United States v. Amina Ali , 799 F.3d 1008 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2208
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Amina Farah Ali
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 13-2209
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Hawo Mohamed Hassan, also known as Halimo Hassan, also known as Halima Hassan
lllllllllllllllllllll Defendant - Appellant
____________
Appeals from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: April 16, 2015
Filed: August 25, 2015
____________
Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
____________
GRUENDER, Circuit Judge.
In this consolidated appeal, we consider the criminal prosecutions that were
brought against two women living in Minnesota in connection with funds sent to al
Shabaab, an organization in Somalia that the United States Secretary of State had
designated a foreign terrorist organization. After a jury trial, Amina Farah Ali and
Hawo Mohamed Hassan were convicted on all counts. The district court1 sentenced
Ali to 240 months in prison and Hassan to 120 months in prison. We affirm.
I. Background
Amina Farah Ali and Hawo Mohamed Hassan are naturalized citizens of the
United States who live in Minnesota. Both are from Somalia. In the summer of 2008,
the FBI learned that Ali had contacted members of al Shabaab, a foreign terrorist
organization in Somalia. Al Shabaab had been so designated by the Secretary of State
in February 2008. After a lengthy investigation, a federal grand jury returned an
indictment charging (1) Ali and Hassan with one count of conspiring to provide
material support to al Shabaab, see 18 U.S.C. § 2339B(a)(1); (2) Ali with twelve
counts of providing material support to al Shabaab, see id.; and (3) Hassan with two
counts of making a false statement, see 18 U.S.C. § 1001(a)(2).
1
The Honorable Michael J. Davis, then Chief Judge, United States District
Court for the District of Minnesota.
-2-
Before trial, the Government informed Ali and Hassan that it intended to offer
evidence obtained under the authority of the Foreign Intelligence Surveillance Act
(“FISA”), 50 U.S.C. § 1801 et seq. Ali and Hassan requested disclosure of the FISA
materials and suppression of all FISA-obtained evidence. In turn, the Government
filed a declaration by the Attorney General of the United States averring that
disclosure of the FISA materials or an adversary proceeding would harm the national
security of the United States. Under FISA, this declaration prompted an in camera,
ex parte review of the FISA materials by the district court. Id. §§ 1806(f), 1825(g).
After conducting this review, the court denied Ali’s and Hassan’s motions for
disclosure and suppression.
At the final status conference before trial, Ali remained seated when court was
convened. After learning of Ali’s failure to stand, the court issued an order requiring
all parties to stand when court is called to order. Yet when court convened for the first
day of trial, Ali remained seated. The court confirmed that Ali was aware of its order
and revoked her pretrial release status. On the second day of trial, Ali again refused
to stand.
While Ali was incarcerated, the court allowed “three learned clerics” to visit
her. They informed Ali that she could stand for the court if she was “in a difficult
situation, if [she was] fearful of [her] own life.” When Ali returned to court, the court
gave her a chance to speak, telling her that “your elders are even telling you that your
interpretation [of the Hadith] is wrong.” In response, Ali stated that “my
understanding is that I have to follow what I think is the right way and that’s what I’ve
been doing.” The court ultimately cited Ali for twenty instances of contempt. After
two nights of incarceration, Ali informed the court that she would comply with its
order. The court released Ali from custody, and Ali stood when court convened and
recessed for the rest of the trial. Ali appealed the contempt citations, and we affirmed
in part and vacated and remanded in part. United States v. Ali, 682 F.3d 705, 711 (8th
Cir. 2012).
-3-
During the ten-day trial in October 2011, the jury learned about the history of
Somalia as well as al Shabaab’s role in the country. The Government’s expert
witness, Matthew Bryden, explained that Somalia had not had an effective central
government since 1991 but that the Transitional Federal Government (“TFG”) had
been in place since 2004. With respect to al Shabaab, which is known as “the youth,”
Bryden explained that its goal is “to impose [its] version of Islamic law on Somalia.”
Bryden continued, explaining that al Shabaab seeks to “expel” and “dismantle” the
TFG and “to replace it with [al Shabaab’s] own rule by force.” Al Shabaab, Bryden
explained, has used suicide bombs, roadside bombs, and assassinations.
The Government presented evidence that Ali and Hassan planned and
participated in fundraising teleconferences in which a speaker, oftentimes a member
of al Shabaab, would give a lecture. After the lectures, listeners would pledge money.
One of these teleconferences, the jury learned, had over one thousand listeners. In
another teleconference, listeners pledged $2,150, and Hassan kept track of the donors’
phone numbers. The FBI later found a ledger from this task in Hassan’s home. The
jury listened to some of these teleconferences. For example, in one teleconference,
Ali asked an al Shabaab leader “[w]hy wage jihad against [the TFG]? The goal was
to adopt Islamic law and they adopted Islamic law.” The al Shabaab leader responded
in part:
The reason is: Ugandan troops and Burundian troops are still in the
country. They are Christians. They are carrying the cross. They
invaded our country. They did not come here through our consent. That
means[] they are to be considered infidels, who are aggressors, and the
action to be taken against infidel aggressors is war.
Ali frequently spoke with members of al Shabaab. The jury listened to
numerous recorded telephone calls between Ali and Hassan Afgoye, who at one time
was responsible for al Shabaab’s finances. The Government’s expert witness
explained that Afgoye later became the senior al Shabaab figure for an area of
-4-
Somalia. In fact, the jury learned that Ali and Afgoye actually discussed his new
position. In many of their conversations, Ali and Afgoye discussed money that she
had arranged to be sent to him or his associates. Through the testimony of an FBI
agent, the Government meticulously connected Ali to each transfer of money charged
in the indictment—for example, through documentation for the money transfers,
telephone conversations in which Ali spoke with the sender of the money about where
to send it, and telephone conversations in which Afgoye or his associates discussed
with Ali whether they had received the money. In one telephone call, Ali discussed
with Afgoye how she sent money to al Shabaab as early as 2007, before it was
designated a foreign terrorist organization. Ali stated that she later learned that the
“young men”—a reference to al Shabaab—“should be isolated” and that her family
members had warned her about being arrested.
Ali and Afgoye also talked about al Shabaab’s activities in Somalia. For
example, Afgoye told Ali about a recent battle, recounting that the enemy’s leaders
had been “captured alive and then slaughtered.” Ali responded: “Were they killed?
Thanks God. Yes.” The Government’s expert provided context for this conversation,
explaining that Afgoye was referring to a battle between al Shabaab and forces aligned
with the TFG. In another telephone call, Afgoye informed Ali about a recent al
Shabaab suicide bombing. The Government’s expert witness explained that dozens
of people died in this particular attack. In yet another telephone call, Afgoye implored
Ali to “send whatever you currently have in hand . . . [a]nd after that we will race to
confront the enemy, God willing.” Ali responded, “By the grace of God, [m]ay God
defeat[] them. Around here, no one talks about the enemy; these people live in a
different reality. May God show these people the truth.”
The Government also presented evidence that Hassan spoke with members of
al Shabaab. In a telephone conversation with Ali, Hassan stated that the al Shabaab
“guys” had told her about their battle strategy. Hassan stated that “[t]hey said [it] was
[a] good idea. And they are right if you really look at it.” In another telephone
-5-
conversation with Ali, Hassan described an al Shabaab suicide bombing where “they
are still counting the dead,” which she described as “[t]he best joy ever” and a
“delightful event.” Ali twice chimed in that this news was “[w]onderful.” The
Government’s expert witness stated that this particular attack targeted a TFG minister
at a hotel and that al Shabaab claimed credit for the attack.
The jury also heard about al Shabaab’s connections to groups both inside and
outside of Somalia. For example, Ali and Hassan once discussed having Hassan Dahir
Aweys speak during a fundraising teleconference. Aweys, the jury learned, was a
specially designated global terrorist, see generally 31 C.F.R. § 594.310, and was in
charge of another militia in Somalia. Aweys eventually spoke during a
teleconference, and Ali told Afgoye that she sent him the money that was donated.
The jury also heard about Ali’s contact with Isse Kamboni, who was associated with
another militia in Somalia that was led by another specially designated global terrorist.
The Government also demonstrated that al Shabaab had connections to al Qaeda. For
the most part, this evidence helped to explain the context of a telephone call between
Ali and Afgoye, in which they discussed al Shabaab’s response to a message from
Osama bin Laden entitled “Fight on Lions of Somalia.”
In connection with the two false-statement counts against Hassan, the
Government presented evidence that Hassan met with FBI agents in late 2009. On
September 2, 2009, Hassan told an FBI agent that she did not know anyone who sent
money to al Shabaab, the mujahidin, the young men, or the fighters. Hassan also told
an FBI agent that Ali had never asked her to send money to Somalia or elsewhere
through a “hawala,” which is a service for sending money overseas. Hassan made
three further statements about Ali to an FBI agent—specifically that “Ali provides
[Hassan] a list and [she] collects the money and gives it to Amina Ali,” that certain
money was “provided to Ms. Ali,” and that “Amina Ali spoke about jihad.”
-6-
In their closing arguments, Ali and Hassan defended their actions primarily on
the basis that they intended to provide humanitarian relief in Somalia. However, the
jury returned a guilty verdict on all counts. For Ali, the district court calculated an
advisory sentencing guidelines range of 360 months to life in prison. The court
decided to vary downward to a sentence of 240 months’ imprisonment. For Hassan,
the court calculated an advisory sentencing guidelines range of 360 to 372 months in
prison. The district court opted to vary downward from Hassan’s advisory guidelines
range, imposing a sentence of 120 months’ imprisonment. Ali and Hassan appeal.
II. Discussion
A. Recusal
Ali and Hassan contend that the trial judge should have recused himself from
this case. This contention is being raised for the first time on appeal, meaning that our
review is for plain error. See United States v. Burnette, 518 F.3d 942, 945 (8th Cir.
2008).
A judge shall recuse from a case if “his impartiality might reasonably be
questioned” or “[w]here he has a personal bias or prejudice concerning a party.”
28 U.S.C. § 455(a), (b)(1). “A party introducing a motion to recuse carries a heavy
burden of proof; a judge is presumed to be impartial and the party seeking
disqualification bears the substantial burden of proving otherwise.” Fletcher v.
Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003) (quoting Pope v. Fed.
Express Corp., 974 F.2d 982, 985 (8th Cir. 1992)). The Supreme Court has explained
that:
[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
-7-
make fair judgment impossible. Thus, judicial remarks during the course
of a trial that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or partiality
challenge. They may do so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they reveal such a high degree
of favoritism or antagonism as to make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994). We have emphasized that “[r]ules
against ‘bias’ and ‘partiality’ can never mean to require the total absence of
preconception, predispositions and other mental habits.” Burnette, 518 F.3d at 945
(quoting United States v. Bernstein, 533 F.2d 775, 785 (2d Cir. 1976)).
Ali and Hassan assert that, taken together, the court’s statements “suggest a
world view equating fundamentalist Islam with terrorism, therefore deserving of
punitive measures in order to preserve the illusory concept of ‘national security.’” As
evidence, Ali and Hassan direct us to the court’s statements during jury selection,
which they believe show the court prejudicially “group[ing] together” all persons of
Muslim faith. This assertion is baseless. Ali and Hassan rely on various questions
that the court asked potential jurors, such as whether “you or anyone that is close
friends or relatives ever had any kind of experience with people from Somalia, the
Horn of Africa, the Middle East, with Muslims, Persians, Iraqis, or Afghanistans” as
well as whether anyone had “specialized knowledge or expertise in the issue[] of
terrorism” or familiarity with “[t]he Middle East, Iraq, Iran, Afghanistan, Egypt,
Somalia, Kenya, Tunisia, Morocco, and Egypt.” As the Government points out, these
questions are functionally identical to questions that Ali’s counsel requested that the
trial judge ask on Ali’s behalf. Consequently, the court’s questions evince a
willingness to work with Ali’s counsel to secure an impartial jury and thus the absence
of bias and partiality.
As further support for the need for sua sponte recusal, Ali and Hassan direct us
to a discussion between Ali and the court about Ali’s refusal to stand. In this
-8-
exchange, the court provided Ali with an opportunity to share her reasons for
disobeying the court’s order. The court stated that, while Ali was incarcerated, three
clerics had spoken with her and that “your elders are even telling you that your
interpretation of [the Hadith] is wrong.” In response, Ali emphasized that her
religious beliefs compelled disobedience of the court’s order. The court then
reiterated its intent to hold Ali in contempt but emphasized that, while she was
incarcerated, the court would ensure that her “religious beliefs will be honored” and
that her “modesty will be protected.” Viewed in context, this exchange does not
portray “deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky, 510 U.S. at 555. Rather, this discussion merely shows the nature
of the disagreement between the court and Ali. The proper recourse in this situation
is an appeal, which Ali took to this court, not a bias or partiality motion to the district
court that, as it turns out, was never made. See id.
Ali and Hassan next claim that the court’s statements during sentencing were
sufficient to necessitate sua sponte recusal. They specifically direct us to the
following questions posed by the court during Ali’s sentencing hearing: (1) “What
does jihad mean to you?”; (2) “Did you know about al Shabaab describing itself as
waging jihad against enemies of Islam?”; (3) “Would you agree that al Shabaab is an
Islamist organization that follows a very conservative and strict interpretation of
Islam?”; and (4) “[A]re you telling me that you don’t want to talk to me about that or
you have no knowledge of [al Shabaab’s] strict beliefs?” Plucked from context, some
of these questions may appear unconventional. However, rather than showing bias or
partiality, when viewed in context, these questions demonstrate that the court sought
to comprehend Ali’s understanding of al Shabaab’s goals and actions, a legitimate
topic for a sentencing court to explore in a prosecution for conspiring to provide and
providing material support to al Shabaab. See 18 U.S.C. § 3553(a)(1)-(2).
Finally, Ali and Hassan argue that the court’s statements in similar cases show
that the court was predisposed to rule against them. They primarily rely on the court’s
-9-
statement in another matter that “[t]he community at large and the Somali community
should know that the United States . . . has done an admirable job at investigating and
prosecuting all the individuals that were involved in these terrorism activities.”
However, the Supreme Court has made clear that “opinions formed by the judge on
the basis of facts introduced or events occurring in the course . . . of prior
proceedings[] do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky, 510 U.S. at 555 (emphasis added). The court’s above-quoted
statement shows neither extreme favoritism nor antagonism. It merely reflects the
court’s view of cases over which it presided. See id. at 551 (“If the judge did not form
judgments of the actors in those court-house dramas called trials, he could never
render decisions.” (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir.
1943))). We thus discern no plain error.
B. Foreign Terrorist Organization Designation
Ali and Hassan raise two constitutional challenges to the procedure by which
al Shabaab was designated a foreign terrorist organization. We review these issues
de novo. McDermott v. Royal, 613 F.3d 1192, 1193 (8th Cir. 2010) (per curiam).
Ali and Hassan first claim that their material-support convictions violate the
Due Process Clause of the Fifth Amendment. As relevant here, the material-support
statute forbids “knowingly provid[ing] material support or resources to a foreign
terrorist organization, or attempt[ing] or conspir[ing] to do so.” 18 U.S.C.
§ 2339B(a)(1). The phrase “foreign terrorist organization” is a term of art that is
defined in 8 U.S.C. § 1189(a)(1). Under this provision, the Secretary of State may
designate an organization a foreign terrorist organization if the Secretary finds that (1)
the organization is a “foreign organization”; (2) the organization engages in “terrorist
activity” or “terrorism” or “retains the capability and intent to engage in terrorist
activity or terrorism”; and (3) “the terrorist activity or terrorism of the organization
-10-
threatens the security of United States nationals or the national security of the United
States.” Id. Section 1189 also provides a mechanism by which an organization can
seek judicial review of its designation as a foreign terrorist organization in the United
States Court of Appeals for the District of Columbia Circuit. Id. § 1189(c)(1).
However, this ability to challenge a designation belongs to the organization, not a
defendant in a criminal proceeding. Id. § 1189(a)(8).
Ali and Hassan argue that prohibiting them from challenging the Secretary of
State’s designation of al Shabaab as a foreign terrorist organization offends due
process. Our sister circuits have rejected this argument. United States v. Hammoud,
381 F.3d 316, 331 (4th Cir. 2004) (en banc), vacated on other grounds by 543 U.S.
1097 (2005), reinstated in all relevant parts, 405 F.3d 1034 (4th Cir. 2005) (order);
United States v. Afshari, 426 F.3d 1150, 1155-59 (9th Cir. 2005). For purposes of the
Due Process Clause, the Supreme Court has stated that “in determining what facts
must be proved beyond a reasonable doubt the . . . legislature’s definition of the
elements of the offense is usually dispositive.” McMillan v. Pennsylvania, 477 U.S.
79, 85 (1986). Under 18 U.S.C. § 2339B, “Congress has provided that the fact of an
organization’s designation as [a foreign terrorist organization] is an element of [the
crime], but the validity of the designation is not.” Hammoud, 381 F.3d at 331. Thus,
like our sister circuits, we hold that it comports with due process to prohibit a criminal
defendant from challenging the validity of the Secretary of State’s designation of a
foreign terrorist organization. See id.; Afshari, 426 F.3d at 1155-59. In reaching this
conclusion, we note that an organization’s designation as a foreign terrorist
organization is not wholly immune from challenge. The statute provides a method by
which an organization, rather than a criminal defendant, can contest the Secretary of
State’s designation. 8 U.S.C. § 1189(c); see Lewis v. United States, 445 U.S. 55, 65-
67 (1980).
Ali and Hassan next contend that allowing the Secretary of State to designate
foreign terrorist organizations amounts to an unconstitutional delegation of legislative
-11-
power. The longstanding rule is that “Congress may delegate its legislative power if
it ‘lay[s] down by legislative act an intelligible principle to which the person or body
authorized to [act] is directed to conform.’” South Dakota v. U.S. Dep’t of Interior,
423 F.3d 790, 795 (8th Cir. 2005) (alterations in original) (quoting J.W. Hampton, Jr.,
& Co. v. United States, 276 U.S. 394, 409 (1928)). Congress has “wide latitude in
meeting the intelligible principle requirement . . . [because] ‘Congress simply cannot
do its job absent an ability to delegate power under broad general directives.’” Id.
(quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). “Congress fails to
give sufficient guidance in its delegations only if it ‘would be impossible in a proper
proceeding to ascertain whether the will of Congress has been obeyed.’” Id. at 796
(quoting Yakus v. United States, 321 U.S. 414, 426 (1944)).
The statutory scheme governing the designation of foreign terrorist
organizations provides an intelligible principle. See Humanitarian Law Project v.
Reno, 205 F.3d 1130, 1137 (9th Cir. 2000) (explaining that § 1189(a) “does not grant
the Secretary unfettered discretion in designating the groups to which giving material
support is prohibited”). As outlined above, the statute permits the Secretary to make
a designation only after making three discrete findings. See 8 U.S.C. § 1189(a)(1)(A)-
(C). As the Ninth Circuit has observed, “[t]he Secretary could not, under this
standard, designate the International Red Cross or the International Olympic
Committee as [foreign] terrorist organizations. Rather, the Secretary must have
reasonable grounds to believe that an organization has engaged in terrorist
acts—assassinations, bombings, hostage-taking and the like—before she can place it
on the list.” Humanitarian Law Project, 205 F.3d at 1137. As such, two courts have
upheld § 1189(a) against a non-delegation challenge. Hammoud, 381 F.3d at 331;
United States v. Taleb-Jedi, 566 F. Supp. 2d 157, 172-73 (E.D.N.Y. 2008) (“Congress
has established detailed procedures to designate organizations as [foreign terrorist
organizations] and it retains the power to revoke such a designation when made.”).
-12-
Ali and Hassan ask us to chart a different course primarily due to the
requirement that the Secretary of State determine that an organization “threatens the
security of United States nationals or the national security of the United States.”
8 U.S.C. § 1189(a)(1)(C). The term “national security,” Ali and Hassan argue, is
“defined without meaning.” But the statute defines “national security” to mean “the
national defense, foreign relations, or economic interests of the United States.” Id.
§ 1189(d)(2). That this definition is general and broad does not an unintelligible
principle make. See South Dakota, 423 F.3d at 795. Moreover, “[t]he Supreme Court
has repeatedly underscored that the intelligible principle standard is relaxed for
delegations in fields in which the Executive traditionally has wielded its own power.”
Hepting v. AT&T Corp. (In re Nat’l Sec. Agency Telecomms. Records Litig.), 671 F.3d
881, 897-98 (9th Cir. 2011) (collecting cases); see Zemel v. Rusk, 381 U.S. 1, 17
(1965) (“Congress—in giving the Executive authority over matters of foreign
affairs—must of necessity paint with a brush broader than it customarily wields in
domestic areas.”). For these reasons, we hold that granting the Secretary of State the
ability to designate an organization a foreign terrorist organization does not constitute
an unconstitutional delegation of legislative authority.
C. FISA
Ali and Hassan argue that FISA violates the Constitution. They alternatively
urge that the FISA materials should have been disclosed to them and that the FISA-
obtained evidence should have been suppressed.
To obtain approval for surveillance under FISA, there must be, among other
things, probable cause to believe that “the target of the electronic surveillance is a
foreign power or an agent of a foreign power” and that “each of the facilities or places
at which the electronic surveillance is directed is being used, or is about to be used,
by a foreign power or an agent of a foreign power.” 50 U.S.C. § 1805(a)(2)(A)-(B).
An essentially identical probable-cause standard must be met in order to conduct a
-13-
physical search under FISA. Id. § 1824(a)(2)(A)-(B). “This probable-cause showing
differs in focus from the standard in a typical criminal case. ‘Rather than focusing on
probable cause to believe that a person has committed a crime, the FISA standard
focuses on the status of the target as a foreign power or an agent of a foreign power.’”
United States v. Omar, 786 F.3d 1104, 1111 (8th Cir. 2015) (alteration omitted)
(quoting United States v. El-Mezain, 664 F.3d 467, 564 (5th Cir. 2011) (as revised)).
A “foreign power” includes “a group engaged in international terrorism or activities
in preparation therefor.” 50 U.S.C. §§ 1801(a)(4), 1821(1). And an “agent of a
foreign power” includes any person who “knowingly engages in sabotage or
international terrorism, or activities that are in preparation therefor, for or on behalf
of a foreign power.” Id. §§ 1801(b)(2)(C), 1821(1). Moreover, “anyone who
knowingly aids, abets, or conspires with an agent in furtherance of such activities is
also deemed an agent of a foreign power.” Omar, 786 F.3d at 1111 (quoting United
States v. Daoud, 761 F.3d 678, 681 (7th Cir. 2014)); see 50 U.S.C. §§ 1801(b)(2)(E),
1821(1).
If the Government intends to offer FISA-obtained evidence in a criminal trial,
FISA provides a procedure by which a district court can review a probable-cause
determination without allowing the defendant to review the FISA materials. When
the Attorney General certifies under oath that “disclosure [of the FISA materials] or
an adversary hearing would harm the national security of the United States,” a district
court should “review in camera and ex parte the [FISA] application, order, and such
other materials” as may be necessary to determine whether the surveillance or physical
search was “lawfully authorized and conducted.” Id. §§ 1806(f), 1825(g). The district
court may order the Government to disclose the FISA materials to an aggrieved person
“under appropriate security procedures and protective orders” but may do so “only
where such disclosure is necessary to make an accurate determination of the legality”
of the surveillance or physical search. Id. §§ 1806(f), 1825(g); see also id.
§§ 1806(g), 1825(h). Under FISA, “disclosure and an adversary hearing are the
-14-
exception occurring only when necessary.” Omar, 786 F.3d at 1110 (alteration
omitted) (quoting United States v. Isa, 923 F.2d 1300, 1306 (8th Cir. 1991)).
Ali and Hassan assert that FISA violates the Constitution in two ways.2 We
review these arguments de novo. See McDermott, 613 F.3d at 1193. Ali and Hassan’s
primary argument is that FISA violates the Fourth Amendment by permitting a search
without probable cause to believe that a crime has been committed. This argument
runs headlong into our precedent. In Isa, we concluded that a defendant’s Fourth
Amendment rights are not violated by FISA surveillance so long as the probable-cause
standard of FISA is met. 923 F.2d at 1304. The Supreme Court has recognized that
“[d]ifferent standards may be compatible with the Fourth Amendment if they are
reasonable both in relation to the legitimate need of Government for intelligence
information and the protected rights of our citizens.” United States v. U.S. Dist.
Court, 407 U.S. 297, 322-23 (1972). Consistent with our conclusion in Isa, we find
that the probable-cause showing required by FISA is reasonable under the
circumstances. 923 F.2d at 1304; see United States v. Abu-Jihaad, 630 F.3d 102, 121-
23 (2d Cir. 2010); United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987);
United States v. Cavanagh, 807 F.2d 787, 789-91 (9th Cir. 1987).
Ali and Hassan next assert that FISA’s in camera, ex parte procedure violates
their right to due process. However, other courts uniformly have rejected this
proposition. See El-Mezain, 664 F.3d at 567-68; Abu-Jihaad, 630 F.3d at 129; United
States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005); United States v. Ott, 827 F.2d
473, 476-77 (9th Cir. 1987); United States v. Belfield, 692 F.2d 141, 148-49 (D.C. Cir.
1982). Ali and Hassan provide no persuasive reason for us to reject this wealth of
2
Ali and Hassan also assert without elaboration that FISA’s in camera, ex parte
procedure “denies the right to the effective assistance of counsel” in violation of the
Sixth Amendment. We decline to consider this undeveloped claim. See United States
v. Stanko, 491 F.3d 408, 415 (8th Cir. 2007).
-15-
well-reasoned authority, and seeing no reason to do so, we likewise hold that FISA’s
in camera, ex parte procedure is consistent with due process.
Ali and Hassan also contest the district court’s decision not to disclose the FISA
materials to them under 50 U.S.C. § 1806(f). We review the district court’s disclosure
decision for abuse of discretion. See Omar, 786 F.3d at 1111. The FISA materials
have been submitted to this panel, and we have undertaken a careful and
comprehensive review of them to determine whether the district court acted within its
discretion by concluding that disclosure was not “necessary to make an accurate
determination of the legality of the surveillance.” 50 U.S.C. § 1806(f). Based upon
this review, we conclude that the district court did not abuse its discretion by refusing
to disclose the FISA materials to Ali and Hassan.
Ali and Hassan next assert that the district court should have suppressed any
FISA-obtained evidence because FISA’s probable-cause standard has not been met.
In particular, Ali and Hassan direct us to FISA’s requirement that “no United States
person may be considered a foreign power or an agent of a foreign power solely upon
the basis of activities protected by the first amendment to the Constitution of the
United States.” 50 U.S.C. § 1805(a)(2)(A). As we observed in our recent Omar
decision, courts have reached different conclusions about the standard of review
applicable to probable-cause determinations under FISA, with some courts
undertaking a de novo review of the issue and others applying more deferential
review. 786 F.3d at 1112. We think it best to leave the resolution of this issue for a
case in which deciding it matters. It does not here. The probable-cause determination
in this case is straightforward. After thoroughly reviewing the FISA materials, we
have no problem concluding that probable cause under FISA existed under any
standard of review.
-16-
D. Severance
Ali and Hassan offer four reasons why the district court should have severed
their trials. We will not reverse the denial of a motion to sever unless the movant
demonstrates an abuse of discretion resulting in clear prejudice. United States v.
Anderson, 783 F.3d 727, 743 (8th Cir. 2015), petitions for cert. filed, --- U.S.L.W. ---
(U.S. July 15, 2015) (Nos. 15-77, 15-81).
First, Hassan argues that severance was required so that Ali could testify on
Hassan’s behalf in a separate trial. “The district court does not abuse its discretion in
denying a motion to sever absent a ‘firm representation’ that a co-defendant would be
willing to testify on the defendant’s behalf.” United States v. Crumley, 528 F.3d
1053, 1063 (8th Cir. 2008) (quoting United States v. Blaylock, 421 F.3d 758, 767 (8th
Cir. 2005)). The defendant also must show that her co-defendant’s testimony would
be exculpatory. Id. at 1064. In Hassan’s motion to sever, her counsel stated that it is
“substantially likely” that Ali would be willing to testify on Hassan’s behalf because
the two were close friends. Hassan’s counsel did not further support this assertion.
Compare id. at 1063 (explaining that defendant’s pre-trial motion to sever “simply
stated that he would call [the co-defendant] to testify” and offered “no proof to the
district court that [the codefendant] agreed to testify on [the defendant’s] behalf”),
with United States v. DeLuna, 763 F.2d 897, 920 (8th Cir. 1985) (noting that co-
defendant’s counsel had stated that his client “had affirmatively represented that he
would testify on behalf of [the defendant] if the trials were severed”), overruled on
other grounds by United States v. Inadi, 475 U.S. 387 (1986). Without more, the
district court did not abuse its discretion by denying Hassan’s motion to sever due to
the lack of a firm representation that Ali would testify in a separate trial. See Crumley,
528 F.3d at 1063-64. Therefore, we need not reach the separate question of whether
Hassan showed that Ali’s testimony in a separate trial would be exculpatory.
-17-
Second, Hassan argues for severance based on Ali’s refusal to stand at the
beginning of the trial. It has long been the rule that severance is warranted “only if
there is a serious risk that a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993). According to Hassan,
this rule has been transgressed because Ali “acted in defiance of the law by refusing
to stand for the judge, in plain view of the jurors.” However, “[s]everance is not
required merely . . . because [a] co-defendant[] engage[s] in disrespectful behavior in
court.” United States v. Delpit, 94 F.3d 1134, 1143-44 (8th Cir. 1996). The district
court was in the best position to observe what effect, if any, Ali’s initial failure to
stand had on the jury. In light of its superior vantage point, we cannot say that the
court abused its discretion in allowing the joint trial to go forward after Ali
temporarily refused to stand.
Third, Hassan argues that severance was necessary because the jury could not
compartmentalize the separate evidence against her and Ali. This argument faces an
uphill battle, for “[r]arely, if ever, will it be improper for co-conspirators to be tried
together.” United States v. Kime, 99 F.3d 870, 880 (8th Cir. 1996) (quoting United
States v. Drew, 894 F.2d 965, 968 (8th Cir. 1990)). When assessing the jury’s ability
to compartmentalize evidence, “we consider the complexity of the case, whether any
of the defendants were acquitted, and the adequacy of the jury instructions and
admonitions to the jury.” United States v. Ghant, 339 F.3d 660, 666 (8th Cir. 2003).
Hassan’s compartmentalization argument centers on her contention that the
Government’s case against her was weaker than its case against Ali. That may be, but
a mere disparity in the weight of the evidence is not a valid basis for severance. See
United States v. Dierling, 131 F.3d 722, 734 (8th Cir. 1997). Hassan also identifies
allegedly prejudicial evidence that she believes would not have been admissible
against her in a separate trial. In particular, Hassan points to a telephone conversation
between Ali and Afogye in which they discussed a recent suicide bombing and money
-18-
that Ali had sent to Afgoye. But “[a]cts committed in furtherance of a conspiracy are
admissible as circumstantial evidence that the agreement existed, unless the evidence
[is inadmissible] under Fed. R. Evid. 403.” Id. at 730 (internal citation omitted); see
United States v. Davis, 154 F.3d 772, 781 (8th Cir. 1998). Hassan does not dispute
this rule but argues that this telephone call would not have been admissible in a
separate trial against her under Rule 403. This argument lacks merit. By
demonstrating that Hassan’s co-conspirator spoke with an al Shabaab leader about
sending him money during the charged conspiracy, this telephone conversation had
substantial probative value. The fact that Ali and Afgoye discussed a recent suicide
bombing does not inject unfair prejudice, especially because Hassan once called Ali
to discuss a suicide bombing, describing it as “[t]he best joy ever.”
It is true that some evidence was admissible only against Ali. For example, as
discussed in detail below in Part II.E, there was evidence admitted against Ali but not
Hassan under Federal Rule of Evidence 404(b). But the district court instructed the
jury about the limited use of this evidence. For example, the court instructed the jury
that “you may consider [this evidence] to help you to decide Defendant Ali’s intent”
and “you may consider the evidence of prior acts only on the issue of intent of
Defendant Ali.” The court also told the jury that “if you were instructed that some
evidence was received for a limited purpose only, you must follow that instruction.”
Hassan contends that these instructions were insufficient to eliminate spillover
concerns because “it was not clearly stated that [the evidence] should not be
considered in the case against Ms. Hassan.” This argument meaninglessly splits hairs.
The court’s instructions plainly limited the jury’s consideration of the Rule 404(b)
evidence to the issue of Ali’s intent. See United States v. Ford, 726 F.3d 1028, 1033
(8th Cir. 2013) (stating that juries are presumed to be able to follow and understand
the court’s instructions), cert. denied, 574 U.S. ---, 135 S. Ct. 131 (2014). Moreover,
the court also limited spillover concerns by telling the jury that it must give “separate
consideration to the evidence about each individual defendant” and that “[e]ach
-19-
defendant is entitled to be treated separately.” See Ghant, 339 F.3d at 666 (relying on
a similar instruction).
In addition, this case was not so complicated that concerns about the jury’s
ability to follow these instructions arise. See id. Although the trial lasted ten days,
it focused on the Government’s straightforward theory that Ali and Hassan took part
in a scheme to funnel money to al Shabaab. “Despite the different degree of
involvement on the part of each of the defendants, we believe that the jury would have
been able to compartmentalize the evidence against [Hassan].” See id. We therefore
find no abuse of discretion in the court’s denial of Hassan’s motion for severance due
to compartmentalization concerns.
Fourth, Ali argues that severance was required under Bruton v. United States,
391 U.S. 123 (1968). “We review de novo the issue of whether a Bruton violation
occurred.” United States v. High Elk, 442 F.3d 622, 625 (8th Cir. 2006). In Bruton,
the Supreme Court held that “a defendant is deprived of his rights under the
Confrontation Clause when his nontestifying codefendant’s confession naming him
as a participant in the crime is introduced at their joint trial, even if the jury is
instructed to consider that confession only against the codefendant.” Richardson v.
Marsh, 481 U.S. 200, 201-02 (1987). “Bruton does not apply at all when a
codefendant’s statements do not incriminate the defendant either on their face or when
considered with other evidence.” United States v. Melina, 101 F.3d 567, 570 (8th Cir.
1996), overruled on other grounds by Jones v. United States, 529 U.S. 848 (2000).
Moreover, “Supreme Court cases have held that Bruton is not violated if the non-
testifying defendant’s statement only inculpates a codefendant inferentially—through
linkage to other evidence.” United States v. Coleman, 349 F.3d 1077, 1085 (8th Cir.
2003) (discussing redacted statement of non-testifying defendant).
Ali asserts that the admission of three of Hassan’s statements during her FBI
interviews violated Bruton: (1) “Amina Ali provides [Hassan] a list and [she] collects
-20-
the money and gives it to Amina Ali”; and (2) certain money was “provided to Ms.
Ali”; and (3) “Amina Ali spoke about jihad.” The Government’s brief does not
mention the third statement but argues that the first two statements do not violate
Bruton because “Hassan did not tell the FBI that the money went to al Shabaab.”
However, Hassan’s statements linked Ali to some of the money that formed the basis
of the Government’s material-support case. Thus, these statements arguably
inculpated Ali when considered alongside other evidence presented at trial. Cf.
Melina, 101 F.3d at 570 (finding no Bruton error where a codefendant’s statements
that mentioned the defendant at most inculpated the defendant when considered with
other evidence and the district court’s limiting instruction cured any risk of harm to
the defendant). Even so, we need not resolve whether the statements listed above
violated Bruton.
“It is well-established that a Bruton error is subject to harmless-error analysis.”
Coleman, 349 F.3d at 1086. Assuming that Bruton was violated, we must determine
whether the error was harmless beyond a reasonable doubt. United States v.
Chapman, 345 F.3d 630, 635 (8th Cir. 2003). A Bruton error can be harmless beyond
a reasonable doubt if “[t]he testimony erroneously admitted was merely cumulative
of other overwhelming and largely uncontroverted evidence properly before the jury.”
Brown v. United States, 411 U.S. 223, 231 (1973); see Coleman, 349 F.3d at 1086.
As described above in Part I, the Government’s case meticulously connected Ali to
the money sent to al Shabaab—through telephone calls and documentation for the
money transfers. As a result, Hassan’s statements connecting Ali to some of this
money merely served as cumulative evidence of a fact that the Government
overwhelmingly proved. Indeed, during Ali’s closing argument, her counsel
acknowledged as much, stating that “[Ali] was raising money for the jihad. She was
raising money for the fighters. . . . She was raising money for the families that were
left over for the martyred fighters. It’s all over. She wasn’t hiding it because these
were public calls.” The admission of Hassan’s statement that Ali spoke about jihad
also was harmless beyond a reasonable doubt. The Government admitted recorded
-21-
conversations in which Ali specifically mentioned jihad, and Ali’s counsel asserted
in closing argument that Ali “did not hide that the duty is jihad.” Consequently, even
if Ali’s Confrontation Clause rights were violated, any error was harmless beyond a
reasonable doubt. See Brown, 411 U.S. at 231.
E. Evidentiary Issues
Ali and Hassan appeal several of the district court’s evidentiary rulings. They
meaningfully challenge the admission of three categories of evidence: (1) evidence
that Ali supported al Shabaab before its designation as a foreign terrorist organization;
(2) evidence that Ali and Hassan spoke with and supported non-al Shabaab persons
who were specially designated global terrorists or were associated with specially
designated global terrorists; and (3) expert testimony about the connections between
al Shabaab and al Qaeda.3 We review these issues for clear abuse of discretion and
will reverse “only when an improper evidentiary ruling affected the defendant’s
substantial rights or had more than a slight influence on the verdict.” Omar, 786 F.3d
at 1112 (quoting Anderson, 783 F.3d at 745).
We begin with the contention that evidence of Ali’s support of al Shabaab
before it was designated a foreign terrorist organization constitutes inadmissible
propensity evidence under Rule 404(b). This rule provides that “[e]vidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order to
3
Ali and Hassan mention other pieces of evidence that they say should have
been excluded, but they fail to take the necessary step of explaining why this evidence
was inadmissible. This is insufficient to raise an argument for our consideration. See
Fed. R. App. P. 28(a)(8)(A) (stating that an appellant’s brief should contain
“appellant’s contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies” (emphasis added)); Stanko, 491 F.3d
at 415 (noting that claims not meaningful argued in the appellant’s opening brief are
waived).
-22-
show that on a particular occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). However, evidence may be admitted for another purpose,
such as proving “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “Rule 404(b) is a
rule of inclusion, prohibiting only evidence that tends solely to prove the defendant’s
criminal disposition.” United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995).
The Government argues that evidence of Ali’s pre-designation support of al
Shabaab is not subject to Rule 404(b) because it is intrinsic evidence of the charged
conspiracy. “Rule 404(b) applies only to extrinsic, not intrinsic, evidence.” United
States v. Young, 753 F.3d 757, 770 (8th Cir. 2014), cert. denied, 574 U.S. ---, 135 S.
Ct. 986 (2015). “Evidence of other wrongful conduct is considered intrinsic when it
is offered for the purpose of providing the context in which the charged crime
occurred.” Id. (quoting United States v. Johnson, 463 F.3d 803, 808 (8th Cir. 2006)).
Put differently, intrinsic evidence “completes the story or provides a total picture of
the charged crime.” Id. (internal quotation marks omitted) (quoting Johnson, 463 F.3d
at 808). We agree that the evidence of Ali’s pre-designation support of al Shabaab
qualifies as intrinsic evidence. In a telephone call, Ali told Afgoye that, in 2007, she
contacted an al Shabaab leader, and “[w]e immediately collected money in a quick
manner and sent it to them” and “have been collecting for them ever since.” Ali stated
that she later learned that the “young men”—a reference to al Shabaab—“should be
isolated.” The Government contends that being “isolated” refers to al Shabaab’s
designation as a foreign terrorist organization, an assertion that is corroborated by
Ali’s statement to Afgoye that her family members tried to convince her to avoid
arrest. This telephone call qualifies as intrinsic evidence of the charged conspiracy.
Ali’s conversation with Afgoye shows how she began raising money for al Shabaab
and arguably illustrates how she reacted to the news that it was illegal to send money
to al Shabaab, thereby providing context to the charged crime. See United States v.
Roberts, 253 F.3d 1131, 1134 (8th Cir. 2001) (“[I]t is fair to say that [the defendant’s]
-23-
prior bank robberies . . . helped to explain both the genesis and the execution of [the
defendants’] bank robbery offense.”).
Ali and Hassan next assert that Rule 404(b) prohibits the admission of evidence
about their contact with and support of non-al Shabaab individuals who were specially
designated global terrorists or were associated with specially designated global
terrorists. One such individual was Hassan Dahir Aweys, who led a militia in Somalia
and “has acted as a mentor for a number of the key leaders in al Shabaab and . . . is
currently aligned with al Shabaab.” The Government’s evidence about Aweys
included a telephone call between Ali and Hassan in which they discussed having
Aweys speak during a teleconference. After Aweys eventually spoke, Ali told Afgoye
that “[n]o one donated anything[, b]ut I sent you the small amount that was donated.”
This telephone call thus connected Aweys to the conspiracy to provide material
support to al Shabaab. Consequently, the evidence about Aweys likewise was
intrinsic to the charged conspiracy. See Young, 753 F.3d at 770 (stating that intrinsic
evidence is “inextricably intertwined as an integral part of the immediate context of
the crime charged” (quoting United States v. Rolett, 151 F.3d 787, 790 (8th Cir.
1998)); Moore v. United States, 178 F.3d 994, 1000 (8th Cir. 1999).
Ali and Hassan next object to the admission under Rule 404(b) of evidence
about Isse Kamboni. The jury learned that Kamboni was associated with another
militia aligned with al Shabaab and that this militia was led by Hassan al-Turki, who
was a specially designated global terrorist. The Government admitted a telephone call
between Ali and Kamboni in which Kamboni described a joint operation between his
militia and al Shabaab. Ali then mentioned sending Kamboni money. In another
telephone call, Ali told Kamboni that “we will try to send $1,000, God willing. . . . We
will send it under someone’s name, God willing.” The district court did not abuse its
discretion by admitting this evidence because it helped to establish Ali’s intent for the
charged crimes. See Fed. R. Evid. 404(b)(2). For example, in order to convict Ali of
conspiring to provide material support to al Shabaab, the Government had to show,
-24-
among other things, that she “knew that al Shabaab was a designated terrorist
organization, knew that al Shabaab has engaged or engages in terrorist activity, or
knew that al Shabaab has engaged or engages in terrorism.” Omar, 786 F.3d at 1113
(citing 18 U.S.C. § 2339B(a)(1)). That Ali spoke with and supported another militia
aligned with al Shabaab undermined her defense that she merely intended to provide
humanitarian relief and instead showed that she knew the true nature of al Shabaab’s
activities.
Ali and Hassan argue that this evidence is nonetheless inadmissible because it
is unfairly prejudicial. See United States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006)
(listing requirements for admitting evidence under Rule 404(b), including that its
probative value is not substantially outweighed by the danger of unfair prejudice
under Rule 403). As explained just above, by rebutting one of Ali’s defenses and
proving the mens rea element under 18 U.S.C. § 2339B, the evidence about Ali’s
communication with and support of Kamboni had meaningful probative value.
Furthermore, the district court gave limiting instructions to the jury about this
evidence that diminished any danger of unfair prejudice. See United States v.
Franklin, 250 F.3d 653, 659 (8th Cir. 2001). For these reasons, the district court did
not abuse its discretion by admitting Rule 404(b) evidence about Ali’s communication
with and support of Kamboni and his militia.
Finally, Ali and Hassan contend that the district court abused its discretion by
allowing Matthew Bryden, the Government’s expert witness, to testify about the
connections between al Shabaab and al Qaeda. This testimony, they argue, should
have been excluded as unfairly prejudicial under Rule 403. This argument mirrors an
argument that we rejected in Omar. There, we considered testimony by the same
expert witness about “al Shabaab’s connections to al Qaeda, Osama bin Laden, and
global jihad.” Omar, 786 F.3d at 1112. In Omar, we found that Bryden’s testimony
about al Shabaab’s connections to al Qaeda was “dry and academic” and “devoid of
vivid imagery that might excite the jury.” Id. at 1113 (quoting United States v.
-25-
Ibrahim, 529 F. App’x 59, 63 (2d Cir. 2013) (summary order)). Bryden’s matter-of-
fact testimony here was no different. Moreover, Bryden’s description of al Shabaab’s
connections to al Qaeda was only a small part of his lengthy testimony, and the trial
court was careful not to allow Bryden’s testimony about this topic to become a point
of emphasis during trial, sustaining Ali’s objection when another witness was asked
to repeat Bryden’s testimony. See id.
Bryden’s testimony also had substantial probative value. As we explained in
Omar, a description of the connections between al Shabaab and al Qaeda “helped to
establish the open and notorious nature of al Shabaab’s activities,” a fact that is
relevant for establishing the mens rea necessary for a material-support conviction
under 18 U.S.C. § 2339B. 786 F.3d at 1112-13. Moreover, much of Bryden’s
testimony about al Qaeda related to an exchange of statements between Osama bin
Laden and al Shabaab. This testimony was probative because the Government
admitted a telephone call between Ali and Afgoye in which the two discussed al
Shabaab’s response to Osama bin Laden’s message. Bryden’s testimony therefore
added helpful context for the trier of fact. For these reasons, we find no abuse of
discretion in permitting Bryden’s limited testimony about the ties between al Shabaab
and al Qaeda.
F. Closing Argument
Ali and Hassan contend that the Government made improper and prejudicial
remarks during the rebuttal portion of its closing argument. “To be successful, [a
defendant] must show that the [Government’s] remarks were improper and that his
right to a fair trial was prejudiced.” United States v. Collins, 642 F.3d 654, 657 (8th
Cir. 2011). However, because no objection was made during the rebuttal argument,
our review is for plain error. See id. (“Unobjected-to closing statements are grounds
for reversal only in exceptional circumstances.”).
-26-
First, Ali and Hassan claim the prosecutor improperly “vouched” for al
Shabaab’s designation as a foreign terrorist organization. Cf. United States v. Benitez-
Meraz, 161 F.3d 1163, 1167-68 (8th Cir. 1998) (discussing improper vouching). In
particular, Ali and Hassan point to the prosecutor’s remark that “it’s not your decision
whether al Shabaab should be designated as a foreign terrorist organization. That
decision has been made at the highest levels of the United States government.” But
this was a correct statement of the law on which the jury was instructed, see 8 U.S.C.
§ 1189(a)(1), (a)(8), and we have rejected a prosecutorial-misconduct argument
where, as here, “the prosecutor did little more than paraphrase the court’s [jury]
instruction.” United States v. Johnson, 639 F.3d 433, 442 (8th Cir. 2011).
Second, Ali and Hassan object to the prosecutor’s comments during rebuttal
argument about the propriety of al Shabaab’s designation as a foreign terrorist
organization—for example, by saying that there are “good reasons” for this
designation. But Ali’s and Hassan’s closing arguments about al Shabaab “invited a
response by the prosecutor and the prosecutor has a right to reply to an argument
raised by the defense.” See Wycoff v. Nix, 869 F.2d 1111, 1114 (8th Cir. 1989); see
Collins, 642 F.3d at 658 (“An advocate is permitted considerable latitude in
responding to his opponent’s arguments.”) (quoting United States v. Beaman, 361
F.3d 1061, 1065 (8th Cir. 2004)). In their closing arguments, Ali and Hassan
attempted to portray al Shabaab in a positive light, saying that al Shabaab was
“knock[ing] the foreign invader out” and was seen as a “popular movement,” a
“movement of the Somalian people,” and a group of “freedom fighters.” Because the
prosecutor’s comments were a fair reply to these assertions, no plain error was
committed. See Wycoff, 869 F.2d at 1114-15.
Third, Ali and Hassan object to the prosecutor’s reference to Zacarias
Moussaoui during rebuttal argument. The prosecutor described Moussaoui as the
“20th hijacker” who was captured before the September 11th terrorist attacks and
stated:
-27-
[S]uppose the FBI had gone to him and said, Mr. Moussaoui, we have
heard you might have some information about something that’s going to
happen and he lied and said I don’t know anything about it . . . I don’t
have any contact with those people, I don’t know anybody who is about
to go do something against the United States. Would anybody here just
say, well, it wouldn’t be fair to convict him?
The Government defends this argument as a fair reply to Hassan’s closing argument
that asked the jury whether it would be “fair” to convict her of making false
statements that did “not influence[] the Government one bit.” Though the
prosecutor’s rhetorical comparison to an individual associated with the September
11th terrorist attacks gives us some pause, the Government was not the first party to
bring up these attacks. Ali’s counsel already had discussed the September 11 terrorist
attacks during closing argument, comparing the attacks to “Japanese kamikaze pilots.”
“While the prosecutor’s remark might well have been improper if unprovoked, ‘where
the prosecutor, his witnesses, or the work of government agents is attacked, the
[prosecutor] is entitled to make a fair response and rebuttal.’” Beaman, 361 F.3d at
1066 (alteration omitted) (quoting United States v. Lee, 743 F.2d 1240, 1253 (8th Cir.
1984)). We discern no plain error.
G. Sentencing
We now turn to Ali’s and Hassan’s sentences. Ali and Hassan first contend that
the district court erred by imposing two sentencing guidelines enhancements. In
reviewing the district court’s imposition of these enhancements, we review factual
findings for clear error and the construction and application of the advisory sentencing
guidelines de novo. See United States v. Stong, 773 F.3d 920, 925 (8th Cir. 2014),
cert. denied, 575 U.S. ---, 135 S. Ct. 1872 (2015).
We begin with the sentencing enhancements imposed under USSG § 3A1.4,
which states that “[i]f the offense is a felony that involved, or was intended to
-28-
promote, a federal crime of terrorism, increase by 12 levels” and “the defendant’s
criminal history category . . . shall be Category VI.” Ali and Hassan assert that a
conviction under 18 U.S.C. § 2339B for material support of a foreign terrorist
organization cannot be a federal crime of terrorism for purposes of the § 3A1.4
enhancement. However, under § 3A1.4, a federal crime of terrorism has the meaning
given to that term in 18 U.S.C. § 2332b(g)(5). USSG § 3A1.4 cmt. n.1. Section
2332b(g)(5), in turn, provides that a federal crime of terrorism is an offense that “is
calculated to influence or affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct” and is a violation of certain
enumerated provisions. Among these identified provisions is 18 U.S.C. § 2339B, the
provision under which Ali and Hassan were convicted.
Ali and Hassan respond that applying the § 3A1.4 enhancement to a conviction
under 18 U.S.C. § 2339B is inconsistent with a congressional directive to the United
States Sentencing Commission. They note that, in 1994, Congress told the Sentencing
Commission to “amend its sentencing guidelines to provide an appropriate
enhancement for any felony . . . that involves or is intended to promote international
terrorism, unless such involvement or intent is itself an element of the crime.” Violent
Crime Control & Law Enforcement Act of 1994, Pub. L. No. 103-322, § 120004, 108
Stat. 1796, 2022 (1994) (emphasis added). Relying on the italicized language, Ali and
Hassan assert that the § 3A1.4 enhancement cannot apply to their § 2339B
convictions. We need not weigh in on this legal issue because, in 1996, Congress
ordered the Commission to “amend the sentencing guidelines so that
the . . . adjustment relating to international terrorism only applies to Federal crimes
of terrorism, as defined in section 2332b(g) of title 18, United States Code.”
Antiterrorism & Effective Death Penalty Act of 1996, Pub. L. No. 104-32, § 730, 110
Stat. 1214, 1303 (1996). “The Sentencing Commission did as instructed, adding the
first application note to section 3A1.4 defining a ‘federal crime of terrorism’ as having
the same ‘meaning given that term in 18 U.S.C. § 2332b(g)(5).’” United States v.
Jordi, 418 F.3d 1212, 1216 n.2 (11th Cir. 2005) (quoting USSG 3A1.4(a) cmt. n.1).
-29-
Therefore, “it is clear that the [§ 3A1.4] terrorism enhancement may be imposed on
a defendant who has been convicted of providing material support to a designated
[foreign terrorist organization].” Hammoud, 381 F.3d at 355.
Ali and Hassan next challenge the § 3A1.4 enhancement as violating their Sixth
Amendment right to a jury trial. We have rejected this argument before. United
States v. Mohamed, 757 F.3d 757, 760 (8th Cir. 2014). It is settled that “the Sixth
Amendment permits a district court to rely on facts beyond those found by the jury
when the court calculates the applicable advisory sentencing guidelines range and
selects a sentence within the statutorily-prescribed range.” United States v. Bennett,
765 F.3d 887, 897 (8th Cir. 2014), cert. denied, 574 U.S. ---, 135 S. Ct. 1463 (2015).
Therefore, the court’s imposition of the § 3A1.4 enhancement did not violate the Sixth
Amendment rights of Ali or Hassan. See Mohamed, 757 F.3d at 760.
Ali and Hassan also assert that imposing the § 3A1.4 enhancement violates their
due-process rights because this sentencing enhancement is based solely on prejudice
and fear. The Second Circuit, as Ali and Hassan acknowledge, roundly rejected a
similar due-process challenge to the § 3A1.4 enhancement in United States v. Meskini,
319 F.3d 88 (2d Cir. 2003). Applying rational basis review, the court concluded that
Congress and the Sentencing Commission “had a rational basis for concluding that an
act of terrorism represents a particularly grave threat because of the dangerousness of
the crime and the difficulty of deterring and rehabilitating the criminal, and thus that
terrorists and their supporters should be incapacitated for a longer period of time.” Id.
at 92. The court continued, “[E]ven terrorists with no prior criminal behavior are
unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation,
and the need for incapacitation.” Id
Our court considered a due-process challenge to a sentencing enhancement in
United States v. Meirick, 674 F.3d 802 (8th Cir. 2012). We began with the
proposition that “[o]nce a person has been convicted of a crime in accordance with
-30-
constitutional guarantees, determining the severity of his punishment is, in the first
instance, a legislative task.” Id. at 805. “Those [legislative] decisions are not subject
to substantive due process . . . review, absent line-drawing that is totally arbitrary or
based upon an impermissible factor such as race.” Id. As a result, “‘rational basis’
review of sentencing provisions under the Due Process Clause . . . must be highly
deferential to legislative judgments about the most effective way to protect the public
from convicted criminals.” Id. However, in Meirick, we declined to apply rational
basis review to the challenged sentencing enhancement because it “did not cause [the
defendant’s] sentencing injury” in light of the advisory nature of the sentencing
guidelines. Id.
After Meirick, a strong argument could be made that we need not review the
§ 3A1.4 enhancement under rational basis review. See id. However, instead of
addressing Meirick, Ali, Hassan, and the Government have argued the merits of this
issue. For this reason, rather than consider Meirick’s applicability, we simply adopt
the Second Circuit’s well-reasoned conclusion in Meskini that the § 3A1.4
enhancement is “in no way irrational” and survives rational basis review. 319 F.3d
at 92.
Ali and Hassan also urge that the § 3A1.4 enhancement was improperly applied
because their offenses were not “calculated to influence or affect the conduct of
government by intimidation or coercion, or to retaliate against government conduct.”
See 18 U.S.C. § 2332b(g)(5)(A). We recently explained that this standard “does not
focus on the defendant but on his ‘offense,’ asking whether it was calculated, i.e.,
planned—for whatever reason or motive—to achieve the stated object.” Mohamed,
757 F.3d at 760 (quoting United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010)).
“‘Calculation’ is concerned with the object that the actor seeks to achieve through
planning or contrivance.” Id. (quoting Awan, 607 F.3d at 317).
-31-
The district court did not err by concluding that Ali’s and Hassan’s offenses
were calculated to influence or affect the conduct of government by intimidation or
coercion or to retaliate against government conduct.4 The district court so concluded
based upon Ali’s and Hassan’s contact with al Shabaab members, their vocal support
of al Shabaab’s efforts to expel the TFG by force, and their fundraising efforts in
support of that cause. As the district court noted, when Hassan learned of a suicide
bombing that targeted a TFG minister, she described it as “[t]he best joy ever.” And
when Ali learned that al Shabaab had “captured alive and then slaughtered” forces
aligned with the TFG, Ali stated, “Were they killed? Thanks God. Yes.” These facts
demonstrate that Ali’s and Hassan’s offenses were calculated to influence or affect the
TFG by intimidation or coercion or to retaliate against that government. See
Hammoud, 381 F.3d at 356.
Ali and Hassan next challenge the imposition of a two-level enhancement under
USSG § 2M5.3(b)(1)(E), which applies if an offense involves “the provision
of . . . funds or other material support or resources with the intent, knowledge, or
reason to believe they are to be used to commit or assist in the commission of a violent
act.” They contend that their conduct does not warrant applying this enhancement.
Based upon the facts just described, there was no error by the district court in
concluding otherwise.5
4
Relying upon expert testimony from trial, the district court found that the TFG
was the recognized government of Somalia at all relevant times. Neither Hassan nor
Ali meaningfully challenge this finding on appeal. See Mohamed, 757 F.3d at 760
(affirming application of the § 3A1.4 enhancement where plea agreement stated that
defendant “assisted men with traveling to Somalia, so that the men could fight against
Ethiopian troops who were in Somalia assisting the internationally-recognized
Transitional Federal Government”) (ellipsis omitted).
5
Ali and Hassan assert that the record does not indicate whether the district
court considered granting a downward departure under USSG § 2M5.3 cmt. n.2, even
though Ali raised this issue in her sentencing memorandum. However, at Ali’s
sentencing hearing, she failed to raise this departure argument even after the court
-32-
This brings us to the individual challenges that Ali and Hassan raise with
respect to their sentences. We begin with Ali’s sentence of 240 months in prison. She
first contends that the court procedurally erred by failing to consider the factors from
18 U.S.C. § 3553(a) and by failing to explain the reasons for her sentence. See United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “We do not require
a mechanical recitation of the § 3553(a) factors at sentencing.” United States v. Diaz-
Pellegaud, 666 F.3d 492, 504 (8th Cir. 2012). Rather, “it simply must be clear from
the record that the district court actually considered the § 3553(a) factors in
determining the sentence.” Id. (quoting United States v. Walking Eagle, 553 F.3d 654,
659 (8th Cir. 2009)).
Before sentencing Ali, the court conducted a lengthy sentencing hearing during
which it asked many questions that related to the § 3553(a) factors. The court asked
Ali questions about her background, her contact with members of al Shabaab, her
understanding of al Shabaab’s goals and activities, and the circumstances under which
she had sent money to al Shabaab. Furthermore, in sentencing Ali, the court
specifically stated that it had followed the § 3553(a) factors and had considered the
presentence investigation report, counsels’ arguments, and “all the pertinent terrorism
cases.” The district court’s questions and its statement in imposing Ali’s sentence
satisfy us that the court “considered the parties’ arguments and ha[d] a reasoned basis
for exercising [its] own legal decisionmaking authority.” United States v. Roberson,
517 F.3d 990, 994 (8th Cir. 2008) (second alteration in original) (quoting Rita v.
asked whether there were “[a]ny other objections to the advisory guideline
calculations by the defense.” This suggests waiver of this contention. See United
States v. White, 447 F.3d 1029, 1031-32 (8th Cir. 2006) (finding waiver where the
defendant filed written objections to the facts in the presentence investigation report
but acknowledged at the sentencing hearing that those facts were correct). Even if we
reviewed this argument for plain error, we would find that Ali and Hassan have not
met their burden of “demonstrat[ing] a reasonable probability that, but for the error,
the outcome would have been different.” United States v. Ault, 598 F.3d 1039, 1042-
43 (8th Cir. 2010); see United States v. Bain, 586 F.3d 634, 640-41 (8th Cir. 2009).
-33-
United States, 551 U.S. 338, 356 (2007)). Furthermore, the district court later issued
a written statement of reasons that expounded on its sentencing rationale. Cf. United
States v. Townsend, 617 F.3d 991, 994-95 (8th Cir. 2010) (per curiam).
Ali also argues that her 240-month sentence is substantively unreasonable. We
review this contention under a deferential abuse-of-discretion standard. Stong, 773
F.3d at 926. A district court abuses its discretion and imposes an unreasonable
sentence “when it fails to consider a relevant and significant factor, gives significant
weight to an irrelevant or improper factor, or considers the appropriate factors but
commits a clear error of judgment in weighing those factors.” Id. (quoting United
States v. Robison, 759 F.3d 947, 950-51 (8th Cir. 2014)). However, when a district
court varies downward from the advisory sentencing guidelines range, as the court did
in fashioning Ali’s sentence, “it is nearly inconceivable that the court abused its
discretion in not varying downward still further.” United States v. Zauner, 688 F.3d
426, 429 (8th Cir. 2012) (quoting United States v. Lazarski, 560 F.3d 731, 733 (8th
Cir. 2009)).
In urging that her below-guidelines sentence is substantively unreasonable, Ali
advances two arguments. First, she asserts that the court improperly weighed her
religion and her refusal to disavow it.6 Cf. United States v. Gunderson, 211 F.3d
1088, 1089 (8th Cir. 2000) (“The sentencing guidelines direct that a defendant’s
religion is not relevant to the determination of a sentence.”). The portion of the
sentencing transcript that Ali cites for this contention does not support her argument.
Rather, as detailed in Section II.A, the district court merely explored Ali’s
6
As we have done before, “[w]e recognize the existence of a second line of
authority that categorizes a district court’s consideration of an allegedly improper or
irrelevant factor as a procedural error rather than a challenge to substantive
reasonableness.” United States v. O’Connor, 567 F.3d 395, 397 n.3 (8th Cir. 2009).
Because we would reach the same result under either framework, we need not resolve
this issue here.
-34-
understanding of al Shabaab’s goals and actions—a permissible factor to consider in
sentencing. See 18 U.S.C. § 3553(a)(1)-(2). Second, Ali contends that the court
committed a clear error of judgment in weighing the § 3553(a) factors, including “the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” Ali further urges that the court
should have given greater weight to the fact that al Shabaab was not designated a
foreign terrorist organization until shortly before she committed her crimes. However,
having reviewed the record and recognizing that the district court has substantial
latitude in weighing the § 3553(a) factors, we conclude that Ali’s below-guidelines
sentence is not substantively unreasonable. See Stong, 773 F.3d at 927.
Hassan also raises several challenges to her 120-month sentence, which is well
below the advisory sentencing guidelines range. Hassan claims that the district court
procedurally erred by failing to consider the § 3553(a) factors and by failing to explain
its sentencing rationale so as to permit meaningful appellate review. See Feemster,
572 F.3d at 461. In particular, Hassan asserts that the court failed to consider her
mitigating evidence—specifically, her diagnosis of post-traumatic stress disorder and
her life experiences. However, Hassan’s counsel made these specific mitigation
arguments during the sentencing hearing, and “we presume the district court considers
such matters as are presented to it,” Grimes, 702 F.3d at 471. Furthermore, the court
conducted a lengthy sentencing hearing during which it asked several questions
related to the § 3553(a) factors, including questions about Hassan’s background, her
knowledge of events in Somalia, and her understanding of al Shabaab’s goals and
activities. And before sentencing Hassan, the court stated that it had considered the
§ 3553(a) factors, the “pertinent terrorism cases,” the presentence investigation report,
counsel’s arguments, the evidence from trial, and the court’s discussion with Hassan
at the sentencing hearing. We also note that the court later issued a written statement
of reasons about Hassan’s sentence. We accordingly reject Hassan’s claims of
procedural error. See Roberson, 517 F.3d at 994.
-35-
Hassan’s substantive reasonableness argument likewise fails. Her primary
contention is that the court improperly weighed her religion and her refusal to disavow
it. Cf. Gunderson, 211 F.3d at 1089; see also O’Connor, 567 F.3d at 397 n.3. Some
of the court’s questions during the sentencing hearing, such as querying Hassan about
whether the Qu’ran permits suicide bombings, when she started wearing a hijab, and
whether she knows about “the philosophy or religious viewpoint of al Shabaab,” touch
on the topic of religion. However, as the recorded telephone calls admitted at trial
make clear, “religion was a pervasive theme underlying the entire trial. It is thus not
surprising that religion might have been mentioned at sentencing.” United States v.
Hoffman, 626 F.3d 993, 999 (8th Cir. 2010). Viewing the district court’s above-
quoted comments in context and having reviewed the entire sentencing transcript, we
can find no suggestion that the court based Hassan’s sentence, which was twenty years
below the bottom of her advisory guidelines range, on Hassan’s religion or her refusal
to disavow it. See id. Hassan further argues that her sentence is substantively
unreasonable because of her limited role in the conspiracy. However, according due
deference to the court’s weighing of the § 3553(a) factors, we conclude that Hassan’s
below-guidelines sentence is not substantively unreasonable. See Stong, 773 F.3d at
927.
III. Conclusion
For the reasons described above, we affirm.
______________________________
-36-