United States v. Mohamed Farah ( 2018 )


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  • United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 16-4363
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Mohamed Abdihamid Farah
    lllllllllllllllllllllDefendant - Appellant
    ___________________________
    No. 16-4364
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Abdirahman Yasin Daud
    lllllllllllllllllllllDefendant - Appellant
    ___________________________
    No. 16-4366
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Guled Ali Omar
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeals from United States District Court
    for the District of Minnesota - St. Paul
    ____________
    Submitted: June 14, 2018
    Filed: August 10, 2018
    ____________
    Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
    ____________
    GRUENDER, Circuit Judge.
    Appellants Mohamed Farah, Abdirahman Daud, and Guled Omar were
    convicted of several federal offenses related to their participation in a conspiracy to
    join the foreign terrorist organization known as the Islamic State of Iraq and the
    Levant (“ISIL”). They now appeal their convictions for conspiracy to commit murder
    abroad, see 
    18 U.S.C. § 956
    (a), arguing that the district court’s1 jury instructions did
    not require the Government to prove the requisite mens rea and that they were
    entitled to instructions on two affirmative defenses. They also challenge their
    sentences on both procedural and substantive grounds, and Farah claims that the
    district court improperly denied his motion to substitute counsel. For the reasons that
    follow, we affirm.
    1
    The Honorable Michael J. Davis, United States District Judge for the District
    of Minnesota.
    -2-
    I.
    A.
    In 2014, a group of Somali-Americans from the Twin Cities agreed to travel
    to Syria and join ISIL. Federal law enforcement disrupted the plot, but not before
    several of the conspirators made it to the front lines. Other members of the group
    eventually cooperated with the authorities. Appellants Farah, Daud, and Omar were
    the only conspirators to face trial. Because the thrust of their appeal relates to their
    convictions for conspiracy to commit murder abroad—and specifically to the intent
    element of this offense—our recitation of the facts focuses on that issue.
    In March 2014, Omar, Daud, Farah, and others gathered at a local mosque.
    One of their friends had recently left to fight against the Assad regime in Syria, so
    they discussed the ongoing conflict and spent much of the evening watching pro-ISIL
    propaganda videos. One of the attendees, Abdullahi Yusuf, claims that Omar
    recruited him that night to join a local group whose purpose was to “get to Syria and
    fight . . . for ISIL.”
    The group began meeting at least three times per week to watch jihadi videos
    and discuss the possibility of fighting in Syria. At one such meeting in April 2014,
    Omar gave an “ultimatum”: leave the group or prepare for “a long and hard
    journey . . . to get to Syria and fight.” After this speech, the group launched into more
    concrete planning. They considered a variety of logistical challenges, including how
    they would secure passports, raise funds, and get from Minneapolis to Syria. They
    planned to fly to Turkey and arranged for ISIL handlers to facilitate transportation
    across the border into Syria. Yusuf later testified that, upon arriving in Syria, the goal
    was to join ISIL, attend a training camp, and do whatever ISIL required. He also
    recalled having specific conversations with Farah, Daud, and Omar about their desire
    to join the fight in Syria, and he confirmed that all three appellants understood this
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    meant “killing people.” According to another cooperating witness, the group had
    forged an “agreement to go kill people for ISIL.”
    As the group’s leader, Omar decided that the first group of conspirators would
    leave for Syria by June 1, 2014. Some made it to Syria and joined ISIL, while others
    were detained by the authorities. Sensing obstacles to departing directly from the
    United States, Omar and two other conspirators planned to drive from Minnesota to
    California, cross the border into Mexico, obtain fradulent travel documents, and make
    their way to Syria. They rented a car for the drive, but Omar’s family intervened to
    prevent them from leaving.
    A second round of attempts to reach Syria took place in late 2014, prompted
    by the group’s increased awareness of government surveillance. Daud pushed
    everyone to leave the country on November 8, 2014. Though his own passport
    application had been denied, Daud used his money to help Farah travel to Syria.
    Farah took a Greyhound bus from Minnesota to New York but was detained while
    boarding a flight to Istanbul at JFK Airport. Similarly, Omar attempted to fly from
    Minneapolis to San Diego with his passport, but he was prevented from boarding the
    flight. Omar claims that he was not trying to leave the country, but he was recorded
    admitting that he was attempting to “get out right then and there.” Both Farah and
    Omar were subsequently released.
    In December 2014, one of the conspirators, Abdirahman Bashir, had a change
    of heart about ISIL after learning that several of his cousins had died fighting in
    Syria. He withdrew from the conspiracy and decided to cooperate with the FBI.
    Bashir later began recording conversations with his former co-conspirators. These
    recordings reveal that, despite previous setbacks, all three appellants remained
    committed to fighting and killing for ISIL. Omar, for example, discussed the thrill
    of conducting night raids with ISIL and his desire to serve as a “tank-hunter.” The
    recorded conversations also capture the appellants’ increasing animosity toward the
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    United States. Daud and Farah longed for an opportunity to participate in an ISIL
    operation on American soil, and Omar looked forward to the demise of the United
    States: “[The infidels] are getting it. Allah will not let America be a superpower for
    this long . . . . [T]heir time is coming.”
    In early 2015, Farah developed a contact he believed could provide fake
    passports for the group. After making arrangements, Daud, Farah, and Bashir drove
    cross-country to meet the contact in San Diego. During the drive, Daud reiterated his
    desire to fight for ISIL, declaring both his hatred for the United States and his longing
    to “shoot the lights out of” an AK-47 upon making contact with ISIL. After they
    arrived in California and paid for the fraudulent documents, Daud and Farah were
    arrested by the passport contact, who turned out to be an undercover FBI agent.
    Omar was also taken into custody shortly thereafter.
    A grand jury later indicted Omar, Farah, and Daud for a variety of offenses
    related to their roles in the conspiracy. All three appellants were charged with one
    count of conspiracy to murder outside the United States, in violation of 
    18 U.S.C. § 956
    (a), as well as multiple counts of attempt and conspiracy to provide material
    support to a designated foreign terrorist organization, in violation of 18 U.S.C.
    § 2339B(a)(1). Additionally, Farah and Daud were charged with perjury, see id.
    § 1621; Farah was charged with making a false statement, see id. § 1001; and Omar
    was charged with attempted financial aid fraud, see 
    20 U.S.C. § 1097
    (a).
    B.
    Before trial, the Government alerted the district court to a potential conflict of
    interest involving a paralegal on Farah’s defense team. At a hearing on the matter
    just over a month before trial, the attorney who employed the paralegal moved to
    withdraw as counsel. The court then inquired as to whether Farah’s other attorney,
    Murad Mohammad, was capable of trying the case alone. Mohammad assured the
    court that he could, and Farah expressed complete confidence in Mohammad’s ability
    -5-
    to do so. On the basis of these assurances, the district court granted the motion to
    withdraw and allowed Mohammad to represent Farah alone.
    This arrangement appeared to be working until Mohammad moved to withdraw
    four days before trial, citing a breakdown in communication and a lack of trust. The
    district court conducted another hearing the morning that trial was scheduled to begin.
    Farah explained that he had lost confidence in Mohammad and specifically alleged
    that the two had not met regularly and that he did not have access to discovery
    materials. But Mohammad contradicted Farah’s account. He testified about weekly
    meetings, in addition to several phone calls, and confirmed that Farah had been
    offered access to discovery materials, which Farah declined. In light of Mohammad’s
    explanation and Farah’s abundant confidence in him only one month prior, the district
    court concluded that Farah had not shown “justifiable dissatisfaction” and denied the
    request for substitute counsel.
    As trial began, the appellants raised several concerns about the district court’s
    proposed jury instructions on the conspiracy-to-commit-murder counts, arguing that
    it is impossible to conspire to commit murder without a specific intent to kill. The
    district court overruled this objection. The appellants also objected to the denial of
    their requested affirmative-defense instructions on combatant immunity and defense
    of others, which the court overruled due to the lack of an evidentiary foundation.
    After a three-week trial, the jury returned a verdict convicting the appellants
    on all counts except the perjury charge against Daud. The presentence investigation
    report (“PSR”) for each of the appellants calculated an offense level of 43, a criminal
    history category of VI, and a resulting sentencing range of life imprisonment. After
    considering the factors set out in 
    18 U.S.C. § 3553
    (a), the district court varied
    downward for each of the appellants, sentencing Farah and Daud to 360 months’
    imprisonment and Omar to 420 months’ imprisonment.
    -6-
    Farah, Daud, and Omar now appeal on several grounds. Farah argues that the
    district court improperly denied his request to appoint substitute counsel. All three
    appellants challenge their conspiracy-to-commit-murder convictions, claiming that
    the district court erred in its jury instructions by improperly defining murder and by
    refusing to instruct on two affirmative defenses. Lastly, the appellants challenge their
    below-guidelines sentences.
    II.
    We first address Farah’s argument that the district court abused its discretion
    by denying Mohammad’s motion to withdraw and by refusing to appoint substitute
    counsel. “A motion for appointment of substitute counsel is committed to the district
    court’s sound discretion.” United States v. Delacruz, 
    865 F.3d 1000
    , 1008 (8th Cir.
    2017). To prevail, a defendant must show “justifiable dissatisfaction” with his
    attorney, which “can arise from irreconcilable conflict, a complete breakdown in
    communication, or any other factor interfering significantly with an attorney’s ability
    to provide zealous representation.” United States v. Taylor, 
    652 F.3d 905
    , 908 (8th
    Cir. 2011). “Given the importance of the attorney-client relationship, the court must
    conduct an adequate inquiry into the nature and extent of an alleged breakdown in
    attorney-client communications.” 
    Id.
     (internal quotation marks omitted).
    The record demonstrates that the district court conducted a sufficient inquiry
    into Farah’s concerns about Mohammad. See United States v. Jones, 
    662 F.3d 1018
    ,
    1026 (8th Cir. 2011). Indeed, the court rejected his request for substitute counsel
    with the benefit of not one but two hearings. In the hearing on Mohammad’s motion
    to withdraw, the court specifically inquired into Farah’s claims of insufficient
    communication and lack of access to discovery. Moreover, at the hearing just one
    month earlier, Farah repeatedly expressed confidence in Mohammad. The court
    admonished Farah at that time to give prompt notice if he was dissatisfied with
    Mohammad, and Farah concedes that it was his own fault for failing to do so. Thus,
    -7-
    the district court acted well within its discretion in refusing Farah’s request for
    substitute counsel, particularly on the eve of trial. See 
    id. at 1024
     (“Last-minute
    requests to substitute counsel remain disfavored, and a trial court’s discretion is at its
    zenith when the defendant endeavors to replace counsel shortly before trial.” (internal
    quotation marks, citations, and alterations omitted)).
    III.
    We next turn to the appellants’ claim that the district court improperly
    instructed the jury as to conspiracy to commit murder. We review a district court’s
    formulation of jury instructions for an abuse of discretion and its interpretation of law
    de novo. United States v. Cornelison, 
    717 F.3d 623
    , 626 (8th Cir. 2013). An
    instructional error does not warrant reversal of a conviction if it is harmless. United
    States v. Dvorak, 
    617 F.3d 1017
    , 1024 (8th Cir. 2010). “An error in jury instructions
    may be disregarded if it is clear beyond a reasonable doubt that a rational jury would
    have found the defendant guilty absent the error.” 
    Id. at 1025
     (internal quotation
    marks omitted).
    The appellants first argue that the district court erred in defining the murder
    element of the conspiracy-to-commit-murder offense. As provided in 
    18 U.S.C. § 956
    (a)(1), this offense encompasses a conspiracy to commit “an act that would
    constitute the offense of murder . . . if committed in the . . . jurisdiction of the United
    States.” Under federal law, murder is “the unlawful killing of a human being with
    malice aforethought.” 
    18 U.S.C. § 1111
    (a). In defining this term for the jury, the
    district court relied on language from a relevant Eighth Circuit model jury instruction,
    which states that “‘malice aforethought’ means [1] an intent, at the time of a killing,
    willfully to take the life of a human being, or [2] an intent willfully to act in callous
    and wanton disregard of the consequences to human life.” Model Crim. Jury Instr.
    8th Cir. 6.18.1111A-1 (2014); see also United States v. Johnson, 
    879 F.2d 331
    , 334
    (8th Cir. 1989) (approving a similar instruction). Nevertheless, the appellants claim
    -8-
    that the Government should have been required to prove a specific intent to kill and
    thus argue that the district court erred in including the second portion of the
    definition.
    Even assuming they are correct that “an intent willfully to act in callous and
    wanton disregard” falls short of the requisite mens rea for this offense, we are
    convinced that this error was harmless beyond a reasonable doubt, as “a rational jury
    would have found the defendant[s] guilty” under an instruction requiring a specific
    intent to kill. See Dvorak, 
    617 F.3d at 1025
    . Indeed, there is overwhelming evidence
    in the record showing that Farah, Daud, and Omar each knew the object of the
    conspiracy included intentionally taking lives. Yusuf offered compelling testimony
    that all three appellants understood that they would engage in killing if they reached
    Syria. And Bashir’s recorded conversations capture their intentions in vivid detail.
    Moreover, even were we to believe appellants’ claim that they themselves had no
    desire to kill, all three agreed to join and support a plot aimed at sending young men
    to Syria to fight for a known terrorist organization. They knew that some co-
    conspirators actually reached Syria and were killed on the front lines, and they
    continued until their arrest to aid and encourage others in reaching the battlefield. On
    this record, it is clear beyond a reasonable doubt that the jury would have convicted
    them of the conspiracy even if the district court had adopted an instruction that
    required the Government to prove a specific intent to kill. Thus, we find that any
    error in the instruction was harmless beyond a reasonable doubt.2
    Additionally, Farah and Daud argue that the district court erred in refusing to
    instruct the jury on the affirmative defenses of combatant immunity and defense of
    others. “To be entitled to a jury instruction on a justification defense, a defendant
    2
    Given that we resolve the appellants’ challenge on this basis, we need not
    address their related claims that the instruction’s definition of murder violated their
    due process rights or that the instruction made the conspiracy-to-commit-murder
    offense duplicative of material support for terrorism.
    -9-
    must show an underlying evidentiary foundation as to each element of the defense,
    such that a reasonable person could conclude that the evidence supported the
    defendant’s position.” United States v. Poe, 
    442 F.3d 1101
    , 1104 (8th Cir. 2006)
    (internal quotation marks omitted). “Whether there is sufficient evidence to support
    the submission of an instruction on an affirmative defense is a question of law which
    we review de novo.” 
    Id. at 1103
    . In this case, the district court did not err in
    concluding that there was insufficient evidence to merit either instruction.
    Turning first to defense of others, Farah and Daud argue that they were entitled
    to an instruction on this defense because there was evidence showing that “the
    objective of the conspiracy was to defend others from imminent bodily harm and
    death.” Specifically, they suggest that the conspiracy to go to Syria and fight for ISIL
    was motivated by a desire to prevent the atrocities that the regime of Bashar al-Assad
    was committing against innocent Muslim civilians in Syria. But we have emphasized
    that the defense of another must stem from “immediate danger of unlawful bodily
    harm.” United States v. Oakie, 
    709 F.2d 506
    , 506-07 (8th Cir. 1983) (per curiam)
    (emphasis added); see also Model Crim. Jury Instr. 8th Cir. 9.04. Even assuming that
    Farah and Daud sought to join ISIL out of a desire to protect innocent civilians, they
    never discussed killing in the context of defending individual Syrian civilians who
    faced an immediate and specific threat. Indeed, their purported justification pertained
    only, in the most general terms, to the Syrian civil war and civilian suffering. Thus,
    they failed a show a sufficient evidentiary foundation to warrant this instruction.
    As for combatant immunity, Farah and Daud contend that their proposed
    “instruction was not advanced as an affirmative defense, but in order to clarify the
    government’s burden to prove beyond a reasonable doubt that defendants entered into
    an agreement to kill with malice aforethought.” Although their argument is not
    entirely clear, we understand Farah and Daud to suggest that, given their belief that
    they would be fighting as lawful combatants once they joined ISIL, they could not
    have knowingly agreed to engage in “unlawful” killings. Even under this charitable
    -10-
    reading, their argument fails. While Farah and Daud are correct that a defendant must
    generally know the facts that make his conduct illegal, see, e.g., Elonis v. United
    States, 
    135 S. Ct. 2001
    , 2009 (2015), the lawfulness of a soldier’s belligerency is a
    legal determination, see Ex Parte Quirin, 
    314 U.S. 1
    , 30-31 (1942), and a mistake of
    law is no defense, see Elonis, 
    135 S. Ct. at 2009
     (“This is not to say that a defendant
    must know that his conduct is illegal before he may be found guilty. The familiar
    maxim ‘ignorance of the law is no excuse’ typically holds true.”). Thus, there was
    basis for providing this instruction.
    IV.
    The appellants also claim that the district court committed procedural and
    substantive error in imposing their sentences. In reviewing a challenged sentence, we
    “first ensure that the district court committed no significant procedural error, such
    as . . . failing to consider the § 3553(a) factors . . . or failing to adequately explain the
    chosen sentence.” Gall v. United States, 
    552 U.S. 38
    , 51 (2007). “Assuming that the
    district court’s sentencing decision is procedurally sound, [we] then consider the
    substantive reasonableness of the sentence imposed under an abuse-of-discretion
    standard.” 
    Id.
    The appellants first argue that the district court procedurally erred by failing
    to consider the need to avoid disparities between their sentences and those of their co-
    conspirators who entered guilty pleas. Under § 3553(a)(6), a district court is required
    to consider “the need to avoid unwarranted sentence disparities among defendants
    with similar records who have been found guilty of similar conduct.” Although the
    district court did not expressly address sentencing disparities with the appellants’ co-
    conspirators, each of the appellants thoroughly discussed this issue in their sentencing
    memoranda. We may therefore presume that the district court considered this
    argument. See United States v. Johnson, 
    619 F.3d 910
    , 922 (8th Cir. 2010). In
    -11-
    addition, the court thoroughly analyzed each of the other § 3553(a) factors in its
    statement of reasons for each appellant. Thus, we find no procedural error.
    Finally, the appellants contend that their sentences are substantively
    unreasonable. Where, as here, a district court varies below a properly calculated
    guidelines sentence, “it is nearly inconceivable that the court abused its discretion in
    not varying downward still further.” United States v. Mohamed, 
    757 F.3d 757
    , 761
    (8th Cir. 2014). In attacking the reasonableness of their sentences, Farah, Daud, and
    Omar again emphasize the sentencing disparities with their co-conspirators. But as
    we recently explained, “[t]he statutory direction to avoid unwarranted disparities
    among defendants [in § 3553(a)(6)] refers to national disparities, not differences
    among co-conspirators.” United States v. Pierre, 
    870 F.3d 845
    , 850 (8th Cir. 2017).
    In any event, the appellants were not similarly situated to their co-conspirators, who
    cooperated with the Government and pleaded guilty to lesser charges. See Mohamed,
    757 F.3d at 762 (explaining that defendants are not similarly situated for the purposes
    of § 3553(a)(6) where one defendant accepts responsibility but the others do not).
    “[I]t is not an abuse of discretion for a district court to impose a sentence that results
    in a disparity between co-defendants when there are legitimate distinctions between
    the co-defendants.” Id. at 762 (internal quotation marks omitted). After careful
    consideration, the district court chose to vary downward from the recommended
    sentence of life imprisonment and adequately explained why it granted a lesser
    variance to Omar than to Farah and Daud. Thus, we see no basis for finding these
    sentences unreasonable and conclude that the district court did not abuse its
    discretion.
    V.
    Accordingly, we affirm the denial of Farah’s motion to substitute counsel,
    appellants’ convictions for conspiracy to commit murder abroad, and their resulting
    sentences.
    ______________________________
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