United States v. Defreitas, No. 11-425 (2d Cir. 2013)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Second Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Second Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Defendants were found guilty of conspiracy to carry out acts of terrorism against JFK International Airport. On appeal, defendant challenged the district court's various evidentiary rulings and the substantive reasonableness of their sentence. The court concluded that it saw no basis to fault the district court's empanelment of an anonymous jury in this case; the district court did not err in admitting a terrorism expert's testimony; the district court did not err in admitting certain photographs; the district court's decision not to declassify the remaining classified portions of the October 2006 Meeting Memo report and the identity of its author was not an abuse of discretion; the district court did not err in excluding certain tape recordings; and defendants' sentences were substantively reasonable. The court reviewed the remainder of defendants' arguments and found them to be without merit. The court also disposed of the appeal of a co-defendant and the motions relevant to that appeal. Accordingly, the court affirmed the district court's judgment and dismissed the co-defendant's appeal.
Download PDF
11-425-cr(L) United States v. Defreitas 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2012 4 5 6 (Argued: March 11, 2013 Decided: May 31, 2013) Docket Nos. 11-425-cr(L), 11-429-cr(CON), 11-985-cr(CON) -----------------------------------------------------x 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 UNITED STATES OF AMERICA, 22 B e f o r e : 23 Appellee, -- v. ABDUL KADIR, ABDEL NUR, RUSSELL DEFREITAS a/k/a MOHAMMED, Defendants-Appellants, KAREEM IBRAHIM a/k/a AMIR KAREEM, Defendant. -----------------------------------------------------x WALKER, SACK, and WESLEY, Circuit Judges. Defendants-Appellants Abdul Kadir and Russell Defreitas appeal 24 from the 2011 judgments of conviction and sentences of the United 25 States District Court for the Eastern District of New York 26 (Irizarry, Judge). 27 found guilty of conspiracy to carry out acts of terrorism against 28 John F. Kennedy International Airport. 29 sentenced them to life in prison. 30 in the district court s trial rulings or in the sentences imposed. 31 AFFIRMED. After a jury trial, Defendants-Appellants were The district court then We hold that there was no error 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 MARSHALL L. MILLER (Jo Ann M. Navickas, Berit W. Berger, Zainab Ahmad on the brief), Assistant United States Attorneys, of counsel to Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee. DARRELL B. FIELDS, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for DefendantAppellant Russell Defreitas. ARZA FELDMAN, Feldman and Feldman, Uniondale, NY, for DefendantAppellant Abdul Kadir. DANIEL NOBEL, Law Office of Daniel Nobel, New York, NY, for DefendantAppellant Abdel Nur. JOHN M. WALKER, JR., Circuit Judge: Defendants-Appellants Abdul Kadir and Russell Defreitas appeal 24 from the 2011 judgments of conviction and sentences of the United 25 States District Court for the Eastern District of New York 26 (Irizarry, Judge). 27 found guilty of conspiracy to carry out acts of terrorism against 28 John F. Kennedy International Airport. 29 address various evidentiary rulings made during the trial of 30 Russell Defreitas and Abdul Kadir (collectively, defendants ) as 31 well as the reasonableness of the district court s sentences. 32 also dispose of the appeal of co-defendant Abdel Nur and the 33 motions relevant to that appeal. After a jury trial, Defendants-Appellants were 2 In these appeals, we We 1 2 3 4 BACKGROUND We assume the parties familiarity with the underlying facts of this case and recite only those details relevant to this appeal. The conspiracy to blow up John F. Kennedy International 5 Airport ( JFK Airport ) began in 2005 or 2006. 6 Francis, a confidential informant for the FBI, met with Defreitas 7 and was later recruited into the conspiracy. 8 recording device during many of his interactions with the 9 conspirators, and the recordings of these conversations provided In 2006, Steven Francis wore a 10 much of the evidence at trial. 11 operative indictment included as defendants and co-conspirators 12 Nur, Kadir, and Kareem Ibrahim. 13 In addition to Defreitas, the Francis and Defreitas conducted surveillance of JFK Airport 14 four times in January 2007 and videotaped the bombing targets, 15 including fuel tanks and pipelines that, according to Defreitas, 16 would destroy the whole of Kennedy and part of Queens when they 17 exploded. 18 presented evidence that Nur was brought into the conspiracy at 19 least in part to help them arrange a meeting with Yasin Abu Bakr, 20 the leader of a militant Islamic group called Jamaat Al-Muslimeen 21 ( JAM ) located in Trinidad. 22 connect them with Adnan Shukrijumah, an al Qaeda operative known 23 for his bomb-making abilities. Defreitas App. at 831 (Recording Tr.). The government The conspirators wanted Abu Bakr to 3 1 In February 2007, Defreitas and Francis met Kadir in Guyana. 2 Kadir expressed interest in the plot and urged Francis and 3 Defreitas to refer to the attack using code words to avoid 4 detection. 5 conspiracy in order to present the plot to his contacts in Iran. 6 Between February and May 2007, the conspirators met and discussed 7 their plans by telephone and in person in Guyana and Trinidad. 8 one telephone conversation, Defreitas twice described the planned 9 attack as worse than the World Trade Center, referring to the 10 In late May 2007, Ibrahim was brought into the September 11, 2001 attacks. 11 In Id. at 940, 948 (Recording Tr.). Kadir, Defreitas, Ibrahim, and Nur were arrested in early June 12 2007. 13 admitted to his leadership role in the plot. 14 Defreitas, Kadir, Nur, and Ibrahim were charged by complaint with 15 conspiracy to attack a public transportation system, in violation 16 of 18 U.S.C. § 2332f(a)(2), (b)(1)(E), (b)(2)(A), and (c); 17 conspiracy to destroy a building by fire or explosive, in violation 18 of 18 U.S.C. § 844(n); conspiracy to attack aircraft and aircraft 19 materials, in violation of 18 U.S.C. § 32(a)(8); and conspiracy to 20 attack a mass transportation facility, in violation of 18 U.S.C. 21 § 1992(a)(8) and (10), (c)(1), and (c)(2). 22 were also charged with surveillance of a mass transportation 23 facility, in violation of 18 U.S.C. § 1992(a)(8), (c)(1), (c)(2), 24 and 18 U.S.C. § 2. After being informed of his Miranda rights, Defreitas On the same day, Defreitas and Kadir On June 28, 2007, a grand jury indicted the 4 1 defendants on the above charges, 2 to destroy international airport facilities, in violation of 18 3 U.S.C. §§ 37(a), 37(b)(1), and 37(b)(2). 4 as well as a charge of conspiracy Prior to trial, the district court severed the case of Ibrahim 5 from the other defendants. 6 pleaded guilty to the lesser charge of providing material support 7 to terrorists and thereafter was sentenced to 180 months 8 imprisonment. 9 Just before the start of trial, Nur Following a trial in July 2010, a jury convicted Defreitas on 10 all six counts, and Kadir on all but the surveillance count. 11 separate sentencing proceedings, the district court sentenced each 12 defendant to life imprisonment. 13 At DISCUSSION 14 Defreitas and Kadir argue on appeal that the district court 15 made various errors during trial and imposed sentences that were 16 unreasonable. 17 arguments. 18 Anders v. California, 386 U.S. 738 (1967), and the government has 19 moved to dismiss Nur s appeal. 20 1. Defreitas and Kadir 21 a. Anonymous Jury 22 Before trial, the government moved to empanel an anonymous Nur has also appealed, but he has advanced no His counsel has filed a motion to withdraw pursuant to 23 jury on three grounds: (1) the serious and violent nature of the 24 crimes charged; (2) the intensity of the international media 5 1 coverage of the trial; and (3) threats to the judicial system 2 itself, including alleged threats by Defreitas against his own 3 attorney and potential trial witnesses. Defreitas objected, arguing 4 that an anonymous jury was inappropriate because he could not have 5 carried out the plot and his co-conspirators were all outside the 6 United States. 7 The district court granted the government s motion, finding 8 that the evidence of threats against witnesses, the seriousness of 9 the allegations, and the extensive media coverage of the trial all 10 supported the government s motion. 11 carefully employed mechanisms designed to ensure a fair jury, 12 including an extensive juror questionnaire, a hearing to permit the 13 government and the defendants to strike jurors for cause, two weeks 14 of additional questioning, and a full opportunity to exercise 15 peremptory challenges. 16 The district court also If a district court has taken reasonable precautions to 17 protect a defendant s fundamental rights, we review its decision to 18 empanel an anonymous jury for abuse of discretion. United States v. 19 Thai, 29 F.3d 785, 801 (2d Cir. 1994). 20 for and when properly used, anonymous juries do not infringe a 21 defendant s constitutional rights. 22 F.3d 79, 88 (2d Cir. 2012) (quotation marks omitted). 23 court may order the empaneling of an anonymous jury upon (a) 24 concluding that there is strong reason to believe the jury needs 6 [W]hen genuinely called United States v. Pica, 692 A district 1 protection, and (b) taking reasonable precautions to minimize any 2 prejudicial effects on the defendant and to ensure that his 3 fundamental rights are protected. 4 Id. (quotation marks omitted). If a district court determines that an anonymous jury is 5 appropriate, the court must take reasonable precautions to 6 minimize any prejudicial effects on the defendant and to ensure 7 protection of his fundamental rights. 8 can be done by giving the jurors a plausible and nonprejudicial 9 reason for not disclosing their identities and the court s Thai, 29 F.3d at 801. This 10 conduct of a voir dire designed to uncover bias. 11 district court specified in the questionnaire that the reason for 12 the anonymous jury was that, given the media interest in the case, 13 anonymity would protect the jurors rights of privacy and assist 14 them in discharging [their] responsibility as jurors 15 independently, fairly and impartially. 16 (Jury Instructions). 17 Id. Here the Defreitas App. at 287-88 We see no basis to fault the district court s empanelment of 18 an anonymous jury in this case. 19 were charged with serious crimes of terrorism. 20 up oil pipelines and jet fuel tanks at JFK Airport had the 21 potential to kill hundreds or thousands of people. 22 court reasonably concluded that the jurors would be fearful if 23 their identities were revealed to these defendants. 24 expressed in an earlier case, that the reasonable likelihood that Defreitas and his co-defendants 7 Their plot to blow The district Our view, 1 the pervasive issue of terrorism would raise in the jurors minds a 2 fear for their individual safety holds here and supports the 3 district court s decision. 4 125 (2d Cir. 2009). 5 media coverage of the case, an additional factor we have found 6 significant in considering the decision to empanel an anonymous 7 jury. 8 1994). 9 United States v. Stewart, 590 F.3d 93, This ruling is buttressed by the extensive See United States v. Wong, 40 F.3d 1347, 1377 (2d Cir. The district court also relied on separate reports by two 10 jailhouse informants that Defreitas had threatened to harm 11 potential witnesses. 12 that the district court should not have relied on their testimony 13 without conducting an evidentiary hearing. 14 court has discretion to determine whether or not an evidentiary 15 hearing is needed on the government s allegations concerning a 16 defendant s interference with the case, United States v. Aulicino, 17 44 F.3d 1102, 1116 (2d Cir. 1995), and because there were 18 sufficient independent grounds for empaneling an anonymous jury, we 19 need not address this point. 20 anonymous jury was neither an abuse of discretion nor unfairly 21 prejudicial is strengthened by the record of appropriate measures 22 the district court took to ensure the jury s impartiality, which 23 was never seriously challenged. Defreitas disputed their accounts and argues Because [t]he district Our confidence that the use of an 24 8 1 b. Admission of Matthew Levitt s Expert Testimony 2 Before trial, the government moved in limine for the admission 3 of terrorism expert Matthew Levitt s testimony to describe al Qaeda 4 and Hezbollah and their activities in South America and to define 5 various terms related to terrorism. 6 Defreitas, 07-CR-543(DLI)(SMG), 2011 WL 317964, at *4 (E.D.N.Y. 7 Jan. 31, 2011). 8 because [t]he fact that the defendants wanted to present their 9 plot to organizations and operatives with a well-established See United States v. The government asserted that it was relevant 10 history of participating in international terrorist activities 11 demonstrates the seriousness of their intent to have their plot 12 succeed. 13 Levitt s testimony on the basis that the mention of terrorist 14 organizations would be more prejudicial than probative and thus 15 should be excluded under Federal Rule of Evidence 403. 16 Id. As relevant on appeal, the defendants opposed The district court granted the government s motion, reasoning 17 that aside from supporting the government s allegation, the adverse 18 effect was unclear. 19 objection from the defendants. 20 academic, devoid of vivid imagery that might excite the jury. 21 e.g., Kadir App. at 192 (Levitt Direct Testimony). 22 Levitt testified at trial without further Levitt s testimony was dry and See, A district court s decision to admit expert testimony is 23 reviewed for abuse of discretion. 24 F.3d 123, 132 (2d Cir. 2008) (per curiam). United States v. Massino, 546 9 Federal Rule of 1 Evidence 403 provides that the district court may exclude relevant 2 evidence if its probative value is substantially outweighed by a 3 danger of . . . unfair prejudice, confusing the issues, [or] 4 misleading the jury, among other concerns not relevant here. 5 Provided the district court has conscientiously balanced the 6 proffered evidence s probative value with the risk for prejudice, 7 its conclusion will be disturbed only if it is arbitrary or 8 irrational. 9 Cir. 2008) (quotation marks omitted). United States v. Al-Moayad, 545 F.3d 139, 159-60 (2d To avoid acting 10 arbitrarily, the district court must make a conscientious 11 assessment of whether unfair prejudice substantially outweighs 12 probative value. Id. at 160 (quotation marks omitted). 13 Admitting Levitt s testimony was not an abuse of discretion. 14 As the district court noted, Levitt s testimony was probative of 15 the intent element of the charged conspiracies because the 16 government s allegation is that defendants intended to obtain 17 support from [al Qaeda and Hezbollah], and/or identified with their 18 goals. 19 to exclude this testimony because it was detrimental to their case, 20 but [e]vidence is [unduly] prejudicial only when it tends to have 21 some adverse effect upon a defendant beyond tending to prove the 22 fact or issue that justified its admission into evidence. 23 States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980) (emphasis 24 added). Defreitas, 2011 WL 317964, at *8. The defendants wanted United It was not error for the district court to allow testimony 10 1 about these groups because it supported the government s 2 allegations against the defendants and was not unfairly 3 prejudicial. 4 c. Kadir Photographs 5 As part of its case against Kadir, the government introduced 6 three photographs of Kadir posing with multiple machine guns. 7 During trial, Kadir filed a motion in limine to exclude these 8 photos, as well as photos depicting Kadir s children with guns, on 9 the grounds that the photos were irrelevant, that he had not been 10 charged with possession of a firearm, and that the photos 11 constituted inadmissible character evidence. 12 on the basis of United States v. Khalil, 214 F.3d 111 (2d Cir. 13 2000), that the photos were admissible to rebut the defense s 14 portrayal of Kadir as a peaceful, religious teacher seeking only to 15 raise funds to build a mosque.1 16 statement, Kadir s counsel described Kadir as 17 18 19 20 21 22 23 24 The government argued Specifically, during his opening a man who lives in the country of Guyana, was well-respected, 9 children, 24 grandchildren, working guy. . . . He s a Muslim Shiite. He goes to Iran. . . . And Kadir had a dream . . . to build a mosque, a Shiite mosque, in Guyana, and there s nothing wrong with that[.] Gov t App. at 181-83 (Trial Tr.). 1 In Khalil, we affirmed the district court s admission of photos of defendant Abu Mezer wearing garb that is associated with violent militants, and assuming a posture of martyrdom . . . [as] relevant to rebut the defense portrayals of Abu Mezer as having no destructive objective and posing no real threat. 214 F.3d at 122. 11 1 After hearing argument, the district court admitted the photos 2 of Kadir, but not the photos of his children, noting that the 3 admitted photos were 4 5 6 7 8 9 10 11 12 Kadir App. at 236-38 (Trial Tr.). 13 Khalil was not identical in part because Kadir, unlike Mezer in 14 Khalil, had not been charged with weapons possession. 15 photographs were introduced to the jury, the district court gave a 16 limiting instruction, noting [t]his evidence may be considered by 17 you only to the extent it bears upon Defendant Kadir s knowledge, 18 intent or motive to commit the acts charged in the indictment. 19 Id. at 248 (Trial Tr.). 20 defense, Kadir himself later referred to all of the photos, 21 including those excluded earlier by the district court. relevant to rebut [portrayals] by the defense in this case of Mr. Kadir as having no destructive objective and posing no real threat to the safety of human beings in general. . . . These photographs go towards rebutting that in the way that was permitted, in the court s view, in the Khalil case. 22 The district court noted that When the It is noteworthy that, as part of his The district court s admission of the Kadir photographs is 23 reviewed for abuse of discretion. 24 Cos., 397 F.3d 120, 124 (2d Cir. 2005). 25 photos were impermissible character evidence under Federal Rule of 26 Evidence 404 is undermined by his gamesmanship, most notably his 27 introduction of all of the photos as part of his defense.2 2 See Marcic v. Reinauer Transp. Kadir s argument that the Kadir s attorney stated that the purpose of the motion in limine 12 1 In determining whether the district court properly admitted 2 the photos as evidence of motive, opportunity, or intent, we 3 consider whether: (1) [the evidence] was offered for a proper 4 purpose; (2) it was relevant to a disputed trial issue; (3) its 5 probative value is substantially outweighed by its possible 6 prejudice; and (4) the trial court administered an appropriate 7 limiting instruction. 8 (2d Cir. 2003). 9 were offered (1) to show that Kadir s intent was not confined to United States v. Edwards, 342 F.3d 168, 176 The photos satisfy all four requirements: they 10 peaceful fundraising for a future mosque; which (2) was a disputed 11 trial issue; moreover, (3) the photos probative value, in showing 12 intent, was not substantially outweighed by the prejudice caused 13 Kadir; and (4) the trial court issued an appropriate limiting 14 instruction to the jury more than once. 15 abuse its discretion in admitting the photographs. The district court did not 16 d. Declassification of October 2006 Meeting Memo 17 In October 2006, case agents met in Barbados to discuss the 18 ongoing investigation and development of the plot. 19 were provided with a partially declassified report of that meeting 20 during discovery and at trial moved unsuccessfully to have the rest The defendants had been to control when the pictures were coming in, to which the district court responded that it had never, never, never in 31 years of practice heard that a party could argue to affect the timing of the introduction of evidence. Gov t App. at 341, 342-43 (Trial Tr.). 13 1 declassified and turned over to them. 2 the district court s denial of their motion was error. 3 They argue on appeal that At the Barbados meeting, there were at least three individuals 4 present, including two case agents, Robert Addonizio and Michael 5 Hanratty. 6 the meeting. 7 classified, authored the challenged report about the meeting (the 8 October 2006 report ). 9 declassified the parts of the report that stated that U.S. Louis Napoli, Francis s primary handler, did not attend The third participant, whose identity remains During discovery, the government 10 Government officers would reach out to Francis and task him to 11 increase pressure on the plotters . . . to move ahead, and that 12 after Defreitas returned to the United States U.S. Government 13 officers plan[ned] to mount a full court press on Defreitas with an 14 eye towards building a case of material support to terrorism. 15 Defreitas App. at 344 (October 2006 Report). 16 Urging complete declassification of the report and its 17 author s identity at trial, Defreitas argued that the document at 18 least raises the possibility and the likelihood that there is a 19 witness out there who has direct evidence of government pressure. 20 Id. at 413-14, 421 (Trial Tr.). 21 that because of the classified issues, Mr. Defreitas s ability to 22 present his defense is compromised. 23 24 Counsel for Defreitas later argued Id. at 423 (Trial Tr.). In denying Defreitas s motion to have the document declassified, the district court ruled that Defreitas could elicit 14 1 testimony on the structure of the investigation through cross- 2 examination of the government s witnesses. 3 Francis testified at trial, and Hanratty was available to testify 4 but was not called by either side. Addonizio, Napoli, and 5 We review an evidentiary ruling such as this for abuse of 6 discretion and will reverse only if an erroneous ruling affected a 7 party s substantial rights. 8 a party is entitled to a new trial if the district court committed 9 errors that were a clear abuse of discretion and clearly Marcic, 397 F.3d at 124. In general, 10 prejudicial to the trial s outcome, when measured by assessing 11 the error in light of the record as a whole. 12 omitted). Id. (quotation marks 13 The district court s decision not to declassify the remaining 14 classified portions of the October 2006 report and the identity of 15 its author was not an abuse of discretion. 16 show what the defense could gain through the report s 17 declassification that was not otherwise available by cross- 18 examining the government s witnesses at trial. 19 district court noted, the fact that neither defendant [was] 20 seeking the entrapment defense diminishe[d] the importance of the 21 document and therefore ma[de] it less relevant. 22 432-33 (Trial Tr.). 23 orders given to Francis, or the overall structure of the 24 investigation could have been elicited through Francis himself as Defreitas has failed to Moreover, as the Defreitas App. at Any information about pressures on Francis, 15 1 well as through the other government investigators. 2 court s ruling was not error, much less reversible error. The district 3 e. Exclusion of Kadir Tape Recordings 4 During Kadir s cross-examination of Francis, Kadir tried to 5 introduce portions of a recording made by Francis during which a 6 student of Kadir s makes statements such as: we are not with al 7 Qaeda. 8 with killing innocent people. 9 Although Kadir makes no similar statements, the defense argued to We don t agree with what al Qaeda does. We don t agree Kadir App. at 158 (Trial Tr.). 10 the district court that he was agreeing [with] and adopting all of 11 [his student s] statements, by saying a hum, a hum. 12 Tr.). 13 not hearsay because they reflected his intent as expressed by his 14 student. 15 statement of mmm mm . . . [wa]sn t necessarily an adoption [of] 16 what someone says, 17 excluded as hearsay. 18 Id. (Trial Kadir argued that his own statements ( a hum, a hum ) were The district court disagreed, ruling that Kadir s mere id. at 165 (Trial Tr.), and the testimony was As with the other evidentiary rulings discussed above, the 19 district court s decision to exclude this tape recording is 20 reviewed for abuse of discretion. 21 defendant may not introduce his own prior out-of-court statements 22 because they are hearsay, and . . . not admissible. 23 States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). 24 statement of the declarant s then-existing state of mind (such as 16 See Marcic, 397 F.3d at 124. A United However, a 1 motive, intent, or plan) is exempted from the hearsay rule. 2 R. Evid. 803(3). 3 admissible if Kadir could show that they reflect Kadir s own 4 intent. 5 Fed. Thus, the student s statements would be We find no fault with the district court s conclusion that 6 Kadir did not establish his adoption of his student s statements. 7 Kadir cites to one case that he alleges stands for the proposition 8 that A-hum means yes. 9 (NPM), 2007 WL 3171782, at *9 (N.D.N.Y. Oct. 29, 2007) (in response See Johnson v. Ricks, 9:02-CV-1366 10 to a question by the court, a juror answers A-hum, which the 11 court apparently accepts as a yes answer). 12 to that effect, however, and the colloquy between judge and juror 13 in Johnson shows at most that such an utterance can mean yes. 14 the government points out, an mm-mmm noise is as likely to 15 represent agreement with what somebody is saying as it is to 16 represent not paying attention to what somebody is saying, or even 17 disagreement with what somebody is saying coupled with a 18 willingness to hear the person out. 19 persuasive evidence that Kadir shared his student s views, it was 20 not error for the district court to exclude the recording. There was no holding Gov t Br. at 95. As Absent more 21 f. Sentencing 22 Both Kadir and Defreitas challenge their sentences of life 23 imprisonment as substantively unreasonable. 17 Kadir also argues that 1 his sentence was procedurally unreasonable. 2 without merit. 3 These arguments are Probation calculated the base offense level for all of 4 Defreitas s convictions to be 33. 5 enhancement was added pursuant to U.S.S.G. § 3A1.4(a),3 and four 6 additional levels were added under § 3B1.1(a) because Defreitas was 7 a leader of the plot. 8 automatic criminal history category of VI because the crime 9 involved terrorism, U.S.S.G. § 3A1.4(b), Defreitas s offense level 10 exceeded by six levels the highest level on the sentencing chart, 11 level 43, which itself carried a life sentence recommendation 12 without any regard to a defendant s criminal history. 13 A twelve-level terrorism With an adjusted offense level of 49, and an The base offense level for Kadir s offenses was 33, which was 14 similarly increased by twelve levels under the terrorism 15 enhancement and by two levels for testifying falsely at trial. 16 With a criminal history category of VI, and an adjusted offense 3 Section 3A1.4, describing adjustments for crimes involving terrorism, provides: (a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32. (b) In each such case, the defendant s criminal history category . . . shall be Category VI. In short, the penalties for terrorism are harsh: at offense level 32 and criminal history category VI, the recommended sentence is 210-262 months. 18 1 level of 47, Kadir s recommended sentence also fell above the 2 sentencing chart s range. 3 This Court reviews sentences for reasonableness under the 4 deferential abuse of discretion standard. 5 Johnson, 567 F.3d 40, 51 (2d Cir. 2009). 6 the procedure of the sentencing are reviewed for reasonableness. 7 Id. 8 district court (1) fails to calculate the Guidelines range; (2) is 9 mistaken in the Guidelines calculation; (3) treats the Guidelines United States v. Both the substance and Among other things, procedural error may occur when the 10 as mandatory; (4) does not give proper consideration to the 11 § 3553(a) factors; (5) makes clearly erroneous factual findings; 12 (6) does not adequately explain the sentence imposed; or 13 (7) deviates from the Guidelines range without explanation. 14 Id. When examining substantive reasonableness, the Court takes 15 into account the totality of the circumstances, giving due 16 deference to the sentencing judge s exercise of discretion, and 17 bearing in mind the institutional advantages of district courts. 18 United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en 19 banc). 20 court s sentence was shockingly high, shockingly low, or otherwise 21 unsupportable as a matter of law. 22 F.3d 108, 123 (2d Cir. 2009). 23 24 Substantive reasonableness review asks whether the district United States v. Rigas, 583 None of either defendant s sentencing arguments supports resentencing. Kadir argues that he was previously offered a plea 19 1 agreement, but that the offer was withdrawn. 2 argues that his sentence was procedurally unreasonable because he 3 was punished for going to trial, but he offers no evidence of such 4 punishment, other than the length of his sentence, which was 5 within the Guidelines range. 6 358, 361 (2d Cir. 2008) (per curiam) (holding that a district court 7 is not required to consider a rejected plea offer during 8 sentencing). 9 sentence Kadir and Nur, who received a 180-month prison term, On this basis, he See United States v. Negron, 524 F.3d Further, it was not an abuse of discretion to 10 differently because Nur was sentenced under a plea agreement that 11 included his undertaking to plead guilty to lesser charges and 12 admit his knowledge of the plot. 13 Finally, neither Kadir nor Defreitas offers a persuasive 14 argument that their sentences were substantively unreasonable. 15 district court stated explicitly at both sentencing hearings that 16 it was mindful of the principle that each defendant s sentence 17 must not be greater than necessary to achieve the goals of 18 sentencing. 19 Kadir App. at 413 (Sentencing Tr.). 20 of conspiring to explode pipelines and jet-fuel tanks at JFK 21 Airport in order to kill countless Americans and other travelers, 22 disrupt air travel, and harm the American economy. 23 the crimes for which they were convicted easily justifies the life The Defreitas App. at 1127 (Sentencing Tr.); see also 20 The defendants were convicted The gravity of 1 sentences that were imposed. 2 affirmed. Kadir s and Defreitas s sentences are 3 * * * 4 We have reviewed the remainder of Defreitas s and Kadir s 5 arguments and find them to be without merit. 6 2. Nur 7 Although Nur filed a notice of appeal, his counsel Daniel 8 Nobel moves for permission to withdraw pursuant to Anders, 386 U.S. 9 738. 10 11 The government cross-moves to dismiss Nur s appeal as barred by an appeal waiver. Nobel s Anders motion and the government s motion to dismiss 12 Nur s appeal are granted. 13 the plea hearing transcript, we find that Nur s guilty plea was 14 knowing and voluntary. 15 not to appeal his conviction or sentence if the district court 16 impose[d] a term of imprisonment of 180 months or below. 17 App. at 66 (Plea Agreement). 18 months imprisonment, his waiver bars the appeal. 19 raises no non-frivolous issues on appeal. 20 Gomez-Perez, 215 F.3d 315, 319, 321 (2d Cir. 2000). 21 22 Upon review of the plea agreement and He also knowingly and voluntarily agreed Nur Because Nur was sentenced to 180 In any event, he See United States v. CONCLUSION For the foregoing reasons, the district court judgments are 23 AFFIRMED. 24 motion is GRANTED. Nur s appeal is DISMISSED, and his attorney s Anders 21
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
