United States v. Siddiqui, No. 10-3916 (2d Cir. 2012)

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Justia Opinion Summary

Defendant appealed her convictions for attempted murder of United States nationals, attempted murder of United States officers and employees, armed assault of United States officers and employees, assault of United States officers and employees, and use of a firearm during a crime of violence. Defendant also challenged her sentence of 86 years imprisonment. The court held that the district court did not err in denying defendant's motion to dismiss Count One of the indictment; the district court appropriately denied defendant's motion to dismiss Counts Two through Seven of the indictment; the district court did not commit reversible error by admitting, under Federal Rule of Evidence 404(b), documents allegedly found in her possession at the time Afghan officials took her into custody; the district court did not err in allowing defendant to testify in her own defense; the district court did not err in allowing the government to rebut her testimony with un-Mirandized statements she gave to the FBI; and the district court did not err in applying the terrorism enhancement under U.S.S.G. 3A1.4. Accordingly, the court affirmed the convictions and sentence.

The court issued a subsequent related opinion or order on November 15, 2012.

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10-3916-cr United States v. Siddiqui 1 2 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 39 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: February 10, 2012 Decided: November 5, 2012) Docket No. 10-3916-cr UNITED STATES OF AMERICA, Appellee, v. AAFIA SIDDIQUI, Defendant-Appellant.* Before: WESLEY, CARNEY, Circuit Judges, MAUSKOPF, District Judge.** Defendant-Appellant Aafia Siddiqui appeals her criminal convictions, entered after a jury trial in the United States District Court for the Southern District of New York (Berman, J.), for attempted murder of United States nationals, attempted murder of United States officers and employees, armed assault of United States officers and employees, assault of United States officers and employees, and use of a firearm during a crime of violence. She also challenges her sentence of eighty-six years imprisonment. Siddiqui contends that the district court erred in a number * The Clerk of the Court is respectfully directed to amend the caption to conform with the above. ** The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation. 1 2 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 39 40 41 42 of ways. We address five of Siddiqui s arguments here:(1) that Count One of the indictment was deficient because the Attorney General failed to timely issue a required certification for prosecution under 18 U.S.C. § 2332, and because the statutes underlying Counts Two through Seven do not apply extraterritorially in an active theater of war; (2) that the district court committed reversible error by admitting, under Federal Rule of Evidence 404(b), documents allegedly found in her possession at the time Afghan officials took her into custody; (3) that the district court erred in allowing her to testify in her own defense despite a request from defense counsel to preclude her from doing so because of her alleged mental illness; (4) that the district court erred in allowing the government to rebut her testimony with un-Mirandized statements she gave to FBI agents while hospitalized at Bagram Airfield because those statements allegedly were not voluntary; and (5) that the district court erred in applying the terrorism enhancement under section 3A1.4 of the United States Sentencing Guidelines. We address Siddiqui s remaining arguments in an accompanying summary order. AFFIRMED. DAWN M. CARDI (Chad L. Edgar, on the brief), Dawn M. Cardi & Associates, New York, NY, for Defendant-Appellant. JENNA M. DABBS, Assistant United States Attorney (Christopher L. Lavigne, Jesse M. Furman, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. WESLEY, Circuit Judge: Defendant-Appellant Aafia Siddiqui appeals from a judgment of the United States District Court for the 2 1 Southern District of New York (Berman, J.) entered on 2 September 23, 2010, convicting her after a jury trial of one 3 count of attempted murder of United States nationals in 4 violation of 18 U.S.C. § 2332(b)(1); one count of attempted 5 murder of United States officers and employees in violation 6 of 18 U.S.C. § 1114(3); one count of armed assault of United 7 States officers and employees in violation of 18 U.S.C. §§ 8 111(a)(1) and (b); one count of using a firearm during a 9 crime of violence in violation of 18 U.S.C. § 924(c); and 10 three counts of assault of United States officers and 11 employees in violation of 18 U.S.C. § 111(a)(1). 12 district court sentenced her principally to 86 years 13 imprisonment. 14 convictions and, failing that, to vacate her sentence. 15 address five of the arguments that Siddiqui raises on appeal 16 here and the remaining issues in an accompanying summary 17 order. Siddiqui urges this Court to reverse her 18 19 The We I. BACKGROUND A. Offense Conduct 20 Around dusk on July 17, 2008, Afghan National Police 21 ( ANP ) detained Aafia Siddiqui, a United States-educated 22 Pakistani national, in Ghazni City, Afghanistan, on 3 1 suspicion of attempting to attack the Governor of Ghazni. 2 When police took her into custody, Siddiqui possessed, among 3 other things, various documents that discussed the 4 construction of weapons, referenced a mass casualty 5 attack, and listed a number of New York City landmarks. 6 Afghan authorities brought Siddiqui to an ANP facility for 7 questioning. 8 delivered the materials found in Siddiqui s possession to 9 the United States Army. 10 Later that evening, the Governor of Ghazni The following morning, the United States dispatched a 11 team to the ANP facility with the objective of interviewing 12 Siddiqui and ultimately taking her into American custody. 13 The team most dressed in military fatigues consisted of two 14 FBI agents and members of a military special forces unit. 15 Afghan officials brought the team to a poorly lit room 16 partitioned by a yellow curtain. 17 Afghan officials, and unbeknownst to the Americans, Siddiqui 18 was sequestered unrestrained behind the curtain. 19 The room was crowded with The presence of a large number of Afghan officials led 20 members of the American team to believe that they had been 21 brought to the room to discuss the terms of their access to 22 Siddiqui. One of the team members, a Chief Warrant Officer, 4 1 moved to a chair near the curtain dividing the room. 2 quickly glancing behind the curtain and seeing nothing, he 3 set down his M-4 rifle and turned to engage the Afghan 4 officials in conversation. 5 control of the rifle, aimed it at members of the American 6 team, shouted, and fired. 7 and struggled with Siddiqui. 8 with her, the Chief Warrant Officer drew his sidearm and 9 shot Siddiqui in the stomach. 10 After Moments later, Siddiqui gained The team s interpreter lunged at As the interpreter wrestled Team members then attempted to restrain Siddiqui, who 11 was fiercely resisting and screaming anti-American 12 statements. 13 going to kill all you Americans. 14 blood. 15 America and I will kill all you motherfuckers. 16 One witness recalled Siddiqui stating, I am You are going to die by my Another recounted that Siddiqui yelled death to Eventually, the Americans were able to subdue Siddiqui 17 enough to begin to render emergency medical aid to her. 18 After providing preliminary treatment at the scene, the 19 Americans transported her to a number of military bases in 20 Afghanistan to undergo surgery and receive further care. 21 July 19, 2008, American forces moved Siddiqui to Bagram 22 Airfield to recuperate. 5 On 1 While recovering at Bagram, Siddiqui was guarded by an 2 FBI team. 3 restraints. 4 Siddiqui provided a number of incriminating, un-Mirandized 5 statements to two members of the security team. 6 particular, she (1) asked about the penalty for attempted 7 murder; (2) stated that she had a number of documents in her 8 possession at the time of her arrest and recognized some of 9 them when shown to her; (3) said that she had picked up a 10 rifle with the intention of scaring the American team and 11 escaping; and (4) noted that spewing bullets at Americans 12 was a bad thing. 13 She was tethered to her hospital bed in soft During the course of her stay at Bagram, In The government filed a sealed criminal complaint 14 against Siddiqui in the Southern District of New York on 15 July 31, 2008. 16 transferred Siddiqui to the United States for prosecution. 17 A month later, Siddiqui was indicted. 18 B. Pre-Trial On August 4, 2008, the government 19 Soon after the indictment was filed, the district court 20 ordered that Siddiqui undergo psychiatric evaluations of her 21 competence to stand trial. 22 6, 2008, Dr. Leslie Powers opined that Siddiqui was not In a report issued on November 6 1 currently competent, citing, among other things, Siddiqui s 2 reports of visual hallucinations. 3 her assessment, finding that Siddiqui was malingering to 4 avoid prosecution. 5 conclusion, although one expert commissioned by the defense 6 opined that Siddiqui was not competent. 7 held a competency hearing on July 6, 2009. 8 the relevant evidence, the court found Siddiqui competent to 9 stand trial. 10 Later, Dr. Powers revised Other experts arrived at the same The district court After canvassing In advance of trial, the district court ruled on a 11 number of motions, some of which are relevant here. 12 Siddiqui first moved to dismiss all of the counts of the 13 indictment. 14 Attorney General failed to timely issue the required written 15 certification that her offense (attempted murder of United 16 States nationals) was intended to coerce, intimidate, or 17 retaliate against a government or a civilian population. 1 18 18 U.S.C. § 2332(d). 19 Two through Seven, charging violations of 18 U.S.C. §§ 1114, 20 111, and 924(c), should be dismissed because the statutes do 21 not have extraterritorial application under the As to Count One, Siddiqui claimed that the Siddiqui also contended that Counts 1 The certification was filed on the same day as the indictment. 7 1 circumstances of her case. 2 Siddiqui s motions. 3 The district court denied The district court also considered the government s 4 motion in limine to admit certain documents and other 5 evidence recovered from Siddiqui at the time of her arrest 6 by Afghan officials. 7 Siddiqui s handwriting and bore her fingerprints, referred 8 to attacks on the United States and the construction of 9 various weapons. These documents, some of which were in The court found this evidence admissible 10 pursuant to Federal Rule of Evidence 404(b) to show 11 Siddiqui s motive, intent, identity, and knowledge. 12 finding the documents admissible, the court rejected the 13 argument that the evidence would cause Siddiqui unfair 14 prejudice, concluding that the documents were no more 15 sensational than the crimes charged. 16 that it would instruct the jury that the documents were not 17 to be considered as propensity evidence. 18 C. Trial In The court also noted 19 At trial, the government presented six members of the 20 American interview team who testified that Siddiqui gained 21 control of the Chief Warrant Officer s rifle and fired at 22 them. Three more witnesses who did not directly observe the 8 1 shooting testified that they heard M-4 rifle shots. 2 government expert testified that the fact that no gunpowder 3 residue was found on the curtain hanging in the room did not 4 necessarily indicate that an M-4 had not been fired because 5 someone standing between the curtain and the weapon could 6 have absorbed the residue. 7 the 404(b) documents discussed above.2 8 9 A The government also introduced The defense put forth a forensic metallurgist who, based on the lack of forensic evidence of a discharge of a 10 M-4 rifle at the crime scene, testified that he did not 11 believe an M-4 had been fired in the room. 12 he found it implausible that someone could discharge an M-4 13 rifle in a room without bullet fragments or gunpowder 14 residue being recovered by authorities. 15 introduced deposition testimony of an ANP officer that when 16 Siddiqui was arrested she possessed documents describing how 17 to make explosive devices, among other things, and that 18 while in Afghani custody she made anti-American statements 19 and asked not be turned over to the United States. In particular, The defense also He also 2 The district court gave a limiting instruction to the jury, informing them that they could not consider the documents as proof that Siddiqui was predisposed to commit the crimes charged. The district court made clear that the documents could only be considered to the extent they demonstrated Siddiqui s motive, intent, or knowledge. 9 1 stated that he saw an American soldier walk behind the 2 curtain prior to hearing shots fired, although he did not 3 directly observe the shooting.3 4 testified that he observed a technician remove two rifle 5 shells from the scene. 6 Significantly, the officer Against the advice and over the objection of her 7 attorneys, Siddiqui took the stand to testify in her own 8 defense.4 9 was able to provide her version of the events that Though her testimony at times lacked focus, she 10 transpired on July 18, 2008. According to Siddiqui, she was 11 sitting behind a curtain in a room at the ANP facility when 12 she heard American voices. 13 American custody and peeked through an opening in the 14 curtain with the hope of finding an escape route. 15 testified that she was then shot from multiple directions. She feared being taken into Siddiqui 3 The government elicited admissions from the officer that he previously gave inconsistent statements to American investigators. 4 Defense counsel viewed this as a disastrous decision, and went so far as to make an application to the court to prevent Siddiqui from testifying. In their view, Siddiqui suffered from diminished capacity, such that she did not appreciate the risks inherent in testifying. Further, based on previous outbursts during the proceedings, they feared that Siddiqui would turn the [trial] into a spectacle, thus alienating the jury and damaging her prospects for acquittal. Prior to Siddiqui s testimony, the defense held an ex parte conference with the judge where they aired their concerns. The judge then opened the courtroom to the public, and Siddiqui indicated on the record that she understood (1) that testifying was a significant decision, and one that her counsel had unanimously recommended against; (2) that her testimony had to be relevant; (3) that if she veered off into tangential topics the court may stop her testimony; and (4) that by testifying she would be subject to an intense cross-examination aimed at undercutting her testimony. 10 1 She stated that she never picked up, aimed, or fired an M-4 2 rifle at the Americans. 3 Siddiqui claimed that she could not confirm that she 4 possessed documents at the time of her arrest in Afghanistan 5 because she was in a daze. 6 bag in which the documents were found was not hers but 7 rather was given to her. 8 referencing mass casualty attacks and listing New York City 9 landmarks, Siddiqui testified that it was a possibility 10 11 JA 2371. She stated that the When confronted with the document that the document was in her own handwriting. JA 2372. After the defense rested, the government presented its 12 rebuttal case. Two FBI agents who were members of 13 Siddiqui s security detail during her recovery at Bagram 14 recounted several incriminating statements that Siddiqui 15 made to them. 16 court held a hearing to determine whether Siddiqui gave 17 these un-Mirandized statements voluntarily.5 18 hearing, the two FBI agents testified, as did Siddiqui. 19 district court determined that Siddiqui s statements were 20 voluntary. Before receiving this testimony, the district 5 At that The The court conducted this voluntariness inquiry prior to admitting Siddiqui s testimony, and the government asked Siddiqui about her statements during its cross-examination in an attempt to impeach her. On crossexamination, she denied she made the statements. 11 1 On February 3, 2010, the jury returned a guilty verdict 2 on all counts of the indictment. The district court 3 sentenced Siddiqui on September 23, 2010. 4 number of other enhancements, the court applied the 5 terrorism enhancement pursuant to U.S.S.G. § 3A1.4. 6 applying the enhancement, the court found that Siddiqui s 7 offense was calculated to influence the conduct of the 8 government by intimidation, namely, attempting to frustrate 9 the interview team s efforts to detain her. In addition to a In Further, based 10 on a number of anti-American statements Siddiqui made before 11 and at the time of the shooting, the court determined that 12 Siddiqui s conduct was calculated to retaliate against the 13 United States government. 14 Siddiqui principally to 86 years imprisonment and five 15 years of supervised release. 16 17 18 19 The district court sentenced Siddiqui timely appealed her convictions and sentence. II. DISCUSSION A. Denial of Siddiqui s Motion to Dismiss the Indictment Siddiqui raised below, and now reasserts, several 20 challenges to the indictment. According to Siddiqui, the 21 district court should have dismissed Count One, which 22 charged a violation of 18 U.S.C. § 2332, because the United 12 1 States Attorney General did not timely issue the 2 certification required by 18 U.S.C. § 2332(d). 3 argues that the remaining counts are deficient because the 4 underlying statutes do not apply extraterritorially in an 5 active theater of war. She also We disagree. 6 Section 2332(d) provides that [n]o prosecution for any 7 offense described in this section shall be undertaken by the 8 United States except on written certification of the 9 Attorney General . . . [that] such offense was intended to 10 coerce, intimidate, or retaliate against a government or 11 civilian population. 12 principles to conclude that a prosecution is commenced at 13 the time of arrest or the filing of formal charges. 14 Siddiqui s argument here encounters an obstacle: the 15 original complaint on which Siddiqui was arrested did not 16 charge a violation of § 2332. 17 was the indictment, which was filed the same day the 18 Attorney General issued the § 2332(d) certification. 19 Siddiqui relies on speedy trial But The first instrument to do so Siddiqui has an answer to the problem. She points out 20 that the statute requires certification prior to a 21 prosecution for an offense described in this section. 22 U.S.C. § 2332(d) (emphasis added). 13 In her view, the 18 1 Attorney General is required to issue the certification 2 before an accusatory instrument describing facts that could 3 constitute a violation of § 2332 is filed, regardless of 4 whether that instrument actually charges a violation of 5 § 2332. 6 complaint filed on July 31, 2008 described conduct 7 proscribed by § 2332, the Attorney General s certification 8 filed the day of the indictment was untimely. Siddiqui reasons that because the criminal 9 Siddiqui s argument offers an unusual reading of what 10 appears to be straightforward statutory language a reading 11 that would undercut the very purpose of the provision. 12 Section 2332(d) s requirement that the Attorney General 13 issue a certification before prosecution for any offense 14 described in [§ 2332] shall be undertaken is most naturally 15 read as a requirement that the Attorney General issue the 16 certification either at the time of or before the filing of 17 the first instrument charging a violation of § 2332. 18 view furthers the purpose of § 2332(d) namely, ensuring that 19 the statute reaches only terrorist violence inflicted upon 20 United States nationals, not [s]imple barroom brawls or 21 normal street crime. 22 reprinted in 1986 U.S.C.C.A.N. 1926, 1960. This See H.R. Conf. Rep. 99-783, at 87, 14 1 Under Siddiqui s interpretation of the provision, the 2 Attorney General would have to issue the certification any 3 time someone engaged in conduct that could be covered by the 4 statute. 5 opportunity to sort through the facts of each case to 6 determine if it merited certification and prosecution under 7 the statute. 8 would undercut § 2332(d) s primary objective. 9 the district court did not err in denying Siddiqui s motion 10 11 This would deprive the Attorney General of the More simply put, Siddiqui s interpretation Accordingly, to dismiss Count One of the indictment. Siddiqui next contends that Counts Two through Seven of 12 the indictment should be dismissed because the charging 13 statutes 18 U.S.C. §§ 1114,6 111,7 and 924(c)8 do not have 14 application extraterritorially in an active theater of 15 war. 16 This argument is without merit. Congress has the authority to enforce its laws beyond 17 the territorial boundaries of the United States. United 18 States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (quoting 6 18 U.S.C. § 1114 prohibits the murder or attempted murder of any United States officer or employee while such officer or employee is engaged in, or on account of, his or her official duties. 7 18 U.S.C. § 111 punishes those who assault, resist, oppose, impede, intimidate, or interfere with a United States officer or employee while he or she is engaged in, or on account of, his or her official duties. 8 18 U.S.C. § 924(c) prohibits the use of a firearm during the commission of a crime of violence. 15 1 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). 2 ordinary presumption that laws do not apply 3 extraterritorially has no application to criminal statutes. 4 United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 5 2011). 6 Congressional intent to apply the statute extraterritorially 7 must be inferred from the nature of the offense. 8 (quoting United States v. Bowman, 260 U.S. 94, 98 (1922)). 9 The When the text of a criminal statute is silent, Id. The statutes underlying Counts Two through Seven apply 10 extraterritorially. Subsequent to the filing of Siddiqui s 11 brief, we held that 18 U.S.C. § 1114 applies 12 extraterritorially. 13 reasoned that the nature of the offense protecting U.S. 14 personnel from harm when acting in their official 15 capacity implies an intent that [the statute] apply outside 16 of the United States. 17 Congress to have intended to limit these protections to U.S. 18 personnel acting within the United States only. For the 19 same reason, § 111 applies extraterritorially. See United 20 States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir. 1984); 21 see also United States v. Hasan, 747 F. Supp. 2d 642, 685-86 22 (E.D. Va. 2010). Al Kassar, 660 F.3d at 118. Id. We We see no basis for expecting Like 18 U.S.C. § 1114, the nature of the 16 1 offense protecting United States officers and employees 2 engaged in official duties from harm implies a Congressional 3 intent that § 111 apply outside of the United States. 4 Al Kassar, 660 F.3d at 118. 5 See As for § 924, which criminalizes the use of a firearm 6 during commission of a crime of violence, every federal 7 court that has considered the issue has given the statute 8 extraterritorial application where, as here, the underlying 9 substantive criminal statutes apply extraterritorially. 10 See, e.g., United States v. Belfast, 611 F.3d 783, 815 (11th 11 Cir. 2010); United States v. Ahmed, No. 10 Cr. 131 (PKC), 12 2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012); United 13 States v. Mardirossian, 818 F. Supp. 2d 775, 776-77 14 (S.D.N.Y. 2011). 15 conclusions. 16 We see no reason to quarrel with their Siddiqui s argument that the statutes, even if 17 generally extraterritorial, do not apply in an active 18 theater of war is unpersuasive.9 9 As the government points Indeed, this argument is premised on a misreading of a number of cases. Siddiqui contends that international law allow[s] an occupying force to try unlawful belligerents only in a military commission, see Siddiqui Br. 66, and thus extraterritorial application of the statutes at issue would run afoul of the general presumption that Congress intends its statutes to comport with international law. But the portion of Ex parte Quirin, 317 U.S. 1, 30 (1942), that Siddiqui cites merely stands for the more pedestrian observation that unlawful combatants, unlike lawful combatants, may be subjected to trial before a military commission. Moreover, the case Siddiqui cites for the proposition that [a]t least one court has expressed reservation about 17 1 out, it would be incongruous to conclude that statutes aimed 2 at protecting United States officers and employees do not 3 apply in areas of conflict where large numbers of officers 4 and employees operate. 5 denied Siddiqui s motion to dismiss Counts Two through Seven 6 of the Indictment. The district court appropriately 7 8 9 10 B. Admission of Documents under Federal Rule of Evidence 404(b) 11 in Siddiqui s possession that explained the construction and 12 use of various weapons and described a mass casualty 13 attack on a number of New York City landmarks for the 14 purpose of demonstrating Siddiqui s knowledge, motive, and 15 intent. 16 picked up and fired the Chief Warrant Officer s 17 rifle removed those issues from the case and thus admission 18 of the documents was improper. The district court admitted documents allegedly found Siddiqui argues that her defense that she never 19 A district court s evidentiary rulings encounter 20 trouble on appeal only where the district court abuses its 21 discretion. United States v. Mercado, 573 F.3d 138, 141 (2d extending the extraterritorial reach of § 1114 into Afghanistan because of the sensitive state of the relationship between the two nations, see Siddiqui Br. 65-66, does not mention § 1114 at all. Instead, the case addressed whether federal courts had jurisdiction to afford habeas corpus relief and the protection of the Suspension Clause to aliens held in Executive detention at Bagram Airfield. Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010). 18 1 Cir. 2009). A district court abuses its discretion when 2 its evidentiary rulings are arbitrary and irrational. Id. 3 But even when an evidentiary ruling is manifestly 4 erroneous, the defendant will not receive a new trial if 5 admission of the evidence was harmless. 6 New York, 598 F.3d 50, 61 (2d Cir. 2010). Cameron v. City of 7 Federal Rule of Evidence 404(b) provides that evidence 8 of a defendant s prior crimes, wrongs, or other acts cannot 9 be used to prove that a defendant was a bad fellow and most 10 likely remains one that he has a criminal nature or 11 propensity and the acts in question are consistent with his 12 nature or tendency towards crime. 13 evidence may be admissible for other legitimate purposes, 14 such as demonstrating motive, opportunity, identity, intent, 15 and knowledge. 16 other act evidence is generally admissible unless it 17 serves the sole purpose of showing a defendant s bad 18 character. 19 Cir. 2011).10 Id. However, this type of Under our inclusionary approach, all United States v. Curley, 639 F.3d 50, 56 (2d 20 10 Of course, the strictures of Federal Rules of Evidence 401, 402, and 403 still apply to Rule 404(b) evidence. The evidence must be relevant to an issue in dispute, and its probative value must outweigh the risk of unfair prejudice. See United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). 19 1 A defendant may, however, forestall the admission of 2 Rule 404(b) evidence by advancing a theory that makes clear 3 that the object the 404(b) evidence seeks to establish, 4 while technically at issue, is not really in dispute. 5 United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). 6 For example, a defense theory that the defendant did not 7 commit the charged act effectively removes issues of intent 8 and knowledge from the case. 9 v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988). 10 See See id at 657; United States Siddiqui s defense was just that I didn t fire the M-4. 11 But even assuming that Siddiqui s defense theory 12 effectively removed any issue of her intent or knowledge, 13 the documentary evidence remained relevant to demonstrate 14 Siddiqui s motive. 15 the reason that nudges the will and prods the mind to 16 indulge the criminal intent, United States v. Benton, 637 17 F.2d 1052, 1056 (5th Cir. 1981) (internal quotation marks 18 omitted); the rationale for an actor s particular conduct, 19 United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010); and 20 an emotion or state of mind that prompts a person to act in 21 a particular way, Charles Alan Wright and Kenneth W. 22 Graham, Jr., Federal Practice and Procedure: Federal Rules Motive has been variously defined as 20 1 of Evidence § 5240. 2 the charged elements of a crime, evidence offered to prove 3 motive is commonly admitted. United States v. Salameh, 152 4 F.3d 88, 111 (2d Cir. 1998). And unlike issues of knowledge 5 and intent, the defendant s motive an explanation of why the 6 defendant would engage in the charged conduct becomes highly 7 relevant when the defendant argues that he did not commit 8 the crime. 9 Although it does not bear directly on For instance, in Salameh, the defendants were charged 10 with a conspiracy to bomb the World Trade Center. Id. at 11 108. 12 defendants that bristled with strong anti-American 13 sentiment. 14 documents admissible to demonstrate the conspiracy s motive. 15 Id. The district court admitted documents possessed by the Id. at 111. On appeal, we found those 16 Here, the documents the government introduced pursuant 17 to Rule 404(b) detail, among other things, the construction 18 of fertilizer and plastic explosives. 19 particular discusses radioactive bombs, biological weapons, 20 and chemical weapons. 21 phrase mass casualty attack and lists a number of New York 22 City landmarks, including Grand Central Terminal, the Empire One document in That document also contains the 21 1 State Building, the Statute of Liberty, and the Brooklyn 2 Bridge. 3 Siddiqui s possession at the time Afghan officials took her 4 into custody11 and some of which were in her handwriting, 5 supply a plausible rationale for why Siddiqui would fire a 6 rifle at the American interview team, namely, she harbored 7 an anti-American animus. 8 ultimate issue in dispute at trial whether Siddiqui picked 9 up and fired the M-4 rifle at the American interview team. Taken together, these documents, which were in This motive was relevant to the 10 Accordingly, the district court did not abuse its discretion 11 in admitting the documents pursuant to Rule 404(b).12 12 But even if we agreed with Siddiqui that the district 13 court abused its discretion in admitting the documents, that 14 would not end the matter. There would remain the question 11 In her brief, Siddiqui appears to contend that the government was required to call Afghan witnesses who were present at Siddiqui s arrest to confirm this fact. We disagree. There was more than sufficient evidence to establish that the documents were in Siddiqui s possession at the time of her arrest. Some were in her handwriting, and some bore her fingerprints. Moreover, on the day of her arrest, Afghan officials delivered the documents to American military authorities, which also tends to corroborate that Siddiqui possessed the documents when arrested by Afghan authorities. 12 Although Siddiqui often characterizes the admitted documents as adverse and prejudicial, incendiary, and powerful, prejudicial, and damning, she never argues in her briefs that the evidence should have been excluded under Federal Rule of Evidence 403 on a theory that its probative value is substantially outweighed by a danger of unfair prejudice. As such, the argument is waived. See Tolbert v. Queens College, 242 F.3d 58, 76 (2d Cir. 2001); see also Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds by, 521 U.S. 1114 (1997). 22 1 of whether the error was harmless. An evidentiary error is 2 harmless if the appellate court can conclude with fair 3 assurance that the evidence did not substantially influence 4 the jury. 5 2011) (internal quotation marks omitted). 6 bear on the inquiry: whether the evidence was tied to an 7 issue that [was] plainly critical to the jury s decision ; 8 whether that [evidence] was material to the establishment 9 of the critical fact or whether it was instead United States v. Cadet, 664 F.3d 27, 32 (2d Cir. Several factors 10 corroborat[ive] and cumulative ; and whether the wrongly 11 admitted evidence was emphasized in arguments to the jury. 12 Curley, 639 F.3d at 58 (internal quotation marks omitted). 13 But the most critical factor is the strength of the 14 government s case. 15 Id. (internal quotation marks omitted). Here, although the government by its own admission 16 repeatedly referenced the documents introduced at trial, 17 Government Br. 37, the jury also had ample testimony before 18 it regarding anti-American statements Siddiqui made at the 19 time of the shooting from which it could conclude that 20 Siddiqui harbored an animus towards the United States. 21 most importantly, the strength of the government s case was 22 overwhelming. Among other evidence, six members of the 23 And 1 American interview team testified that Siddiqui gained 2 control of the Chief Warrant Officer s rifle and fired at 3 them. 4 observe the shooting testified that they heard M-4 rifle 5 shots. 6 introduced the testimony of two FBI agents who had 7 interviewed Siddiqui. 8 among other things, (1) asked what the penalty for attempted 9 murder was; and (2) noted that spewing bullets at 10 11 Another three government witnesses who did not Moreover, after Siddiqui testified, the government According to those agents, Siddiqui, Americans was a bad thing. Siddiqui counters that her forensic expert s opinion 12 that an M-4 rifle had not been fired in the room effectively 13 neutralized the government s case against her. 14 this forensic expert s testimony was undermined by one of 15 Siddiqui s own witnesses, who testified that two rifle 16 shells were recovered from the room, and by a government 17 expert s testimony that the absence of certain forensic 18 evidence from the room was not necessarily inconsistent with 19 the firing of a weapon. 20 However, Siddiqui also asserts that our decision in United 21 States v. Colon, 880 F.2d 650 (2d Cir. 1989), requires us to 22 grant her a new trial. She argues that Colon mandates that 24 1 we assess the strength of the government s case without 2 reference to the government s cross-examination of Siddiqui 3 or the incriminating statements she made at Bagram and that 4 Colon requires a new trial because the admission of the 5 documents forced her to testify and she was harmed by doing 6 so. 7 We disagree. In Colon, the defendant was charged with heroin 8 distribution. Id. at 652. 9 engage in the charged act. His defense was that he did not Id. at 658. Nevertheless, the 10 district court admitted evidence concerning two prior 11 instances in which the defendant had sold heroin to 12 demonstrate knowledge and intent an obvious error. 13 656. 14 counsel, "the [Assistant] U.S. Attorney made a jackass out 15 of him." 16 the cross-examination cast doubt on the defendant's 17 credibility and delved deeply into the circumstances 18 surrounding the defendant's prior involvement with heroin. 19 Id. 20 defendant's case was badly damaged by the erroneous 21 admission of the evidence, and because the defense may have 22 felt that there was no alternative but to have the defendant Id. at The defendant then testified, and, in the words of his Id. at 661 (brackets in original). Specifically, Because the record in Colon demonstrated that the 25 1 testify as a result, we granted the defendant a new trial. 2 See id. at 661-62. 3 Here, we need not resolve the issue of whether Colon 4 necessitates that we measure the strength of the 5 Government s case without reference to either Siddiqui s 6 cross-examination or the admission of the incriminating 7 statements she made at Bagram. 8 the government s case against Siddiqui can only be fairly 9 characterized as devastating. 10 Even without that evidence, We also disagree with Siddiqui s claim that Colon 11 requires a new trial because the admission of the 404(b) 12 evidence forced her to testify and her defense was badly 13 damaged by that testimony. 14 introduction of the 404(b) evidence here did not necessitate 15 Siddiqui s testimony from an objective, strategic 16 standpoint. 17 the issue of whether Siddiqui harbored an anti-American 18 animus, given that numerous witnesses testified as part of 19 the government s case-in-chief that she made anti-American 20 statements during the shooting incident. Further, even 21 after the introduction of the 404(b) evidence, defense 22 counsel advised Siddiqui not to testify, we presume in large Unlike in Colon, the The 404(b) evidence was somewhat cumulative on 26 1 part because her testimony would open the door to the 2 admission of the incriminating statements she made while 3 recovering at Bagram. 4 make an otherwise harmless error harmful based on her simple 5 assertion that the error compelled her to testify. 6 7 8 9 C. Denial of Defense Counsel s Application to Keep Siddiqui from Testifying Colon does not allow a defendant to It is well established that criminal defendants have 10 the right to testify in their own defense. Rock v. 11 Arkansas, 483 U.S. 44, 49 (1987); see Brown v. Artuz, 124 12 F.3d 73, 76 (2d Cir. 1997). 13 essential to due process of law in a fair adversary 14 process. 15 Cir. 2011) (internal quotation marks omitted). 16 because the most important witness for the defense in many 17 criminal cases is the defendant himself, and he has the 18 right to present his own version of events in his own 19 words. 20 testify remains at all times with the defendant; defense 21 counsel, though charged with an obligation to apprise the 22 defendant of the benefits and risks of testifying, cannot 23 make the decision, regardless of tactical considerations. 24 Brown, 124 F.3d at 77-78. This right . . . is . . . Bennett v. United States, 663 F.3d 71, 84 (2d Rock, 483 U.S. at 52. 27 That is The ultimate decision to 1 Siddiqui s counsel does not challenge these clearly 2 established principles. 3 exception to the general rule, arguing that in some cases a 4 defendant may be competent to stand trial yet incompetent to 5 exercise her right to testify without the approval of 6 defense counsel. 7 Instead, she urges us to craft an In support of her argument, counsel relies heavily on 8 the Supreme Court s decision in Indiana v. Edwards, 554 U.S. 9 164 (2008). There, the Court held that a state may 10 determine that a defendant who is competent to stand trial 11 may nonetheless be incapable of representing himself at 12 trial and may thus insist that the defendant have trial 13 counsel. 14 defendant may not possess the ability to execute tasks such 15 as organizing a defense, arguing points of law, and 16 questioning witnesses. 17 that a prolonged spectacle could result from such a 18 defendant representing himself, and that spectacle would 19 undercut the Constitution s goal of providing a fair trial. 20 Id. at 177. 21 22 Id. at 167. The Court noted that a mentally ill Id. at 176-77. It further observed Counsel s reliance on Edwards is misplaced. First, as three other circuits have recognized, Edwards holds that a 28 1 court may require that trial counsel appear on behalf of a 2 mentally ill defendant, not that it must do so. 3 States v. Turner, 644 F.3d 713, 724 (8th Cir. 2011); United 4 States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); United 5 States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009). 6 But even if Edwards mandated trial courts to require trial 7 counsel for a discrete group of mentally ill defendants, the 8 case still would have no application here. 9 dictates that the mental capacity needed to conduct an 10 entire trial is much greater than the mental capacity 11 required to play the more limited role of witness on one s 12 own behalf. 13 version of events before a jury is more fundamental to a 14 personal defense than the right of self-representation. 15 Rock, 483 U.S. at 52. 16 significantly support, let alone compel, the conclusion that 17 a district court may prevent a mentally ill defendant from 18 testifying on her own behalf if defense counsel moves to 19 keep the defendant off the stand. 20 See United Common sense Moreover, the defendant s right to air her As such, Edwards does not We question whether the Constitution permits a finding 21 that a criminal defendant is competent to stand trial, yet 22 incompetent to determine whether to testify on her own 29 1 behalf. But we need not decide that question today. Here, 2 the district court went to extraordinary lengths to ensure 3 that Siddiqui understood the implications of testifying and 4 had the capacity to testify. 5 daylight between the standards governing a defendant's 6 capacity to stand trial and those for assessing her capacity 7 to determine whether to testify (and then, actually to 8 testify), we would find no reason to upset the district 9 court's implicit determination that Siddiqui did in fact 10 have the requisite capacity to make the latter decision 11 here. 12 defendants' decisions to testify was a poor one, does not 13 alter our analysis. 14 15 16 17 D. Voluntariness of Siddiqui s un-Mirandized statements at Bagram 18 finding that the incriminating, un-Mirandized statements she 19 gave to two members of the FBI security team while she was 20 hospitalized at Bagram Airfield were voluntary and thus 21 could be used in the government s rebuttal case after 22 Siddiqui testified. 23 court held a hearing to determine the voluntariness of the 24 statements. Even were we to discern any That Siddiqui's choice to testify like many See Brown, 124 F.3d at 77-78. Siddiqui contends that the district court erred in Prior to Siddiqui s testimony, the At that hearing, the two FBI agents testified, 30 1 and the district court s ruling credited their testimony. 2 Their testimony established the following. 3 During the course of her stay at Bagram, Siddiqui was 4 tethered to her bed in soft restraints to prevent her 5 escape.13 6 best they could and never denied her access to the restroom, 7 food, water, or medical attention. 8 access to a medical call button that allowed her to contact 9 the hospital s medical staff directly; therefore, she was The agents endeavored to meet Siddiqui s needs as Further, Siddiqui had 10 not entirely dependent on the agents to meet her basic 11 needs. 12 medicated, she was coherent, lucid, and able to carry on a 13 conversation. 14 Although Siddiqui was at times in pain and Special Agent Angela Sercer spent the most time with 15 Siddiqui. She would arrive in the morning and stay 16 approximately eight hours in Siddiqui s room. 17 arriving, she would ask Siddiqui if she wanted to talk; if 18 Siddiqui indicated she did not, Sercer would remain quietly 19 in the room as a member of Siddiqui s security detail. 13 Upon These soft restraints, made of terry cloth and cotton, provided Siddiqui a fair range of mobility. In fact, the restraints provided such mobility that Siddiqui was able to remove them. After Siddiqui removed the restraints, the agents positioned the straps such that it was impossible to remove the strap on one hand with the other. The restraints were loose enough to allow her to read, drink, and wash, and were removed when Siddiqui required use of the washroom. 31 1 Although the topic of the July 18th shooting did come up, 2 Sercer s primary objective was to gather intelligence 3 related to another investigation of Siddiqui commenced years 4 earlier. 5 Sercer and indicated that she enjoyed their discussions. 6 Special Agent Bruce Kamerman spent significantly less time 7 with Siddiqui. 8 interviewing Siddiqui, supervisors instructed Kamerman to 9 continue the dialog when Siddiqui made unsolicited Siddiqui was generally receptive to speaking with Although he was not initially tasked with 10 incriminating statements to him. Siddiqui never indicated 11 to Kamerman that she was unwilling to talk. 12 gave Siddiqui Miranda warnings. Neither agent 13 Statements taken from a defendant in violation of 14 Miranda may not be introduced by the government during its 15 case in chief. 16 (2d Cir. 2008). 17 truthfully or suffer the consequences, the government may 18 introduce un-Mirandized statements to impeach the 19 defendant s testimony. 20 omitted). 21 defendant s involuntary statements. 22 Arizona, 437 U.S. 385, 397-98 (1978); see also United States United States v. Douglas, 525 F.3d 225, 248 But because a defendant must testify Id. (internal quotation marks The government cannot, however, introduce a 32 See, e.g., Mincey v. 1 v. Khalil, 214 F.3d 111, 121-22 (2d Cir. 2000). 2 Siddiqui testified at trial, the government was free to 3 introduce the statements she made at Bagram Airfield so long 4 as those statements were voluntary. 5 Because The government bears the burden of demonstrating that 6 the defendant s statements were voluntary. See United 7 States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); United 8 States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). 9 determine whether a defendant s statements were made To 10 voluntarily, courts look to the totality of the 11 circumstances surrounding the statements. 12 F.2d at 99. 13 age, his lack of education or low intelligence, the failure 14 to give Miranda warnings, the length of detention, the 15 nature of the interrogation, and any use of physical 16 punishment. Campaneria v. Reid, 891 F.2d 1014, 1020 (2d 17 Cir. 1989). A defendant s mental vulnerability also bears 18 on the analysis. 19 164 (1986). 20 Anderson, 929 Relevant factors . . . include the accused s See Colorado v. Connelly, 479 U.S. 157, A number of decisions have assessed the voluntariness 21 of a defendant s statements where the defendant was in 22 medical distress. For example, in Mincy, 437 U.S. at 398- 33 1 400, the Supreme Court held that a defendant s statements to 2 police were involuntary where the defendant (1) arrived at 3 the hospital a few hours before the interrogation depressed 4 almost to the point of coma ; (2) suffered unbearable 5 pain; (3) was unable to think coherently; (4) was 6 encumbered by tubes, needles, and [a] breathing apparatus ; 7 (5) expressed his desire that the interrogation cease 8 numerous times to no avail; and (6) was falling in and out 9 of consciousness. By contrast, courts tend to view a 10 hospitalized defendant s statements as voluntary where the 11 defendant was lucid and police conduct was not overbearing. 12 See Khalil, 214 F.3d at 121-22; Pagan v. Keane, 984 F.2d 61, 13 63 (2d Cir. 1993); Campaneria, 891 F.2d at 1019-20. 14 We review the factual findings underpinning the 15 district court s voluntariness determination for clear error 16 while subjecting the ultimate conclusion that a defendant s 17 statements were voluntarily to de novo review. 18 214 F.3d at 122; see also United States v. Pettigrew, 468 19 F.3d 626, 633 (10th Cir. 2006); United States v. Bell, 367 20 F.3d 452, 460-61 (5th Cir. 2004). 21 error in the district court s determination that Siddiqui s 22 statements were voluntary. See Khalil, Doing so, we find no Although no Miranda warnings 34 1 were given and Siddiqui was kept in soft restraints for the 2 duration of her hospital stay, the agents conduct was not 3 overbearing or abusive. 4 endeavored to meet her basic needs. 5 freely with the agents, and when she indicated that she did 6 not want to engage in conversation, Special Agent Sercer sat 7 quietly in her room. 8 having earned her undergraduate degree from Massachusetts 9 Institute of Technology and a doctorate from Brandeis To the contrary, the agents Siddiqui conversed Further, Siddiqui is highly educated, 10 University. 11 Campaneria, Siddiqui was lucid and able to engage the agents 12 in coherent conversation despite the pain attendant to her 13 injury. 14 Most importantly, just as in Khalil, Pagan, and Thus, the district court did not err in allowing the 15 government to introduce the statements Siddiqui made while 16 recuperating at Bagram Airfield to rebut her trial 17 testimony. 18 19 20 21 E. Application of the Terrorism Enhancement to Siddiqui s Sentence 22 district court s application of the terrorism enhancement 23 under U.S.S.G. § 3A1.4. 24 the defendant s offense level and elevates the defendant s Finally, we address Siddiqui s challenge to the The enhancement increases by twelve 35 1 criminal history category to category six if the defendant s 2 offense is a felony that involved, or was intended to 3 promote, a federal crime of terrorism. 4 crime of terrorism is an offense that is calculated to 5 influence or affect the conduct of government by 6 intimidation or coercion, or to retaliate against government 7 conduct ; and is a violation of any one of a number of 8 enumerated statutes, including 18 U.S.C. §§ 1114 and 2332. 9 U.S.S.G. § 3A1.4 app. n. 1; 18 U.S.C. § 2332b(g)(5). 10 Id. A federal The district court found that Siddiqui s offenses were 11 calculated to influence or affect government conduct and 12 that they were calculated to retaliate against government 13 conduct. 14 Siddiqui s offenses were calculated to influence or affect 15 by intimidation the government s fulfillment of its official 16 duties including, among other things, the interview team s 17 efforts to interview . . . and . . . detain her. 18 The court, pointing to statements Siddiqui made while in 19 Afghan custody, determined that Siddiqui began scheming to 20 avoid transfer to American custody on July 17, 2008, and 21 that the scheming came to fruition when Siddiqui gained 22 control of the Chief Warrant Officer s rifle and fired at 23 the American interview team. As to the former, the court determined that 36 JA 2848. 1 In support of the latter finding, the district court 2 highlighted testimony regarding various anti-American 3 statements Siddiqui made while in custody. 4 estimation, these statements demonstrated Siddiqui s intent 5 to retaliate against the United States government. 6 In the court s Siddiqui argues that the district court erred in applying 7 the enhancement. 8 terrorism enhancement and the Guidelines official victim 9 enhancement resulted in impermissible double counting. 10 also contends that her conduct was not calculated, as 11 required by the plain language of the enhancement. 12 According to Siddiqui, long-term planning is a necessary 13 condition to finding that a defendant s offense was 14 calculated. 15 She claims that application of both the She Siddiqui s contention that the district court committed 16 error in applying both the official victim enhancement and 17 the terrorism enhancement is devoid of merit. 18 court calculating a Guidelines sentence may apply multiple 19 [enhancements] based on the same underlying conduct, 20 especially where each of the multiple [enhancements] . . . 21 serves a distinct purpose or represents a discrete harm. 22 United States v. Maloney, 406 F.3d 149, 152, 153 (2d Cir. 37 [A] district 1 2005). 2 address discrete harms resulting from Siddiqui s conduct the 3 official victim enhancement deals with the selection of 4 victims based on their status as government employees, and 5 the terrorism enhancement addresses those acts that are 6 calculated to influence government conduct or to retaliate 7 against a government. 8 Embassies in East Africa, 552 F.3d 93, 153 (2d Cir. 2008). 9 Accordingly, application of both the terrorism and official 10 victim enhancements does not constitute impermissible double 11 counting. See id. 12 The terrorism and official victim enhancements both In re Terrorism Bombings of U.S. Resolution of Siddiqui s challenge to the district 13 court s finding that her offense was calculated merits 14 more discussion. 15 enhancement to apply, the defendant s offense must be 16 calculated to influence or affect the conduct of government 17 by intimidation or coercion, or to retaliate against 18 government conduct. 19 added). 20 words used their common meaning. 21 590 F.3d 93, 137 (2d Cir. 2009). 22 planned for whatever reason or motive to achieve the stated As previously noted, for the terrorism 18 U.S.C. § 2332b(g)(5)(A) (emphasis When we interpret the Guidelines, we giv[e] the 38 United States v. Stewart, Calculated means 1 object. 2 137 ( The conventional meaning of calculated is devised 3 with forethought. ). 4 Awan, 607 F.3d at 317; see Stewart, 590 F.3d at Many courts (including this one) interpret calculated 5 as nearly synonymous with intentional. See Stewart, 590 6 F.3d at 137; see also United States v. Chandia, 675 F.3d 7 329, 333 n.3 (4th Cir. 2012); United States v. El-Mezain, 8 664 F.3d 467, 571 (5th Cir. 2011); United States v. 9 Jayyousi, 657 F.3d 1085, 1115 (11th Cir. 2011). Thus, if a 10 defendant s purpose in committing an offense is to 11 influence or affect the conduct of government by 12 intimidation or coercion, or to retaliate against government 13 conduct, application of the terrorism enhancement is 14 warranted. 15 (quoting 18 U.S.C. § 2332b(g)(5)(A)). 16 there is no evidence that the defendant sought to influence 17 or affect the conduct of the government, the enhancement is 18 inapplicable. See Stewart, 590 F.3d at 137 (emphasis added) Where, however, Id. (internal quotation marks omitted). 19 Most cases applying the terrorism enhancement have 20 involved conduct that spanned a significantly greater length 21 of time than the conduct here. 22 310-11; United States v. Salim, 549 F.3d 67, 70-71 (2d Cir. 39 See, e.g., Awan, 607 F.3d at 1 2008); In re Terrorist Bombings, 552 F.3d at 103-05 (2d Cir. 2 2008); United States v. Meskini, 319 F.3d 88, 90-91 (2d Cir. 3 2003). 4 calculation, as used in the enhancement, incorporates a 5 long-term planning requirement. 6 term planning is present in many of the cases applying the 7 terrorism enhancement does not make it a condition necessary 8 to finding that a defendant s offense was calculated to 9 influence government conduct or to retaliate against a Relying on this observation, Siddiqui argues that We disagree. That long- 10 government. 11 applicable where a defendant acts according to a 12 plan whether developed over a long period of time or 13 developed in a span of seconds with the object of 14 influencing government conduct or retaliating against a 15 government. 16 Instead, the terrorism enhancement is The day before the shooting incident here, Siddiqui 17 repeatedly implored Afghan police officials not to turn her 18 over to American forces. 19 rifle and fired on the American interview team attempting to 20 take her into United States custody the following day. 21 Under these circumstances, the district court did not Siddiqui gained control of an M-4 40 1 clearly err14 in its determination that Siddiqui s offense 2 was calculated to influence government conduct i.e, the 3 United States attempts to take Siddiqui into custody by 4 intimidation or coercion. 5 We also find that the district court did not clearly 6 err in determining that Siddiqui s offense was calculated to 7 retaliate against the United States. 8 custody prior to the shooting incident, Siddiqui referred to 9 the United States as invaders, and when queried about the While in Afghan 10 bomb-making documents found in her possession, Siddiqui 11 indicated that the target of those bombs were the 12 foreigners. 13 firing on the American interview team, Siddiqui stated: I 14 am going to kill all you Americans. You are going to die by 15 my blood ; death to America ; and I will kill all you 16 motherfuckers. 17 sufficient factual basis for the district court s conclusion 18 that Siddiqui s offense was calculated to retaliate against 19 the United States. See JA 3022. What s more, shortly after Taken as a whole, this evidence provides a 20 14 We decline Siddiqui s invitation to apply a searching de novo review here. Because the district court s finding on this score is factual, clear error review is appropriate. See Salim, 549 F.3d at 79; see also El-Mezain, 664 F.3d at 571. 41 1 2 3 4 Accordingly, the district court did not err in applying the terrorism enhancement. III. CONCLUSION For the foregoing reasons, and for the reasons provided 5 in the accompanying summary order, Siddiqui s convictions 6 and sentence are hereby affirmed. 42