing
    of probable cause to believe that Appellant was “an agent of a foreign power”
    under 50 U.S.C. § 1801. Appellant was arrested on February 23, 2011.
    On March 9, 2011, Appellant was indicted with one charge of attempted
    use of a weapon of mass destruction under 18 U.S.C. § 2332a(a)(2). Prior to
    trial, Appellant filed a motion to suppress all items of evidence that had been
    collected during the FISA searches. The district court denied this motion,
    however, and the government relied extensively on this evidence during
    Appellant’s trial.
    Appellant was found guilty on June 27, 2012. The district court then
    imposed a sentence of life imprisonment, which was the maximum sentence
    permissible under the sentencing guideline range as calculated by the district
    court. Appellant now challenges his conviction and sentence on the grounds
    discussed below.
    II.
    Appellant argues first that his motion to suppress evidence gathered
    pursuant to FISA was improperly denied. As explained in United States v. El-
    Mezain, 
    664 F.3d 467
    , 568-70 (5th Cir. 2011), this court makes a de novo
    decision as to the merits of Appellant’s motion to suppress such evidence. To
    do so, we must conduct our own in camera and ex parte review of the classified
    materials that were submitted to the FISC in support of the FISA application
    and subsequently reviewed by the district court.
    2
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    No. 12-11166
    According to the Foreign Intelligence Surveillance Court of Review
    (“FISCR”), searches conducted pursuant to FISA do not violate the Fourth
    Amendment so long as they are not performed with the “sole objective of
    criminal prosecution.” 1       Rather, such searches must be at least partially
    motivated by a purpose “to protect the nation against terrorists and espionage
    threats directed by foreign powers.” 2 So long as this requirement is satisfied,
    according to a number of circuit courts, there is no constitutional bar to the
    admission of evidence collected pursuant to FISA in criminal prosecutions. 3
    Although this court did not explicitly address the constitutional question in El-
    Mezain, we did hold as a statutory matter that evidence can be collected during
    a FISA search where protection against terrorist threats is at least a
    “significant purpose” of the FISA search, and that such evidence may then be
    introduced in a criminal prosecution. 4
    As indicated in Appellant’s briefs and clarified during oral argument,
    Appellant does not challenge this framework on constitutional or statutory
    grounds.     He does urge this court, however, to fulfill its responsibility to
    conduct its own review of the classified materials submitted during Appellant’s
    case to the FISC and the district court. Even though Appellant has never been
    granted access to these classified materials, Appellant considers it probable
    that the FISA searches were not validly authorized under 50 U.S.C. § 1805 and
    § 1824. As these sections of FISA provide, the FISC may authorize searches
    only upon a showing of probable cause to believe that the searches’ target is
    “an agent of a foreign power” as defined under 50 U.S.C. § 1801. But as
    1 In re Sealed Case, 
    310 F.3d 717
    , 735, 742-46 (Foreign Int. Surv. Ct. Rev. 2002).
    2 
    Id. at 746.
           3 See United States v. Duka, 
    671 F.3d 329
    , 338-46 (3d Cir. 2011); United States v. Abu-
    Jihaad, 
    630 F.3d 102
    , 127-29 (2d Cir. 2010); United States v. Ning Wen, 
    477 F.3d 896
    , 898-
    99 (7th Cir. 2007); United States v. Damrah, 
    412 F.3d 618
    , 625 (6th Cir. 2005).
    4 See 
    El-Mezain, 664 F.3d at 568-70
    .
    3
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    No. 12-11166
    Appellant correctly observes, no evidence of any foreign power’s involvement
    in Appellant’s essentially “domestic” crime was presented at trial. From this
    silence in the trial record, Appellant speculates that the government likely
    never made the requisite showing in the ex parte proceedings before the FISC.
    Based on our own thorough review of the classified materials in camera,
    however, we find that Appellant’s inference is incorrect. As we did in El-
    Mezain, we conclude in this case that the FISA searches were properly
    authorized and that the evidence collected during the FISA searches was
    properly admitted. 5 The FISC’s authorization of these searches was indeed
    justified by a showing of probable cause to believe that Appellant satisfied one
    of the definitions of “an agent of a foreign power” under 50 U.S.C. § 1801. The
    objective of the searches, moreover, was not solely the criminal prosecution of
    the Appellant, but also the protection of the nation against terrorist threats.
    As Appellant concedes, that is the end of the inquiry. 6 Although the facts
    supporting this component of the FISA authorizations were not elements of
    Appellant’s crime and were never shared with the jury during Appellant’s trial,
    this does not affect the merits of Appellant’s motion to suppress. We therefore
    affirm the district court’s denial of that motion. 7
    5 See 
    id. 6 See
    Sealed 
    Case, 310 F.3d at 735
    , 742-46; 
    Duka, 671 F.3d at 338-46
    ; 
    Abu-Jihaad, 630 F.3d at 127-29
    ; Ning 
    Wen, 477 F.3d at 898-99
    ; 
    Damrah, 412 F.3d at 625
    .
    7 During this appeal, Appellant has not challenged the district court’s denial of his
    motion for disclosure of the classified materials under 50 U.S.C. § 1806. This section of FISA
    authorizes courts to disclose such materials to “an aggrieved person” on various grounds.
    This section of FISA also contains mandatory language under 50 U.S.C. § 1806(g), which
    provides that “[i]f the court determines that the surveillance was lawfully authorized and
    conducted, it shall deny the motion of the aggrieved person except to the extent that due
    process requires discovery or disclosure.” We note the government’s agreement during oral
    argument that, for example, FISA-related materials containing exculpatory evidence or
    evidence tending to impeach a government witness would need to be disclosed under this
    provision and under the Constitution. See Giglio v. United States, 
    405 U.S. 150
    (1972); Brady
    v. Maryland, 
    373 U.S. 83
    (1963). We also note that we discovered no Giglio or Brady evidence
    4
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    No. 12-11166
    III.
    The second challenge raised by Appellant addresses the validity of the
    jury instruction regarding the crime of attempt.                  A district court’s jury
    instructions are reviewed for abuse of discretion, considering “whether the
    instruction, taken as a whole, ‘is a correct statement of the law and whether it
    clearly instructs jurors as to the principles of law applicable to the factual
    issues confronting them.’” 8 Any error is subject to harmless error review. 9
    Appellant’s argument focuses on a single sentence in the jury
    instruction, which stated that “some preparations, when taken together with
    intent, may amount to an attempt.”                  According to Appellant, this jury
    instruction allowed Appellant to be convicted even though he had only
    performed “mere preparations,” and had never completed a substantial step
    toward committing the offense of using a weapon of mass destruction under 18
    U.S.C. § 2332a(a)(2).
    When “taken as a whole,” 10 however, the district court’s jury instruction
    correctly described the “preparation-attempt continuum” that we have
    recognized in previous cases. 11          The district court’s instruction properly
    emphasized that a conviction for attempt requires proof beyond a reasonable
    doubt that “the Defendant both intended to commit the act and did an act
    constituting a substantial step towards the commission of that crime which
    strongly corroborates the Defendant’s criminal intent and amounts to more
    during our in camera review of the classified material in this case, nor any other evidence
    that would bear on Appellant’s right to due process.
    8 United States v. Richardson, 
    676 F.3d 491
    , 506 (5th Cir. 2012) (quoting United States
    v. Freeman, 
    434 F.3d 369
    , 377 (5th Cir. 2005)).
    9 United States v. Demmitt, 
    706 F.3d 665
    , 674-75 (5th Cir. 2013).
    10 See 
    Richardson, 676 F.3d at 506
    .
    11 See United States v. Ellis, 
    564 F.3d 370
    , 374-75 (5th Cir. 2009); see also United
    States v. Mandujano, 
    499 F.2d 370
    , 375 (5th Cir. 1974) (“[S]ome preparations may amount
    to an attempt. It is a question of degree.”) (internal quotation marks and citations omitted).
    5
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    than mere preparation.” 12           When read in context, the district court’s
    instruction adequately distinguished between “mere preparation,” which “is
    not an attempt,” and “some preparations,” which “may amount to an attempt”
    so long as such “acts . . . clearly indicate a willful intent to commit a crime.” 13
    In particular, this instruction was faithful to our analysis in United States v.
    Mandujano, 
    499 F.2d 370
    (5th Cir. 1974), where we concluded that “some
    preparations may amount to an attempt” so long as this conduct is “more than
    remote preparation” and is “strongly corroborative of the firmness of the
    defendant’s criminal intent.” 14
    Accordingly, although the single sentence on which Appellant has
    focused might seem misleading when considered by itself and stripped of
    context, the jury instruction as a whole constituted a correct statement of the
    law. Under an abuse-of-discretion standard, therefore, the district court’s jury
    instruction provides no basis for reversal of Appellant’s conviction.
    IV.
    Finally, Appellant argues that the district court erred procedurally and
    substantively in imposing a sentence of life imprisonment. In reviewing the
    reasonableness of a defendant’s sentence, this court “must first ensure that the
    district court committed no significant procedural error, such as failing to
    calculate (or improperly calculating) the Guidelines range.” 15 The district
    12 See Tr. of Reading of Jury Charge, Rec. Doc. 206-1, at 61; see also United States v.
    Hernandez-Galvan, 
    632 F.3d 192
    , 198 (5th Cir. 2011).
    13 Tr. of Reading of Jury Charge, Rec. Doc. 206-1, at 61.
    14 See 
    Mandujano, 499 F.2d at 375-77
    (internal quotation marks and citations
    omitted); see also United States v. Sanchez, 
    667 F.3d 555
    , 563 (5th Cir. 2012) (holding that a
    substantial step must “both (1) be an act strongly corroborative of the actor’s criminal intent
    and (2) amount to more than mere preparation”); United States v. Oviedo, 
    525 F.2d 881
    , 885
    (5th Cir. 1976) (concluding that “the objective acts performed” must “mark the defendant’s
    conduct as criminal in nature”).
    15 
    Hernandez-Galvan, 632 F.3d at 196
    (quoting United States v. Cisneros-Gutierrez,
    
    517 F.3d 751
    , 764 (5th Cir. 2008)).
    6
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    No. 12-11166
    court’s “interpretation or application of the Sentencing Guidelines” is reviewed
    de novo, while its factual findings are reviewed for clear error. 16 Where the
    district court’s sentencing decision is procedurally sound, the appellate court
    should then consider “the substantive reasonableness of the sentence imposed
    under an abuse-of-discretion standard.” 17 Where a sentence falls “within the
    Guidelines range, the appellate court may, but is not required to, apply a
    presumption of reasonableness.” 18
    Initially, Appellant argues that the district court erred as a procedural
    matter when it applied the Section 2K1.4 cross-reference to the guideline for
    “attempted murder” because it is unclear whether Appellant ever identified a
    final bombing target. The Section 2K1.4(c)(1) cross-reference applies only if
    “the offense was intended to cause death or serious bodily injury.” Appellant
    argues that this cross-reference “clearly envisions a targeted victim, location,
    or some other facility—an element that is missing from this case.”                       But
    Appellant identifies no authority for this proposition. Indeed, we rejected a
    similar argument in United States v. Polk, 
    118 F.3d 286
    , 297-98 (5th Cir. 1997).
    Moreover, even if targets were necessary under the Section 2K1.4 cross-
    reference, the statements found in Appellant’s journals and e-mails during the
    FISA searches revealed that Appellant had considered many targets, which
    defense counsel conceded before the jury during Appellant’s trial. 19                    The
    district court therefore did not make a clear error in its factual finding that
    Appellant’s attempted bombing “was intended to cause death or serious bodily
    injury.” 20
    16  
    Id. 17 Gall
    v. United States, 
    552 U.S. 38
    , 51 (2007).
    18 Id.; United States v. Kippers, 
    685 F.3d 491
    , 500 (5th Cir. 2012).
    19 Trial Tr., Volume 2, Rec. Doc. 245, at 24 (“It was George W. Bush, it was the Saudi
    king, it was the people of New York, it was the Hoover Dam.”).
    20 See 
    Hernandez-Galvan, 632 F.3d at 196
    .
    7
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    Additionally, Appellant argues that the district court erred when it
    applied the Section 3C1.1 adjustment for obstruction of justice based on its
    finding that Appellant feigned mental illness. In United States v. Greer, 
    158 F.3d 228
    , 235, 240-41 (5th Cir. 1998), however, we held that circumstantial
    evidence of a defendant’s specific intent to malinger is sufficient to support
    such an adjustment. Although Appellant’s defense expert offered testimony
    that contradicted the district court’s finding as to Appellant’s malingering, the
    district court also reviewed a physician’s report concluding that “[b]ased on the
    available evidence, it appears likely that Mr. Aldawsari is trying to exaggerate
    his difficulties so he can appear mentally ill.” 21           Because the credibility
    determination of witnesses, including experts, is peculiarly within the province
    of the district court, 22 we have no basis to find that the district court’s
    conclusion as to Appellant’s feigned incompetence was clear error. 23
    Last of all, Appellant argues that the district court abused its discretion
    by imposing a substantively unreasonable term of imprisonment.                         In
    Appellant’s view, the district court imposed a sentence that resulted in
    unwarranted disparity with other similar cases and incorrectly balanced
    several factors under 18 U.S.C. § 3553(a), including Appellant’s feelings of
    isolation and depression upon coming to the United States, his youth, his need
    for appropriate psychological treatment, and the courts’ interest in promoting
    respect for law by refraining from excessive punishment.                In this circuit,
    however, “avoiding unwarranted general sentencing disparities is not a factor
    that we grant significant weight where the sentence is within the Guidelines
    21   See Appellee’s Br. 72; Appellant’s Reply Br. 18.
    22   LULAC # 4552 v. Roscoe I.S.D., 
    123 F.3d 843
    , 846 (5th Cir. 1997) (citing Orduna
    S.A. v. Zen-Noh Grain Corp., 
    913 F.2d 1149
    , 1154 (5th Cir. 1990)).
    23 See 
    Hernandez-Galvan, 632 F.3d at 196
    .
    8
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    range.” 24 Moreover, as we held in United States v. Heard, 
    709 F.3d 413
    , 435
    (5th Cir. 2013), appellate review of a district court’s application of the 18 U.S.C.
    § 3553(a) factors “is highly deferential as the sentencing judge is in a superior
    position to find facts and judge their import under section 3553(a) with respect
    to a particular defendant.” Appellant cites no cases that would require this
    court “to reweigh the section 3553(a) sentencing factors” in Appellant’s favor. 25
    Accordingly, even though the district court imposed the maximum sentence
    permitted within Appellant’s guideline range, we do not find that the district
    court abused its discretion.
    V.
    For the reasons stated above, Appellant’s arguments in this appeal are
    each rejected. We hereby AFFIRM Appellant’s conviction and sentence.
    AFFIRMED.
    24 United States v. Diaz, 
    637 F.3d 592
    , 604 (5th Cir. 2011) (citing United States v.
    Willingham, 
    497 F.3d 541
    , 544-45 (5th Cir. 2007)).
    25 See 
    Heard, 709 F.3d at 435
    ; 
    Kippers, 685 F.3d at 499-501
    .
    9
    

Document Info

Docket Number: 12-11166

Citation Numbers: 740 F.3d 1015

Judges: Davis, Higginson, Reavley

Filed Date: 1/23/2014

Precedential Status: Precedential

Modified Date: 8/31/2023

Authorities (20)

United States v. Abu-Jihaad , 630 F.3d 102 ( 2010 )

United States v. Duka , 671 F.3d 329 ( 2011 )

United States v. Ellis , 564 F.3d 370 ( 2009 )

United States v. Richardson , 676 F.3d 491 ( 2012 )

United States v. Cisneros-Gutierrez , 517 F.3d 751 ( 2008 )

United States v. Diaz , 637 F.3d 592 ( 2011 )

United States v. Charles Randell Greer , 158 F.3d 228 ( 1998 )

United States v. Hernandez-Galvan , 632 F.3d 192 ( 2011 )

United States v. Martin Molina Oviedo, Jr. , 525 F.2d 881 ( 1976 )

United States v. Freeman , 434 F.3d 369 ( 2005 )

United States v. Roy Mandujano , 499 F.2d 370 ( 1974 )

United States v. Sanchez , 667 F.3d 555 ( 2012 )

United States v. Willingham , 497 F.3d 541 ( 2007 )

United States v. Charles Ray Polk , 118 F.3d 286 ( 1997 )

United States v. Fawaz Mohammed Damrah, A/K/A Fawaz Damra , 124 F. App'x 976 ( 2005 )

In Re: Sealed Case , 310 F.3d 717 ( 2002 )

United States v. Ning Wen , 477 F.3d 896 ( 2007 )

Brady v. Maryland , 83 S. Ct. 1194 ( 1963 )

Giglio v. United States , 92 S. Ct. 763 ( 1972 )

Gall v. United States , 128 S. Ct. 586 ( 2007 )

View All Authorities »