United States v. Farhane
634 F.3d 127, 84 Fed. R. Serv. 794, 2011 U.S. App. LEXIS 2201 (2011)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
18 U.S.C. § 2339B, which criminalizes providing material support or resources to foreign terrorist organizations, is not unconstitutionally vague as applied to a defendant who volunteers himself as "personnel" to work under a terrorist organization's direction; providing oneself as such personnel, coupled with an oath of allegiance and provision of contact information, constitutes a "substantial step" towards providing material support.
Facts:
- In 2001, the Federal Bureau of Investigation (FBI) began investigating Tarik Shah, Rafiq Sabir’s longtime friend, for potential money transfers to insurgents in Afghanistan.
- An FBI confidential informant, known as Saeed, developed a relationship with Shah, during which Shah spoke openly about his commitment to jihad and his wish to provide martial arts training to mujahideen, often identifying Sabir as his "partner."
- On March 3, 2004, Saeed introduced Shah to Ali Soufan, an undercover FBI agent posing as a recruiter for al Qaeda, to whom Shah offered to travel abroad to train al Qaeda combatants and proposed that he and Sabir, "an emergency room doctor," join al Qaeda as "a pair."
- Shah subsequently reported to Saeed that he had spoken in person with Sabir about this plan.
- For most of the time between May 2004 and May 2005, Sabir worked at a Saudi military hospital in Riyadh.
- On May 20, 2005, during a visit to New York, Sabir met with Saeed and Agent Soufan at Shah’s Bronx apartment, where Sabir expressed interest in meeting mujahideen in Saudi Arabia and agreed to provide medical assistance to any who were wounded.
- To permit mujahideen needing medical assistance to contact him in Riyadh, Sabir provided Soufan with his personal and work telephone numbers, which he then encoded using a code provided by Soufan.
- Sabir and Shah then participated in bayat, swearing an oath of allegiance to al Qaeda, promising to serve as a "soldier of Islam" and to protect "brothers on the path of Jihad" and "the path of al Qaeda," and swore obedience to "Sheikh Osama" (Osama bin Laden) and "Doctor Ayman Zawahiri."
Procedural Posture:
- On May 28, 2005, Rafiq Sabir and co-defendant Tarik Shah were arrested.
- Sabir and Shah were subsequently indicted in the U.S. District Court for the Southern District of New York on charges of conspiring to provide and providing or attempting to provide material support or resources to al Qaeda.
- On April 4, 2007, co-defendant Tarik Shah pleaded guilty to Count One of the indictment.
- Sabir's trial commenced on April 24, 2007, in the U.S. District Court for the Southern District of New York.
- On May 21, 2007, a jury found Sabir guilty on both the conspiratorial and substantive charges.
- On November 28, 2007, the district court sentenced Sabir principally to 300 months' incarceration.
- Sabir appealed his judgment of conviction to the United States Court of Appeals for the Second Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
1. Is 18 U.S.C. § 2339B's prohibition on providing material support, including "personnel" and "expert advice," and its "medicine" exception, unconstitutionally vague as applied to a physician offering on-call medical aid to a designated foreign terrorist organization? 2. Do a defendant's oath of allegiance to a foreign terrorist organization, agreement to be an on-call physician for wounded members, and provision of contact information constitute a "substantial step" sufficient to support a conviction for attempting to provide material support in the form of "personnel"?
Opinions:
Majority - Reena Raggi
No, 18 U.S.C. § 2339B is not unconstitutionally vague as applied to Rafiq Sabir's conduct. Yes, a defendant's oath of allegiance to a foreign terrorist organization, along with an offer to work as an on-call physician for wounded members and provision of contact information, constitutes a "substantial step" sufficient for attempted material support in the form of "personnel." The court reviewed Sabir's vagueness challenge as applied to his conduct, noting that facial challenges are disfavored outside the First Amendment context. It found the statutory terms "training," "personnel," and "expert advice and assistance" were not inherently vague, especially given Congress's narrowing definitions and the knowledge element for a § 2339B conviction. Sabir's offer to serve as an on-call doctor for al Qaeda fell squarely within the core prohibition of "personnel" and "expert assistance," as he pledged allegiance to al Qaeda and offered to work under its direction, not merely as an independent physician. The statutory "medicine" exception in § 2339A(b)(1) refers to a "substance or preparation," not the "art or science of medicine" or medical services; this interpretation is supported by context, common usage, and legislative history. Regarding the attempt conviction, the court affirmed that the evidence was sufficient to prove Sabir took a "substantial step" towards providing material support in the form of personnel. Sabir physically "produced" himself as the personnel by attending the meeting, swearing an oath of allegiance to al Qaeda, promising to be on call as a doctor in Saudi Arabia, and providing contact numbers for al Qaeda members to reach him for treatment. This conduct was "planned to culminate" in his supplying himself as personnel, fulfilling the "substantial step" requirement, which expands attempt liability beyond common law's "dangerous proximity" to include conduct "strongly corroborative of the firmness of the defendant’s criminal intent." The court explicitly distinguished the provision of "personnel" (volunteering oneself to work under the organization's control) from the actual subsequent provision of "services" by that personnel, asserting that the former can be completed earlier. The court also rejected Batson challenges to jury selection, other evidentiary challenges, and arguments regarding alleged juror misconduct and summation issues.
Dissenting - Dearie
No, the evidence is not legally sufficient to sustain the attempt conviction. Chief Judge Dearie disagreed that Sabir's actions constituted a "substantial step" for criminal attempt. He argued that the substantive crime (providing medical support) was too remote in time, place, and objective. Mere agreement and providing a phone number, even with an oath of allegiance, do not constitute a substantial step, which requires more than "mere preparation" and conduct progressing "sufficiently to minimize the risk of an unfair conviction." He cited United States v. Delvecchio, where a verbal agreement and exchange of contact information for a drug deal were found insufficient for an attempt conviction. Sabir's need to return to Riyadh, secure a passport, and overcome mobility restrictions meant he was far from being in a position to actually provide services. He criticized the majority for expanding the definition of "personnel" to include those who "do nothing beyond pledge[] to work under the direction of the organization," arguing that prior case law required a higher "level of engagement, activity or compliance." He also raised concerns that transforming offers to provide services into attempted provision of personnel could sanction multiple punishments for a single offense (double jeopardy) and blur the line between radical beliefs and criminal action, potentially infringing First Amendment rights by punishing for "thoughts alone."
Concurring - Reena Raggi
The district court did not err in excluding Sabir’s October 5, 2004, statements, as they did not satisfy Fed.R.Evid. 803(3). Judge Raggi concurred on the harmlessness of excluding Sabir's October 2004 statements but added that they were inadmissible under Fed.R.Evid. 803(3) (state of mind exception) because they lacked "contemporaneity" and "relevance" to his state of mind on May 20, 2005, the critical date of the charged offenses. The rule requires a "then existing state of mind," and while continuity can extend this, the vague, self-serving nature of the statements and the conclusive evidence of a contrary state of mind on May 20, 2005 (his oath to al Qaeda), negated any inference of continuity. The statements primarily recounted past events ("facts remembered"), which are explicitly excluded by Rule 803(3).
Analysis:
This case significantly clarifies the application of 18 U.S.C. § 2339B, particularly the definition of "material support" in the form of "personnel" and the "substantial step" requirement for attempt in terrorism cases. It reinforces that individuals can provide "personnel" by offering themselves to work under a terrorist organization's direction and control, even if they have not yet rendered specific services. The distinction between providing personnel and providing services by that personnel broadens the scope of what constitutes an attempt, allowing for earlier intervention in preventative counter-terrorism efforts. The interpretation of the "medicine" exception as limited to substances, not medical services or treatment, also provides crucial guidance for medical professionals and others who might interact with designated terrorist organizations.
