United States v. al Kassar, et al., No. 09-1051 (2d Cir. 2011)
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Defendants appealed their convictions for conspiring to kill U.S. officers, to acquire and export anti-aircraft missiles, and to provide material support to a known terrorist organization. Two defendants were additionally convicted of money laundering and conspiring to kill U.S. citizens. The court held that the United States had federal subject-matter jurisdiction to prosecute defendants; the district court did not err in denying defendants' motion for a hearing on certain issues; because the court concluded that defendants' proffered evidence was inadmissible under Rule 404 and that the district court did not commit manifest error by excluding it under Rule 403, defendants' evidentiary challenge to the exclusion was rejected; defendants' remaining challenges were rejected and their convictions were affirmed under 18 U.S.C. 2332(g); the district court's jury instruction was correct and that 18 U.S.C. 2339B did not violate the Fifth Amendment, notwithstanding that no proof was required that a defendant intended his aid to support the terrorist activity of a terrorist group; and one defendant's insufficiency challenge was rejected. Accordingly, the court affirmed the judgment of the district court.
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09-1051-cr United States v. al Kassar 1 2 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 4 August Term, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Argued: February 7, 2011 Decided: September 21, 2011) Docket Nos. 09-1051-cr(L); 09-1057-cr(Con); 09-3972-cr(Con) - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.- 09-1051-cr MONZER AL KASSAR a/k/a ABU MUNAWAR a/k/a EL TAOUS, LUIS FELIPE MORENO GODOY, TAREQ MOUSA AL GHAZI, Defendants-Appellants. - - - - - - - - - - - - - - - - - - - -x Before: DENNIS JACOBS, Chief Judge, PETER W. HALL, Circuit Judge, SHIRA A. SCHEINDLIN, District Judge.* Appeals by three defendants from their criminal 29 convictions, following jury trials in the United States 30 District Court for the Southern District of New York * The Honorable Shira A. Scheindlin, of the United States District Court for the Southern District of New York, sitting by designation. 1 1 (Rakoff, J.), for conspiring to kill U.S. officers, to 2 acquire and export anti-aircraft missiles, and to provide 3 material support to a known terrorist organization. 4 defendants were additionally convicted of money laundering 5 and conspiring to kill U.S. citizens. 6 appeal that federal subject-matter jurisdiction is lacking, 7 that their due process rights were violated, that 8 exculpatory evidence was improperly excluded, and that the 9 evidence of a conspiracy among them was legally Two Defendants argue on 10 insufficient. 11 acquire and export anti-aircraft missiles, defendants argue 12 that the statute does not criminalize conspiracy, that the 13 jury was improperly instructed on the statute s scienter 14 requirements, and that the defendants conduct falls within 15 the statute s exception for conduct authorized by the U.S. 16 government. 17 knowingly support a terrorist organization, defendants argue 18 that the statute violates due process by not requiring that 19 the support be intended to further specifically criminal 20 activities. 21 As to the conviction for conspiring to As to the conviction for conspiring to Affirmed. 22 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 FOR APPELLANTS: Roger Lee Stavis Gallet Dreyer & Berkey LLP New York, NY (for Monzer al Kassar and Luis Felipe Moreno Godoy) Marc Antony Agnifilo Brafman & Associates New York, NY (for Tareq Mousa al Ghazi) FOR APPELLEE: Brendan R. McGuire (Boyd M. Johnson III, Jesse M. Furman, on brief) On Behalf of Preet Bharara U.S. Attorney s Office, Southern District of New York New York, NY DENNIS JACOBS, Chief Judge: Defendants Monzer al Kassar, Luis Felipe Moreno Godoy, 24 and Tareq Mousa al Ghazi appeal their criminal convictions, 25 entered after jury trials in the United States District 26 Court for the Southern District of New York (Rakoff, J.), 27 for conspiring to kill U.S. officers, to acquire and export 28 anti-aircraft missiles, and to knowingly provide material 29 support to a terrorist organization. 30 were also convicted of conspiring to kill U.S. citizens and 31 of money laundering. 32 federal subject-matter jurisdiction is lacking, that their 33 due process rights were violated, that exculpatory evidence Al Kassar and Godoy Defendants argue on appeal that 3 1 was excluded, and that the evidence of a conspiracy among 2 them was legally insufficient. 3 conspiring to acquire and export anti-aircraft missiles, 4 defendants argue that the statute does not criminalize 5 conspiracy, that the jury was improperly instructed on the 6 statute s scienter requirements, and that the defendants 7 conduct falls within the statute s exception for conduct 8 authorized by the U.S. government. 9 conspiring to knowingly support a terrorist organization, 10 defendants argue that the statute violates due process by 11 not requiring that the support be intended to further 12 specifically criminal activities. 13 As to the conviction for As to the conviction for Affirmed. 14 15 BACKGROUND 16 Since the 1970s, the U.S. government has suspected 17 Monzer al Kassar, a Spanish national and resident, of 18 illegal arms trafficking. 19 F. Supp. 2d 488, 491 (S.D.N.Y. 2008) ( Al Kassar I ). 20 2005, the Drug Enforcement Administration ( DEA ) set up a 21 sting operation to apprehend him for selling arms illegally. United States v. al Kassar, 582 4 In 1 To this end, the DEA sent Samir Houchaimi, a 2 confidential informant, to locate Tareq Mousa al Ghazi, a 3 known associate of al Kassar, and set up a meeting with al 4 Kassar. 5 and won his trust over several months. 6 Ghazi that he was in the weapons trade, asked to meet with 7 al Kassar, and gave al Ghazi a fake end-user certificate1 8 for Nicaragua supplied by the DEA. 9 to arrange a meeting with al Kassar, and al Ghazi agreed. 10 Houchaimi went to Lebanon, where al Ghazi lived, Houchaimi told al Houchaimi asked al Ghazi Al Kassar arrived at the arranged meeting in Beirut 11 holding the end-user certificate Houchaimi had given to al 12 Ghazi. 13 inviting Houchaimi to his mansion in Spain to further 14 discuss the Nicaraguan arms deal. 15 The meeting was fruitful, ending with al Kassar At the meeting in Spain (in February 2007), Houchaimi 16 introduced al Kassar to Carlos and Luis --two undercover 17 DEA agents posing as members of FARC (a left-wing Colombian 18 terrorist organization)--and al Kassar introduced his 19 associate, Luis Felipe Moreno Godoy. 20 Kassar they were interested in buying weapons for FARC s use 1 The DEA agents told al An end-user certificate is an official government document authorizing a sale of particular weapons to a particular end-user. It is required to conduct a legal international weapons sale. 5 1 against the U.S. military in Colombia. 2 a list of weapons they wanted, which included anti-aircraft 3 missiles ( SAMs ). 4 They gave al Kassar Al Kassar agreed to negotiate. Over the next several months, in the presence of Godoy 5 and al Ghazi, al Kassar negotiated an arms deal with the two 6 DEA agents.2 7 intent to use the weapons against Americans and U.S. assets. 8 When al Kassar left the room during a break in negotiations, 9 al Ghazi advised the DEA agents how to negotiate effectively The negotiators discussed at length FARC s 10 with al Kassar. At the end of March, 2007, when the parties 11 had agreed to basic terms (including the sale of SAMs), 12 Godoy took the DEA agents to an Internet café and helped 13 them transfer a down payment ( ¬100,000) to a bank account 14 controlled by al Kassar. 15 The next day (after confirming receipt of the down 16 payment), al Kassar again met with the DEA agents to discuss 17 details. 18 DEA agents on how best to secure the sale. 19 again in the presence of Godoy and al Ghazi--al Kassar gave 20 the DEA agents schematics for the SAMs he was selling and Before the meeting, al Ghazi again counseled the 2 At the meeting-- The negotiations were conducted primarily in Spanish, but al Kassar translated for al Ghazi and Houchaimi. Many of the meetings were secretly recorded by Houchaimi. 6 1 explained how he planned to smuggle the weapons into 2 Colombia through a cargo ship destined for Suriname (with al 3 Kassar, as usual, translating for al Ghazi). 4 In May 2007, al Kassar and Godoy facilitated a meeting 5 between the DEA agents and the captain of the ship that 6 would smuggle the weapons. 7 agents wired another payment ($135,000) to a bank account 8 controlled by al Kassar. 9 visited arms factories in Bulgaria and Romania to secure the 10 11 Before the meeting, the DEA Afterward, al Kassar and Godoy weapons. In June 2007, the DEA agents agreed to meet al Kassar 12 and Godoy in Bucharest to make final payment. Al Kassar 13 stayed in Spain, however, and sent Godoy and al Ghazi to 14 pick up the money. 15 coordination with the DEA, Romanian authorities arrested al 16 Ghazi and Godoy in Bucharest. 17 authorities arrested al Kassar at the Madrid International 18 Airport; he was carrying fake end-user certificates for the 19 FARC weapons and documents confirming final arrangements to 20 ship the weapons from Romania to Suriname. 21 Kassar s mansion yielded documents establishing his and 22 Godoy s participation in other arms deals and confirming Pursuant to valid arrest warrants and in The same day, Spanish 7 A search of al 1 that al Kassar controlled the bank accounts into which the 2 DEA agents had wired money. 3 Godoy and al Ghazi were extradited here from Romania in 4 October 2007. 5 his Miranda rights and admitted to the DEA agents that: 6 he knew al Kassar was selling weapons, including SAMs, to 7 FARC; (2) he knew that FARC was a terrorist organization, 8 which planned to use the weapons to kill Americans; and (3) 9 he facilitated the deal because he was promised a ¬125,000 10 commission. 11 During the flight, al Ghazi agreed to waive (1) from Spain. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 In June 2008, al Kassar was extradited here Once in the United States, the defendants were indicted on four counts: [1] Conspiracy to kill U.S. citizens in violation of 18 U.S.C. § 2332(b). [2] Conspiracy to kill U.S. officers and/or employees in violation of 18 U.S.C. §§ 1114, 1117. [3] Conspiracy to acquire and export SAMs in violation of 18 U.S.C. § 2332g. [4] Conspiracy to provide material support to a known terrorist organization in violation of 18 U.S.C. § 2339B. Al Kassar and Godoy were also indicted on a fifth count: [5] Money laundering in violation of 18 U.S.C. § 1956. 8 1 The district court denied defendants motion to dismiss 2 the indictments for violation of due process. Al Kassar I, 3 582 F. Supp. 2d at 498. 4 their motions (after hearings) to admit classified 5 information related to prior and contemporaneous 6 interactions with Spanish intelligence agents, allegedly for 7 the benefit of the United States. 8 Kassar, 582 F. Supp. 2d 498, 500 (S.D.N.Y. 2008) ( Al Kassar 9 II ). The district court likewise denied United States v. Al The district court concluded that the proffered 10 classified information was irrelevant, needlessly confusing, 11 or inadmissible prior acts evidence. 12 Fed. R. Evid. 402-405. Al Ghazi s trial was severed when he was hospitalized a 13 week before the scheduled trial. Al Kassar and Godoy were 14 convicted by a jury on all five counts. 15 several months later and convicted of conspiring to kill 16 U.S. officials, to acquire and export SAMs, and to provide 17 material support to a known terrorist organization. 18 Ghazi was acquitted of conspiring to kill U.S. citizens. 19 Kassar and Godoy were sentenced in February 2009 to 30 years 20 and 25 years respectively. 21 2009 to 25 years. Al Ghazi was tried Al Al Al Ghazi was sentenced in July 9 1 2 The defendants timely appealed their convictions, but do not contest the sentences. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 DISCUSSION On appeal, the defendants challenge their convictions on the following grounds: [I] The government lacked jurisdiction to prosecute because of an insufficient nexus between their actions and the United States. [II] The government s investigation constituted outrageous conduct in violation of their due process rights. [III] The district court erred in denying their motion to introduce exculpatory classified evidence. [IV] The convictions under 18 U.S.C. § 2332g (acquiring and exporting SAMs) must be overturned because: the statute does not criminalize conspiracy; the jury was improperly instructed as to scienter; the defendants actions fall under the statute s exception for authorized conduct; and there was insufficient evidence of conspiracy. [V] The convictions under 18 U.S.C. § 2339B (aiding a known terrorist organization) must be overturned because: the statute requires that the aid be intended to support the illegal activities of the terrorist organization, or, in the alternative, the statute violates the Fifth Amendment s Due Process Clause by not requiring such intent. Al Ghazi challenges his conviction on a sixth ground: 10 1 2 3 4 5 6 7 [VI] There was insufficient evidence he conspired with al Kassar or Godoy to kill U.S. officers and materially aid a known terrorist organization. The Sections in this opinion correspond to these arguments. 8 9 10 I The defendants argue that federal subject-matter 11 jurisdiction is lacking because: First, there is an 12 insufficient nexus between their conduct and the United 13 States for U.S. law to apply to them; second, any nexus that 14 does exist was created by the DEA agents, not the 15 defendants. 16 17 A 18 In a challenge to subject-matter jurisdiction, we 19 review a district court s factual findings for clear error 20 and its legal conclusions de novo. 21 619, 623-24 (2d Cir. 2003). 22 Congress has the authority to enforce its laws beyond the 23 territorial boundaries of the United States. 24 States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (quoting 25 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). APWU v. Potter, 343 F.3d [A]s a general proposition, 11 United The 1 presumption that ordinary acts of Congress do not apply 2 extraterritorially, see Sale v. Haitian Ctrs. Council, Inc., 3 509 U.S. 155, 173 (1993), does not apply to criminal 4 statutes. 5 see also Yousef, 327 F.3d at 86. 6 criminal statute is silent, Congressional intent to apply 7 the statute extraterritorially must be inferred from the 8 nature of the offense. 9 United States v. Bowman, 260 U.S. 94, 98 (1922); When the text of a Bowman, 260 U.S. at 98. Four of the five counts on which the defendants were 10 convicted--conspiracy to kill U.S. nationals, conspiracy to 11 acquire and export SAMs, conspiracy to aid a known terrorist 12 organization, and money laundering--contain explicit 13 provisions applying them extraterritorially. 14 § 2332(b); id. § 2332g(b); id. § 2339B(d); id. § 1956(b)(2). 15 Although the conspiracy to kill U.S. officers or employees 16 count, id. §§ 1114, 1117, contains no explicit 17 extraterritoriality provision, the nature of the offense-- 18 protecting U.S. personnel from harm when acting in their 19 official capacity--implies an intent that it apply outside 20 of the United States. 21 employees, and a significant number of those employees 22 perform their duties outside U.S. territory. See 18 U.S.C. The provision protects U.S. 12 District 1 courts in our Circuit have applied it so, as have courts in 2 other circuits. 3 F.2d 1312, 1317 (7th Cir. 1984) (applying §§ 1114, 1117 4 extraterritorially); United States v. Bin Laden, 92 F. Supp. 5 2d 189, 202 (S.D.N.Y. 2000) (applying § 1114 6 extraterritorially). 7 and 1117 apply extraterritorially. 8 9 See, e.g., United States v. Benitez, 741 We join them and conclude that §§ 1114 When Congress so intends, we apply a statute extraterritorially as long as doing so does not violate due 10 process. Yousef, 327 F.3d at 86. 11 extraterritorially a federal criminal statute to a defendant 12 consistently with due process, there must be a sufficient 13 nexus between the defendant and the United States, so that 14 such application would not be arbitrary or fundamentally 15 unfair. 16 F.2d 245, 248-49 (9th Cir. 1990)). 17 entirely abroad, a jurisdictional nexus exists when the aim 18 of that activity is to cause harm inside the United States 19 or to U.S. citizens or interests. 20 Peterson, 812 F.2d 486, 494 (9th Cir. 1987) ( Protective 21 jurisdiction is proper if the activity threatens the In order to apply Id. at 111 (quoting United States v. Davis, 905 13 For non-citizens acting See United States v. 1 security or government functions of the United States. ); 2 see also Yousef, 327 F.3d at 112; Davis, 905 F.2d at 249. 3 The defendants conspiracy was to sell arms to FARC 4 with the understanding that they would be used to kill 5 Americans and destroy U.S. property; the aim therefore was 6 to harm U.S. citizens and interests and to threaten the 7 security of the United States. 8 this Court has never before found a sufficient 9 jurisdictional nexus based on a sting operation taking place The defendants observe that 10 entirely outside the United States and involving solely 11 foreign citizens. 12 undercover investigation is irrelevant to the sufficiency of 13 the jurisdictional nexus. 14 exposes criminal activity that targets U.S. citizens or 15 interests or threatens the security or government functions 16 of the United States, a sufficient jurisdictional nexus 17 exists notwithstanding that the investigation took place 18 abroad and focused only on foreign persons. 19 But the geographical location of an If an undercover operation The defendants argue that, even if these U.S. laws 20 apply to them in theory, in practice such application is 21 fundamentally unfair because their conduct was so far 22 removed from any U.S. interest or person. 14 True, the 1 defendants conduct never came close to harming any U.S. 2 person or property, but this is irrelevant for conspiracy 3 offenses, which often result in no palpable harm. 4 Jurisdictional nexus is determined by the aims of the 5 conspiracy, not by its effects. 6 Finally, the defendants argue that, nexus aside, U.S. 7 jurisdiction is fundamentally unfair because they lacked 8 fair warning that their conduct exposed them to U.S. 9 criminal prosecution. We disagree. The idea of fair 10 warning is that no man shall be held criminally responsible 11 for conduct which he could not reasonably understand to be 12 proscribed. 13 (1964) (internal quotation marks omitted). 14 does not require that the defendants understand that they 15 could be subject to criminal prosecution in the United 16 States so long as they would reasonably understand that 17 their conduct was criminal and would subject them to 18 prosecution somewhere. 19 a trap laid for the unwary. 20 (i.e., without legitimate end-user certificates) to a known 21 terrorist organization with the understanding that those 22 weapons would be used to kill U.S. citizens and destroy U.S. Bourie v. City of Columbia, 378 U.S. 347, 351 Fair warning The defendants were not ensnared by Supplying weapons illegally 15 1 property is self-evidently criminal; and their deliberate 2 attempts to avoid detection suggested the defendants so 3 understood. 4 5 6 B In the alternative, the defendants argue that any 7 jurisdictional nexus was created entirely by acts of the DEA 8 agents who manufactured jurisdiction over the defendants 9 in violation of due process. 10 [T]he manufactured jurisdiction concept is properly 11 understood not as an independent defense, but as a 12 collection of three distinct defense theories: 13 outrageous government conduct in violation of due process; 14 (2) entrapment; and (3) a failure by the prosecution to 15 prove an essential element of the crime. 16 Wallace, 85 F.3d 1063, 1065-66 (2d Cir. 1996). 17 defendants raise the outrageous conduct defense as an 18 independent basis for overturning their convictions, and it 19 is discussed in Section II. 20 and unproven-element theories. (1) United States v. The Here, we reject the entrapment 21 16 1 2 1 Since each defendant s entrapment argument was rejected 3 by a jury, no defendant can prevail on appeal unless he was 4 entrapped as a matter of law, i.e., he has proven that: (1) 5 the government originated the criminal design, (2) the 6 government suggested the design to the defendant and induced 7 him to adopt it, and (3) the defendant had no predisposition 8 to engage in the criminal design prior to the government s 9 inducement. Jacobson v. United States, 503 U.S. 540, 548-49 10 (1992); United States v. Rahman, 189 F.3d 88, 131 n.16 (2d 11 Cir. 1999). 12 It is uncontested that the government originated the 13 illegal arms deal and induced the defendants participation 14 with money and political ideology. 15 said as a matter of law that the defendants lacked a 16 predisposition to conspire to illegally sell arms to known 17 terrorists. 18 smuggle arms suggests experience in the trade; and their 19 positive reaction to the idea that the arms would be used to 20 kill Americans and harm U.S. interests suggests a 21 predisposition to support and participate in that goal. 22 reasonable jury thus could have concluded that the However, it cannot be The defendants knowledge of how to procure and 17 A 1 defendants were predisposed to commit the crimes for which 2 they were convicted. 3 especially with respect to al Ghazi, but it was a call for 4 the jury to make. This may have been a close call, 5 6 7 2 The unproved-element theory of manufactured 8 jurisdiction is that if the government unilaterally supplies 9 an essential element of a crime, the government has in 10 effect failed to prove that element as to the defendant. 11 See generally United States v. Archer, 486 F.2d 670 (2d Cir. 12 1973). 13 undercover federal agents sought to transform a state crime 14 into a federal offense by having the defendant participate 15 in a call which, without his knowing, was interstate. 16 at 672-74. 17 See, e.g., Wallace, 85 F.3d at 1065; United States v. Keats, 18 937 F.2d 58, 64-65 (2d Cir. 1991). 19 government initiates an essential element of a crime, 20 jurisdiction is not manufactured if the defendant then 21 takes voluntary actions that implicate the [government- 22 initiated] element. In Archer, the case that originated this theory, Id. In the years since Archer, we have limited it. Now, even if the Wallace, 85 F.3d at 1066. 18 1 Here, the DEA agents initiated an arms transaction with 2 the defendants by posing as terrorists and requesting SAMs 3 (and other weapons) from the defendants for use in killing 4 Americans. 5 conspiring among themselves to acquire and sell these 6 weapons to what they believed was a terrorist organization 7 with knowledge that the weapons would be used to kill 8 Americans. 9 engage in criminal conduct does not violate the Constitution 10 and does not constitute a manufacture of jurisdiction--or 11 of any of the elements required to obtain a conviction for 12 that criminal conduct. 13 F.3d 82, 91-92 (2d Cir. 1997). 14 manufacture jurisdiction because every element of the crimes 15 of conviction was established by evidence of voluntary 16 action by the defendants. 17 But the defendants responded to this request by Creating an opportunity for a defendant to See United States v. Schmidt, 105 The government did not The defendants contend that the DEA agents created the 18 jurisdictional nexus with the United States by injecting the 19 notion that the weapons were going to FARC for use against 20 Americans. 21 defendants, this does not make the nexus artificial or 22 invalid. While it is true the DEA agents lied to the Sting operations, by nature, involve lies told to 19 1 the target. 2 sell SAMs to what they believed was a terrorist organization 3 for use against Americans, and that is what they conspired 4 to do. 5 irrelevant. (It is to be hoped that all such schemes are 6 foredoomed one way or another.) 7 8 The defendants were convicted of conspiring to That their conspiracy was never going to succeed is For these reasons, we conclude that the United States has jurisdiction to prosecute the defendants. 9 10 II 11 The defendants argue that the DEA agents pervasive 12 involvement in the weapons deal amounted to outrageous 13 government conduct violative of their rights to due process 14 under the Fifth Amendment. 15 district court erred by not holding a hearing on this issue. They also argue that the 16 17 18 A Whether to dismiss an indictment for outrageous 19 government conduct is a legal question, which we review de 20 novo. 21 1991). 22 become so excessive that it violates due process and United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. Government involvement in a crime may in theory 20 1 requires the dismissal of charges against a defendant even 2 if the defendant was not entrapped. 3 131; see also United States v. Russell, 411 U.S. 423, 431-32 4 (1973) ( [W]e may some day be presented with a situation in 5 which the conduct of law enforcement agents is so outrageous 6 that due process principles would absolutely bar the 7 government from invoking judicial processes to obtain a 8 conviction. ). 9 484, 490 (1976) (plurality) ( If the police engage in Rahman, 189 F.3d at But see Hampton v. United States, 425 U.S. 10 illegal activity in concert with a defendant beyond the 11 scope of their duties the remedy lies, not in freeing the 12 equally culpable defendant, but in prosecuting the police 13 under the applicable provisions of state or federal law. ). 14 Unlike entrapment, which focuses on the defendant s 15 predisposition, outrageous government conduct focuses on the 16 conduct of the government agents. 17 692 F.2d 823, 836 (2d Cir. 1982). 18 United States v. Myers, To establish a due process violation on this ground, a 19 defendant must show that the government s conduct is so 20 outrageous that common notions of fairness and decency would 21 be offended were judicial processes invoked to obtain a 22 conviction. Schmidt, 105 F.3d at 91; see also Rahman, 189 21 1 F.3d at 131 (government action must shock the conscience to 2 sustain a due process violation); United States v. LaPorta, 3 46 F.3d 152, 160 (2d Cir. 1994) (government action must 4 reach a demonstrable level of outrageousness before it 5 could bar conviction (internal quotation marks omitted)). 6 This is a very heavy burden in light of our well- 7 established deference to the Government s choice of 8 investigatory methods. 9 Generally, to be outrageous, the government s involvement Rahman, 189 F.3d at 131. 10 in a crime must involve either coercion or a violation of 11 the defendant s person. 12 F.2d at 837. 13 government created the opportunity for the offense, even if 14 the government s ploy is elaborate and the engagement with 15 the defendant is extensive. 16 692 F.3d at 837. 17 inducement, and coaching in how to commit the crime do not 18 constitute outrageous conduct. 19 Schmidt, 105 F.3d at 91; Myers, 692 It does not suffice to show that the Schmidt, 105 F.3d at 91; Myers, Likewise, feigned friendship, cash Myers, 692 F.2d at 837-39. The defendants allege no coercion, intimidation, or 20 physical force by the DEA agents. 21 the following facts amount to outrageous government conduct: 22 (1) no conspiracy existed among the defendants prior to the 22 Instead, they argue that 1 government s request for weapons, (2) the government lured 2 the defendants into the illegal arms deal by first offering 3 an arms deal that was legal, and by befriending al Ghazi and 4 winning his trust over a long period, (3) al Ghazi exhibited 5 some hesitation and apprehension about the illegal weapons 6 deal, (4) the government involved the defendants in a wide 7 variety of illegal activities, and (5) the government 8 induced the crimes using political rhetoric and money. 9 None of these actions, either separately or in 10 combination, rises to the legal standard of outrageous. 11 First, the absence of a conspiracy prior to government 12 involvement shows only that the government created the 13 opportunity for illegal conduct. 14 154-55, 160-61 (finding no due process violation where 15 defendant was convicted of arson for fire he set only after 16 an undercover agent asked him to); Schmidt, 105 F.3d at 92 17 (creation of opportunity to commit a crime is not outrageous 18 government conduct); Myers, 692 F.2d at 837 (same). 19 neither the lawful arms proposal nor the winning of trust 20 renders the government s involvement coercive or outrageous; 21 these are commonplace and often necessary tactics for 22 infiltrating criminal enterprises. 23 See LaPorta, 46 F.3d at Third, transient Second, 1 hesitation provides no basis for an excessive involvement 2 claim unless the government coerces the defendant, and no 3 coercion was applied here. 4 Fourth, the large number of laws violated by the arms deal 5 is irrelevant to whether the government s involvement was 6 excessive; if anything, it further supports the inference 7 that the defendants had notice that their conduct was 8 illegal. 9 not outrageous conduct. Myers, 692 F.2d at 837-39. Fifth, financial and ideological inducements are See id. at 837-38 (even extremely 10 large financial inducements do not rise to the level of due 11 process violations). 12 While the sting operation in this case was elaborate 13 and prolonged, there was no coercion or physical force, and 14 nothing done was outrageous or a shock to the conscience. 15 16 17 B The defendants argue that the district court improperly 18 denied them a pre-trial hearing on their jurisdictional and 19 due process defenses. 20 proposition that in the context of such defenses, [m]ost 21 often, conducting a hearing is the preferred course of 22 action in cases where disputed factual issues exist. They cite Cuervelo for the 24 949 1 F.2d at 567. However, [n]othing in Cuervelo requires a 2 district court to conduct a hearing every time a defendant 3 alleges outrageous government misconduct. 4 at 160. 5 dispute related to the alleged government misconduct, no 6 hearing is necessary. 7 district court did not err in denying the defendants motion 8 for a hearing on these issues. LaPorta, 46 F.3d Where, as here, there are no material facts in Id. We therefore conclude that the 9 10 11 III The defendants challenge their convictions on the 12 further ground that the district court improperly refused to 13 admit classified evidence relating to past and 14 contemporaneous contact between the defendants and Spanish 15 intelligence officials, allegedly for the benefit of the 16 United States. 17 ruled that the evidence of past contacts was irrelevant and 18 confusing under Federal Rules of Evidence 401 and 403, and 19 amounted to inadmissible prior acts evidence under Federal 20 Rules of Evidence 404 and 405. 21 2d at 500. 22 subsequent proffer of evidence relating to contemporaneous In a written opinion, the district court Al Kassar II, 582 F. Supp. The district court excluded the defendants 25 1 contacts with Spanish intelligence on similar grounds, 2 reasoning that its potential for confusion vastly outweighed 3 any probative value. 4 rulings denied them their constitutional right to present a 5 complete defense, and also constituted legal error under the 6 Federal Rules of Evidence. The defendants argue that these We reject both contentions. 7 8 9 A Criminal defendants are entitled by the Constitution 10 to a meaningful opportunity to present a complete defense. 11 Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003); see also 12 Clark v. Arizona, 548 U.S. 735, 769 (2006) (holding that the 13 right to present a complete defense is a matter of simple 14 due process ); Taylor v. Illinois, 484 U.S. 400, 408 (1988) 15 (holding that criminal defendants have the right to put 16 before a jury evidence that might influence the 17 determination of guilt (internal citations and quotation 18 marks omitted)). 19 reasonable restrictions. 20 federal rules of evidence may restrict evidence to assure 21 both fairness and reliability in the ascertainment of guilt At the same time, this right is subject to Wade, 333 F.3d at 58. 26 State and 1 and innocence. 2 U.S. 284, 302 (1973)). 3 Id. (quoting Chambers v. Mississippi, 410 The defendants argue that the denial of their requests 4 to offer the classified evidence prohibited them from 5 arguing, by way of a defense, that they had no intention of 6 completing the illegal arms deal. 7 presented this exact defense at their trials. 8 excluded evidence might have marginally reinforced their 9 defense; but because it was neither compelling nor integral 10 to their defense theory, its exclusion does not amount to a 11 constitutional violation. However, the defendants True, the 12 13 B 14 Even if the exclusion of their proffered evidence did 15 not amount to a constitutional violation, defendants argue 16 that it was legal error. 17 challenge to the district court s evidentiary ruling, we 18 review it for abuse of discretion, reversing only if we find 19 manifest error. 20 88 (2d Cir. 2010). 21 deference because the district court is in the best 22 position to do the balancing mandated by Rule 403. Construing their argument as a United States v. Miller, 626 F.3d 682, 687Rule 403 determinations command especial 27 United 1 States v. Stewart, 590 F.3d 93, 133 (2d Cir. 2009) (internal 2 quotation marks omitted). 3 conscientiously balanced the proffered evidence s probative 4 value with the risk for prejudice, we will reverse its 5 conclusion only if it is arbitrary or irrational. 6 States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006). 7 manifest error does not require reversal if the error was 8 harmless, Miller, 626 F.3d at 687-88, that is, if we can 9 conclude with fair assurance that the evidence would not So long as the trial court 10 have substantially influenced the jury. 11 Jackson, 301 F.3d 59, 65 (2d Cir. 2002). 12 United Even reversible error. 13 United States v. We see no The vast majority of the classified evidence proffered 14 by the defendants does not relate to the particular 15 conspiracies for which they were convicted. 16 consists of prior good acts performed by the defendants 17 allegedly for the good of the United States; thus, it 18 constitutes prior act evidence used to prove the character 19 of a person in order to show action in conformity 20 therewith. 21 is inadmissible under Federal Rule of Evidence 404(b) for Fed. R. Evid. 404(b). 28 Instead, it Such prior act evidence 1 that purpose, id., as the district court properly concluded. 2 Al Kassar II, 582 F. Supp. 2d at 500. 3 Nor is the evidence admissible as proof of habit under 4 Rule 406, as the district court also properly concluded. 5 Id. at 501. 6 person s regular practice of meeting a particular kind of 7 situation with a specific type of conduct, such as the habit 8 of going down a particular stairway two stairs at a time. 9 Fed. R. Evid. 406 (1972 Proposed Rules). A habit is semi-automatic --it involves a The defendants 10 prior acts are not habitual in that way (or any other way), 11 nor would the few isolated prior acts proffered by the 12 defendants constitute a habit even if they were. 13 Football League v. Nat. Football League, 842 F.2d 1335, 1373 14 (2d Cir. 1988) (three or four prior acts over a long period 15 are not sufficient to establish a habit). 16 U.S. The district court also excluded the proffered evidence 17 under Rule 403, finding that any minimal probative value of 18 the prior acts was outweighed by the likelihood of jury 19 confusion. 20 not manifest error. 21 mischaracterization of the proffered evidence on appeal, its 22 probative value was properly discounted, as most of it Al Kassar II, 582 F. Supp. 2d at 500. This was Leaving aside the defendants 29 1 related to wholly different events that took place many 2 years earlier and would require a trial within a trial 3 before the jury could determine whether there was any 4 meaningful analogy at all. 5 rightly concerned that, to the extent any of the evidence 6 could be construed to relate to the charged conspiracies, 7 the jury would find it extremely confusing, if not 8 incomprehensible. 9 Id.3 And the trial judge was Because we conclude that the defendants proffered 10 evidence is inadmissible under Rule 404 and that the 11 district court did not commit manifest error by excluding it 12 under Rule 403, we reject the defendants evidentiary 13 challenge to the exclusion. 14 15 IV 16 The defendants challenge their convictions for 17 conspiring to acquire and export SAMs in violation of 18 18 U.S.C. § 2332g on four grounds: [A] their conduct was not 3 The defendants argue on appeal that, in a case charging conspiracy to kill United States nationals, officers, and employees, the district court s evidentiary rulings prevented [the defendants] from countering [the Government s] one-sided, biased version of the facts. This argument was not made to the district court. We express no view whether, had defendants made this argument, the evidence would have been admissible on this theory. 30 1 illegal under § 2332g because the statute does not 2 criminalize conspiracy; [B] their conduct was not illegal 3 under § 2332g because it was authorized by an agency of the 4 United States; [C] the statute s scienter requirement was 5 improperly omitted from the jury instruction; and [D] the 6 evidence was legally insufficient to convict them. 7 8 9 A The defendants contend that 18 U.S.C. § 2332g does not 10 criminalize conspiracy. 11 statutory interpretation. 12 Inc., 607 F.3d 24, 27 (2d Cir. 2010). 13 We review de novo questions of L-3 Commc ns Corp. v. OSI Sys., The relevant wording of § 2332g states: (a)Unlawful Conduct. . . . it shall be unlawful for any person to knowingly produce, construct, otherwise acquire, transfer directly or indirectly, receive, possess, import, export, or use, or possess and threaten to use [SAMs]. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 18 U.S.C. § 2332g(a), (c) (emphasis added). 30 of subsection (c) penalizes conspiring to acquire and export . . . (c) Criminal Penalties. . . . Any person who violates, or attempts or conspires to violate, subsection (a) shall be fined not more than $2,000,000 and shall be sentenced to a term of imprisonment not less than 25 years or to imprisonment for life. 31 The plain text 1 SAMs. The defendants argue, however, that the conspiracy 2 language does not appear under the unlawful conduct 3 heading, so that the statute does not make conspiring 4 unlawful. 5 section of the statute from the rest of the act, and it 6 renders the conspiracy language in the criminal penalties 7 section not just superfluous but self-refuting; in this way 8 the defendants reading violates two canons of 9 interpretation: This reading isolates the unlawful conduct we read statutes as a whole, with no 10 section interpreted in isolation from the context of the 11 whole Act, United States v. Kozeny, 541 F.3d 166, 171 (2d 12 Cir. 2008) (internal quotation marks omitted); and we 13 interpret statutes to give effect, if possible, to every 14 clause and word, Duncan v. Walker, 533 U.S. 167, 174 15 (2001), and to avoid statutory interpretations that render 16 provisions superfluous. 17 278, 283 (2d Cir. 1994). 18 United States v. Anderson, 15 F.3d More broadly, we interpret statutes to give effect to 19 congressional purpose. Johnson v. United States, 529 U.S. 20 694, 710 n.10 (2000). 21 and Terrorism Prevention Act of 2004 states that the purpose 22 of what is now § 2332g is to combat the potential use of The text of the Intelligence Reform 32 1 weapons that have the ability to cause widespread harm to 2 United States persons and the United States economy . . . 3 and to threaten or harm the national security or foreign 4 relations of the United States. 5 VI, § 6902, 118 Stat. 3638, 3769-70 (2004) (emphasis added). 6 The defendants interpretation of the statute would 7 undermine this purpose; in contrast, our interpretation-- 8 that the statute criminalizes conspiracies to acquire SAMs-- 9 furthers this purpose of combating the potential use of Pub. L. No. 108-458, Title 10 these weapons. We conclude that 18 U.S.C. § 2332g 11 criminalizes conspiracies to acquire and export SAMs. 12 13 14 B The defendants argue that their conspiracy to acquire 15 and export SAMs constituted action authorized by the United 16 States under 18 U.S.C. § 2332g(a)(3) because it was done 17 under the guidance and inspiration of the DEA agents. 18 disagree. 19 We Again, we review de novo questions of statutory 20 interpretation. L-3 Commc ns Corp., 607 F.3d at 27. The 21 defendants rely on the exclusion of government conduct from 22 the general prohibition of 18 U.S.C. § 2332g: 33 1 2 3 4 5 6 7 8 9 10 18 U.S.C. § 2332g(a)(3). 11 they didn t know it) the DEA authorized their conduct when 12 its agents asked the defendants to sell them SAMs. 13 defendants concede, this interpretation would effectively 14 foreclose sting operations as an enforcement technique; but 15 they argue that Congress uses an express sting provision 16 in statutes if it intends that sting operations be allowed. 17 See, e.g., 18 U.S.C. § 1956(a)(1) (criminalizing money 18 laundering whenever the defendant believed the money 19 involved resulted from unlawful activity even when the money 20 was secretly lawfully procured through a sting operation). 21 Th[e prohibition on acquiring and exporting SAMs] does not apply with respect to . . . conduct by or under the authority of the United States or any department or agency thereof or of a State or any department or agency thereof; or conduct pursuant to the terms of a contract with the United States or any department or agency thereof or with a State or any department or agency thereof. The defendants argue that (though As the Section 2332g (as we held, supra) criminalizes 22 conspiracies to acquire and export SAMs. We decline to read 23 the statute simultaneously to ban sub silentio one of the 24 few effective ways for the government to combat such 25 conspiracies. 26 264 (2d Cir. 2000) (holding that we interpret statutes to 27 prevent absurd results). See United States v. Dauray, 215 F.3d 257, 34 1 Nor can it be said that a sting operation authorizes 2 the criminal conduct it exposes. The fact that undercover 3 government agents support an illegal act as part of a sting 4 operation does not authorize that act or otherwise make it 5 legal. 6 laundering statute is inapt; money laundering is a unique 7 crime because it requires not only that the defendant 8 believe the money involved is tainted by prior illegal 9 activity, but also that the money in fact be so tainted. The defendants analogy to the federal money It 10 is this second requirement that necessitates the statute s 11 explicit sting exception: 12 because a sting operation secretly authorizes a defendant s 13 transactions involving illegally obtained money (it 14 doesn t), but because the sting operation secretly uses 15 money that was legally obtained. 16 share this second requirement--it criminalizes unauthorized 17 conduct related to all SAMs, not just those tainted by some 18 prior criminal transaction--so there is no need for an 19 explicit sting exception. 20 categorically criminalize the unauthorized acquisition and 21 sale of a particular object (regardless of whether that 22 object is tainted by prior illegal activity) have been read The exception is required not 18 U.S.C. § 2332g does not Similar statutes, which 35 1 to allow for detection by sting operations notwithstanding 2 the absence of an explicit sting provision. 3 United States v. Wallace, 532 F.3d 126, 127 (2d Cir. 2008) 4 (affirming conviction for sale of cocaine to confidential 5 informant under the Controlled Substance Act despite its 6 exception for sales authorized by law and its lack of a 7 sting provision). 8 See, e.g., We conclude that the acquisition and export of SAMs (or 9 a conspiracy with that aim) at the behest of a government 10 agent acting undercover does not constitute conduct by or 11 under the authority of the United States or any department 12 or agency thereof and is therefore criminalized by 18 13 U.S.C. § 2332g. 14 15 C 16 The defendants argue that the jury charge on the 17 § 2332g conspiracy count erroneously omitted the scienter 18 requirement for the underlying offense of acquiring and 19 exporting SAMs. 20 We disagree. A jury instruction is erroneous if it [misleads] the 21 jury as to the correct legal standard or [does] not 22 adequately inform the jury on the law. 36 United States v. 1 Goldstein, 442 F.3d 777, 781 (2d Cir. 2006). The defendants 2 objected to the § 2332g jury instruction before the district 3 court, but on different grounds from those they now advance 4 on appeal, and the district court accommodated the 5 defendants first objection. 6 present objection was not made before the district court, we 7 review the instruction for plain error, reversing only where 8 (1) the instruction was erroneous, (2) the error was plain 9 (i.e., obvious), (3) the error prejudiced the defendants Because the defendants 10 substantial rights, and (4) that prejudice affected the 11 fairness, integrity, or public reputation of the judicial 12 proceeding. 13 Cir. 2002); see also United States v. Johnson, 529 F.3d 493, 14 501-02 (2d Cir. 2008) (reserving plain error only for those 15 circumstances in which a miscarriage of justice would 16 otherwise result (internal quotation marks omitted)). 17 erroneous instruction is prejudicial unless it is clear 18 beyond a reasonable doubt that a rational jury would have 19 found the defendant guilty absent the error. 20 442 F.3d at 781. 21 22 United States v. Joyner, 313 F.3d 40, 45 (2d An Goldstein, A conspiracy conviction under § 2332g requires two distinct findings as to scienter. 37 First, the defendant must 1 intend to agree to participate in the conspiracy (i.e., it 2 is not enough that the defendant participated unwittingly or 3 joined under the mistaken impression that the conspiracy 4 involved some other, legal activity). 5 Morgan, 385 F.3d 196, 206 (2d Cir. 2004) ( Conspiracy is a 6 specific intent crime: 7 must be some evidence from which it can reasonably be 8 inferred that the person charged with conspiracy knew of the 9 scheme alleged in the indictment and knowingly joined and 10 participated in it. (internal quotation marks omitted)). 11 Second (in this case), the aim of the conspiracy must be to 12 knowingly produce, . . . acquire, transfer, . . . receive, 13 possess, import, export, . . . use, or possess and threaten 14 to use [SAMs] (i.e., the conspirators cannot just happen to 15 acquire an SAM while intending to acquire some other weapon 16 or object). 17 also Ingram v. United States, 360 U.S. 672, 678 (1959) 18 ( Conspiracy to commit a particular substantive offense 19 cannot exist without at least the degree of criminal intent 20 necessary for the substantive offense itself. ) (internal 21 quotation marks and alterations omitted). See United States v. To be guilty of conspiracy, there 18 U.S.C. § 2332g(a)(1) (emphasis added); see 38 To be accurate, a 1 jury instruction on a § 2332g conspiracy must convey both of 2 these scienter requirements. 3 The district judge gave the following jury instruction: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Count Three charges both defendants with conspiring to acquire and export antiaircraft missiles. In order to sustain its burden of proof with respect to this charge as to a given defendant, the government must prove beyond a reasonable doubt each of the two elements: First, the existence of the charged conspiracy, as further described below; and second, that the defendant you are considering intentionally joined and participated in the conspiracy during the applicable time period in order to further its unlawful purpose. 28 . . . The conspiracy alleged in Count Three, however, is materially different from the conspiracies alleged in Counts One and Two. Specifically, in order to satisfy the first element of Count Three, the government must prove beyond a reasonable doubt that the purpose of the conspiracy was to acquire and export explosive or incendiary rockets or missiles guided by a system enabling the rockets or missiles to seek aircraft. In reviewing a jury instruction, we examine not only 29 the specific language that the defendant challenges but also 30 the instructions as a whole to see if the entire charge 31 delivered a correct interpretation of the law. 32 States v. Bala, 236 F.3d 87, 94-95 (2d Cir. 2000) (internal 33 quotation marks omitted). 34 demand that required factual findings be stated in any United A defendant has no right to 39 1 particular number of elements, and when an offense has 2 ramified elements, a jury instruction need not separately 3 delineate each element so long as when viewed as a whole, 4 [it] adequately instruct[s] the jury as to all factual 5 findings required to support conviction. 6 Quinones, 511 F.3d 289, 315 (2d Cir. 2007); see also United 7 States v. Conway, 73 F.3d 975, 980 (2d Cir. 1995) ( [The] 8 trial judge retains extensive discretion in tailoring jury 9 instructions, provided that they correctly state the law and 10 11 United States v. fairly and adequately cover the issues presented. ). The district court s jury instruction here included 12 both scienter requirements, though they were not delineated 13 as independent elements. 14 required the jury to find that the defendant intentionally 15 joined and participated in the conspiracy. 16 second, the instruction required the jury to find that the 17 purpose of the conspiracy was to acquire and export [SAMs]. 18 This adequately conveyed the knowledge requirement for the 19 underlying substantive offense; if the jury found that the 20 defendants intentionally joined a conspiracy that had as a 21 purpose to acquire and export SAMs, then the jury also found As to the first, the instruction 40 As to the 1 that the defendants knew the purpose of that conspiracy was 2 to acquire and export SAMs. 3 Viewed as a whole, the jury instruction adequately 4 instructed the jury as to all factual findings required to 5 support conviction. 6 the instruction did not mislead the jury and was not 7 erroneous, let alone plainly so. Quinones, 511 F.3d at 315. Therefore, 8 9 D 10 Finally, the defendants argue that the evidence 11 presented by the prosecution was legally insufficient to 12 establish that they conspired with each other to acquire and 13 export SAMs. 14 We review de novo challenges to criminal convictions 15 based on insufficiency of evidence; however, in assessing 16 the evidence, we apply the same deferential standard as the 17 district court, viewing the evidence in the light most 18 favorable to the government, drawing all reasonable 19 inferences in the government s favor, and resolving all 20 questions of credibility in the government s favor. 21 States v. Abu-Jihaad, 630 F.3d 102, 135 (2d Cir. 2010). 41 United 1 To overturn a conviction for insufficiency of the 2 evidence, a defendant must establish that, after construing 3 the evidence in the light most favorable to the prosecution, 4 there is an element of the crime of conviction that no 5 rational jury could have found beyond a reasonable doubt. 6 United States v. Hassan, 578 F.3d 108, 122 (2d Cir. 2008). 7 Knowledge of a conspiracy or proximity to it is by itself 8 insufficient to prove that a defendant joined the 9 conspiracy. United States v. Desimone, 119 F.3d 217, 223 10 (2d Cir. 1997). 11 defendant s involvement in a conspiracy through 12 circumstantial evidence, such as the defendant s presence at 13 critical moments of the conspiracy, lack of surprise when 14 discussing the conspiracy with others, possession of items 15 important to the conspiracy, and making of false exculpatory 16 statements or otherwise exhibiting consciousness of guilt. 17 Id.; In re Terrorist Bombings of U.S. Embassies in East 18 Africa, 552 F.3d 93, 113 (2d Cir. 2008); United States v. 19 Rodriguez, 392 F.3d 539, 544 (2d Cir. 2004). 20 Still, the government may prove a The defendants argue that the district court 21 erroneously allowed the prosecution to rely on evidence that 22 they engaged in other arms transactions with the informants 42 1 to overcome the lack of evidence that they conspired with 2 each other to acquire and export SAMs. 3 conclude that there was sufficient evidence that the 4 defendants conspired with each other to acquire and export 5 SAMs. 6 We disagree and A conspiracy violation of § 2332g requires three 7 elements: (1) the defendants intended to agree (2) with each 8 other, not just with undercover agents, (3) to knowingly 9 acquire and export SAMs. See Desimone, 119 F.3d at 223 10 ( Because a conspiracy requires the participation of at 11 least two culpable co-conspirators, it follows that a person 12 who enters into such a conspiratorial agreement while acting 13 as an agent of the government, either directly or as a 14 confidential informant, lacks the criminal intent necessary 15 to render him a bona fide co-conspirator. (brackets, 16 internal citations, and internal quotation marks omitted)). 17 At trial, the government presented evidence of the 18 following: (1) Al Kassar negotiated a sale of SAMs to the 19 DEA agents in the presence of al Ghazi and Godoy, 20 translating for al Ghazi as needed; (2) al Ghazi confessed 21 to working with al Kassar and Godoy to sell SAMs to the DEA 22 agents in order to make a profit; (3) in the presence of 43 1 Godoy and al Ghazi, al Kassar provided the DEA with 2 schematics of SAMs and explained how the missiles could be 3 used to shoot down American helicopters; (4) Godoy and al 4 Kassar facilitated a meeting between the DEA agents and the 5 captain of the cargo ship that was to smuggle SAMs into 6 Suriname; (5) Godoy forwarded emails to al Kassar from the 7 DEA agents, which discussed al Kassar s agreement to sell 8 SAMs to the DEA agents; (6) al Kassar and Godoy traveled to 9 factories that produced SAMs after meeting with the DEA 10 agents; (7) al Ghazi advised the DEA agents on how to 11 successfully negotiate the weapons deal with al Kassar, with 12 knowledge that the deal included SAMs; (8) Godoy and al 13 Ghazi traveled to Romania to pick up the final payment for a 14 sale of weapons that included SAMs. 15 Taken in the light most favorable to the prosecution 16 and drawing all reasonable inferences and credibility 17 determinations in its favor, we conclude that this evidence 18 was legally sufficient for a rational jury to conclude that 19 each of the three defendants intentionally conspired with 20 each other to knowingly acquire and export SAMs. 21 22 Having rejected all of the defendants challenges, we affirm their convictions under 18 U.S.C. § 2332g. 44 1 V 2 The defendants challenge their convictions under 3 18 U.S.C. § 2339B (prohibiting material support for a known 4 terrorist organization), arguing in the alternative that the 5 district court misinterpreted the statute s scienter 6 requirements, or the statute is unconstitutional under the 7 Fifth Amendment. 8 interpretation and constitutionality. 9 Pettus, 303 F.3d 480, 483 (2d Cir. 2002). 10 We review de novo questions of a statute s United States v. In relevant part, § 2339B states: 11 12 13 14 15 16 17 18 19 20 21 22 Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both . . . . To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . . that the organization has engaged or engages in terrorist activity . . . or that the organization has engaged or engages in terrorism. 18 U.S.C. § 2339B(a)(1). 23 express scienter requirements: 24 and that the defendant know the organization he is aiding is 25 a terrorist organization or engages in acts of terrorism. 26 Id. 27 intend that his aid support the terrorist aims of the 28 organization. The statute thus imposes two that the aid be intentional The statute is silent as to whether the defendant must 45 1 The defendants argue that this specific intent 2 requirement should be read into the statute and that the 3 district court committed reversible error in failing to so 4 instruct the jury. 5 Humanitarian Law Project, 130 S. Ct. 2705 (2010) ( Law 6 Project ). 7 require the government to show that a defendant who 8 supported a terrorist organization (which might do other 9 things) intended to aid its specifically terrorist aims: This argument is foreclosed by Holder v. As Law Project interpreted § 2339B, it does not 10 Congress plainly spoke to the necessary mental state for a 11 violation of § 2339B, and it chose knowledge about the 12 organization s connection to terrorism, not specific intent 13 to further the organization s terrorist activity. 14 2717. 15 read this scienter requirement into the statute. 16 Id. at We therefore reject the defendants request that we The defendants argue, in the alternative, that absent 17 this scienter requirement the statute violates the Fifth 18 Amendment s Due Process Clause in two ways: 19 criminalizing mere membership, and [ii] by criminalizing a 20 status insufficiently connected to illegal activity to 21 satisfy the personal guilt requirement of due process. 22 See Scales v. United States, 367 U.S. 203, 224-25 (1961) (a 46 [i] by 1 law criminalizing mere membership in an organization, even 2 one that advocates illegal activity, violates Due Process); 3 id. ( [G]uilt is personal, and when the imposition of 4 punishment on a status or on conduct can only be justified 5 by reference to the relationship of that status or conduct 6 to other concededly criminal activity . . . that 7 relationship must be sufficiently substantial to satisfy the 8 . . . personal guilt requirement of due process.). 9 Law Project, which upheld § 2339B against the claim 10 that it unconstitutionally criminalized mere membership, 11 also forecloses these arguments.4 12 2339B] does not penalize mere association with a foreign 13 terrorist organization. . . . 14 act of giving material support. . . . 15 scrutinizing penalties on simple association or assembly are 16 therefore inapposite. ). 17 defendants argument that the statute s lack of a specific 18 intent requirement amounts to the criminalization of mere 19 membership. 130 S. Ct. at 2730 ( [§ What [it] prohibits is the Our decisions We therefore reject the 4 Law Project construed this as a First Amendment, not Fifth Amendment, challenge, but its reasoning applies equally to challenges under either Amendment. 47 1 Law Project also concluded that the aid prohibited by 2 § 2339B (whether accompanied by specific intent to further 3 the organization s terrorist activity or not) is intimately 4 associated with criminal activity. 5 and the Executive, however, have concluded [that] . . . the 6 designated foreign terrorist organizations are so tainted by 7 their criminal conduct that any contribution to such an 8 organization facilitates that conduct. ) (internal quotation 9 marks omitted). Id. at 2729 ( Congress The personal guilt requirement of the Due 10 Process Clause is therefore satisfied by the knowing supply 11 of material aid to a terrorist organization. 12 For these reasons, we conclude that the district 13 court s jury instruction was correct and that 18 U.S.C. § 14 2339B does not violate the Fifth Amendment, notwithstanding 15 that no proof is required that a defendant intend his aid to 16 support the terrorist activity of a terrorist group. 17 18 19 VI Al Ghazi challenges the legal sufficiency of the 20 evidence that he conspired with al Kassar and Godoy to kill 21 U.S. officers and to materially support a known terrorist 22 organization. 18 U.S.C. §§ 1114, 1117, 2339B. 48 The standard 1 of review for this challenge is set out above in Section 2 IV.D. 3 Under that standard, we reject al Ghazi s challenge. At trial, the government presented evidence of the 4 following: (1) al Ghazi told the DEA agents he knew al 5 Kassar was negotiating a weapons deal with FARC; (2) al 6 Ghazi told the DEA agents he knew FARC was a terrorist 7 organization; (3) al Ghazi told the DEA agents he knew the 8 weapons deal included SAMs; (4) al Ghazi told the DEA agents 9 he knew FARC intended to use the weapons they were buying to 10 kill U.S. military personnel; (5) al Ghazi told the DEA 11 agents he facilitated the weapons deal to get a commission; 12 (6) al Ghazi was present during key negotiations in the 13 weapons deal, with al Kassar translating for him when 14 Spanish was spoken; (7) al Ghazi stayed at al Kassar s 15 mansion during the negotiations with no apparent purpose 16 other than to participate in them; (8) al Ghazi advised the 17 DEA agents how to successfully complete the weapons deal 18 with al Kassar; (9) al Kassar told the DEA agents that al 19 Ghazi was instrumental to his decision to negotiate with 20 them; and (10) al Ghazi went to Romania for the purpose of 21 receiving the final payment for the weapons that al Kassar 22 sold to the DEA agents, which included SAMs. 49 Taken in the 1 light most favorable to the prosecution and construing all 2 inferences and credibility determinations in its favor, this 3 evidence is sufficient for a reasonable jury to conclude 4 that al Ghazi intentionally agreed with al Kassar and Godoy 5 to acquire SAMs and other weapons, and to sell them to an 6 organization he knew engaged in terrorism and which he knew 7 would use those weapons to kill U.S. personnel. 8 We therefore reject al Ghazi s insufficiency challenge. 9 10 11 12 CONCLUSION For the reasons discussed above, the judgments of the district court are AFFIRMED. 50
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