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

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This opinion or order relates to an opinion or order originally issued on November 5, 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) Amended: November 15, 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 * 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 43 44 challenges her sentence of eighty-six years imprisonment. Siddiqui contends that the district court erred in a number 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, JESSE M. FURMAN, Assistant United States Attorneys (Christopher L. Lavigne, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. 2 1 2 WESLEY, Circuit Judge: Defendant-Appellant Aafia Siddiqui appeals from a 3 judgment of the United States District Court for the 4 Southern District of New York (Berman, J.) entered on 5 September 23, 2010, convicting her after a jury trial of one 6 count of attempted murder of United States nationals in 7 violation of 18 U.S.C. § 2332(b)(1); one count of attempted 8 murder of United States officers and employees in violation 9 of 18 U.S.C. § 1114(3); one count of armed assault of United 10 States officers and employees in violation of 18 U.S.C. §§ 11 111(a)(1) and (b); one count of using a firearm during a 12 crime of violence in violation of 18 U.S.C. § 924(c); and 13 three counts of assault of United States officers and 14 employees in violation of 18 U.S.C. § 111(a)(1). 15 district court sentenced her principally to 86 years 16 imprisonment. 17 convictions and, failing that, to vacate her sentence. 18 address five of the arguments that Siddiqui raises on appeal 19 here and the remaining issues in an accompanying summary 20 order. The Siddiqui urges this Court to reverse her 21 22 3 We 1 2 I. BACKGROUND A. Offense Conduct 3 Around dusk on July 17, 2008, Afghan National Police 4 ( ANP ) detained Aafia Siddiqui, a United States-educated 5 Pakistani national, in Ghazni City, Afghanistan, on 6 suspicion of attempting to attack the Governor of Ghazni. 7 When police took her into custody, Siddiqui possessed, among 8 other things, various documents that discussed the 9 construction of weapons, referenced a mass casualty 10 attack, and listed a number of New York City landmarks. 11 Afghan authorities brought Siddiqui to an ANP facility for 12 questioning. 13 delivered the materials found in Siddiqui s possession to 14 the United States Army. 15 Later that evening, the Governor of Ghazni The following morning, the United States dispatched a 16 team to the ANP facility with the objective of interviewing 17 Siddiqui and ultimately taking her into American custody. 18 The team most dressed in military fatigues consisted of two 19 FBI agents and members of a military special forces unit. 20 Afghan officials brought the team to a poorly lit room 21 partitioned by a yellow curtain. 22 Afghan officials, and unbeknownst to the Americans, Siddiqui 23 was sequestered unrestrained behind the curtain. 4 The room was crowded with 1 The presence of a large number of Afghan officials led 2 members of the American team to believe that they had been 3 brought to the room to discuss the terms of their access to 4 Siddiqui. 5 moved to a chair near the curtain dividing the room. 6 quickly glancing behind the curtain and seeing nothing, he 7 set down his M-4 rifle and turned to engage the Afghan 8 officials in conversation. 9 control of the rifle, aimed it at members of the American One of the team members, a Chief Warrant Officer, After Moments later, Siddiqui gained 10 team, shouted, and fired. 11 and struggled with Siddiqui. 12 with her, the Chief Warrant Officer drew his sidearm and 13 shot Siddiqui in the stomach. 14 The team s interpreter lunged at As the interpreter wrestled Team members then attempted to restrain Siddiqui, who 15 was fiercely resisting and screaming anti-American 16 statements. 17 going to kill all you Americans. 18 blood. 19 America and I will kill all you motherfuckers. 20 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 21 enough to begin to render emergency medical aid to her. 22 After providing preliminary treatment at the scene, the 5 1 Americans transported her to a number of military bases in 2 Afghanistan to undergo surgery and receive further care. 3 July 19, 2008, American forces moved Siddiqui to Bagram 4 Airfield to recuperate. 5 On While recovering at Bagram, Siddiqui was guarded by an 6 FBI team. She was tethered to her hospital bed in soft 7 restraints. 8 Siddiqui provided a number of incriminating, un-Mirandized 9 statements to two members of the security team. During the course of her stay at Bagram, In 10 particular, she (1) asked about the penalty for attempted 11 murder; (2) stated that she had a number of documents in her 12 possession at the time of her arrest and recognized some of 13 them when shown to her; (3) said that she had picked up a 14 rifle with the intention of scaring the American team and 15 escaping; and (4) noted that spewing bullets at Americans 16 was a bad thing. 17 The government filed a sealed criminal complaint 18 against Siddiqui in the Southern District of New York on 19 July 31, 2008. 20 transferred Siddiqui to the United States for prosecution. 21 A month later, Siddiqui was indicted. On August 4, 2008, the government 22 6 1 B. Pre-Trial 2 Soon after the indictment was filed, the district court 3 ordered that Siddiqui undergo psychiatric evaluations of her 4 competence to stand trial. 5 6, 2008, Dr. Leslie Powers opined that Siddiqui was not 6 currently competent, citing, among other things, Siddiqui s 7 reports of visual hallucinations. 8 her assessment, finding that Siddiqui was malingering to 9 avoid prosecution. In a report issued on November Later, Dr. Powers revised Other experts arrived at the same 10 conclusion, although one expert commissioned by the defense 11 opined that Siddiqui was not competent. 12 held a competency hearing on July 6, 2009. 13 the relevant evidence, the court found Siddiqui competent to 14 stand trial. 15 The district court After canvassing In advance of trial, the district court ruled on a 16 number of motions, some of which are relevant here. 17 Siddiqui first moved to dismiss all of the counts of the 18 indictment. 19 Attorney General failed to timely issue the required written 20 certification that her offense (attempted murder of United 21 States nationals) was intended to coerce, intimidate, or As to Count One, Siddiqui claimed that the 7 1 retaliate against a government or a civilian population. 1 2 18 U.S.C. § 2332(d). 3 Two through Seven, charging violations of 18 U.S.C. §§ 1114, 4 111, and 924(c), should be dismissed because the statutes do 5 not have extraterritorial application under the 6 circumstances of her case. 7 Siddiqui s motions. 8 9 Siddiqui also contended that Counts The district court denied The district court also considered the government s motion in limine to admit certain documents and other 10 evidence recovered from Siddiqui at the time of her arrest 11 by Afghan officials. 12 Siddiqui s handwriting and bore her fingerprints, referred 13 to attacks on the United States and the construction of 14 various weapons. 15 pursuant to Federal Rule of Evidence 404(b) to show 16 Siddiqui s motive, intent, identity, and knowledge. 17 finding the documents admissible, the court rejected the 18 argument that the evidence would cause Siddiqui unfair 19 prejudice, concluding that the documents were no more 20 sensational than the crimes charged. 21 that it would instruct the jury that the documents were not 22 to be considered as propensity evidence. These documents, some of which were in The court found this evidence admissible 1 The court also noted The certification was filed on the same day as the indictment. 8 In 1 C. Trial 2 At trial, the government presented six members of the 3 American interview team who testified that Siddiqui gained 4 control of the Chief Warrant Officer s rifle and fired at 5 them. 6 shooting testified that they heard M-4 rifle shots. 7 government expert testified that the fact that no gunpowder 8 residue was found on the curtain hanging in the room did not 9 necessarily indicate that an M-4 had not been fired because Three more witnesses who did not directly observe the A 10 someone standing between the curtain and the weapon could 11 have absorbed the residue. 12 the 404(b) documents discussed above.2 13 The government also introduced The defense put forth a forensic metallurgist who, 14 based on the lack of forensic evidence of a discharge of a 15 M-4 rifle at the crime scene, testified that he did not 16 believe an M-4 had been fired in the room. 17 he found it implausible that someone could discharge an M-4 18 rifle in a room without bullet fragments or gunpowder 19 residue being recovered by authorities. In particular, The defense 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 introduced deposition testimony of an ANP officer that when 2 Siddiqui was arrested she possessed documents describing how 3 to make explosive devices, among other things, and that 4 while in Afghani custody she made anti-American statements 5 and asked not be turned over to the United States. 6 stated that he saw an American soldier walk behind the 7 curtain prior to hearing shots fired, although he did not 8 directly observe the shooting.3 9 testified that he observed a technician remove two rifle 10 11 He also Significantly, the officer shells from the scene. Against the advice and over the objection of her 12 attorneys, Siddiqui took the stand to testify in her own 13 defense.4 14 was able to provide her version of the events that 15 transpired on July 18, 2008. Though her testimony at times lacked focus, she According to Siddiqui, she was 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 sitting behind a curtain in a room at the ANP facility when 2 she heard American voices. 3 American custody and peeked through an opening in the 4 curtain with the hope of finding an escape route. 5 testified that she was then shot from multiple directions. 6 She stated that she never picked up, aimed, or fired an M-4 7 rifle at the Americans. 8 9 She feared being taken into Siddiqui Siddiqui claimed that she could not confirm that she possessed documents at the time of her arrest in Afghanistan 10 because she was in a daze. 11 bag in which the documents were found was not hers but 12 rather was given to her. 13 referencing mass casualty attacks and listing New York City 14 landmarks, Siddiqui testified that it was a possibility 15 that the document was in her own handwriting. 16 JA 2371. She stated that the When confronted with the document JA 2372. After the defense rested, the government presented its 17 rebuttal case. Two FBI agents who were members of 18 Siddiqui s security detail during her recovery at Bagram 19 recounted several incriminating statements that Siddiqui 20 made to them. 21 court held a hearing to determine whether Siddiqui gave Before receiving this testimony, the district 11 1 these un-Mirandized statements voluntarily.5 2 hearing, the two FBI agents testified, as did Siddiqui. 3 district court determined that Siddiqui s statements were 4 voluntary. 5 At that The On February 3, 2010, the jury returned a guilty verdict 6 on all counts of the indictment. The district court 7 sentenced Siddiqui on September 23, 2010. 8 number of other enhancements, the court applied the 9 terrorism enhancement pursuant to U.S.S.G. § 3A1.4. In addition to a In 10 applying the enhancement, the court found that Siddiqui s 11 offense was calculated to influence the conduct of the 12 government by intimidation, namely, attempting to frustrate 13 the interview team s efforts to detain her. 14 on a number of anti-American statements Siddiqui made before 15 and at the time of the shooting, the court determined that 16 Siddiqui s conduct was calculated to retaliate against the 17 United States government. 18 Siddiqui principally to 86 years imprisonment and five 19 years of supervised release. 20 Further, based The district court sentenced Siddiqui timely appealed her convictions and sentence. 5 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. 12 1 2 3 II. DISCUSSION A. Denial of Siddiqui s Motion to Dismiss the Indictment Siddiqui raised below, and now reasserts, several 4 challenges to the indictment. According to Siddiqui, the 5 district court should have dismissed Count One, which 6 charged a violation of 18 U.S.C. § 2332, because the United 7 States Attorney General did not timely issue the 8 certification required by 18 U.S.C. § 2332(d). 9 argues that the remaining counts are deficient because the 10 underlying statutes do not apply extraterritorially in an 11 active theater of war. She also We disagree. 12 Section 2332(d) provides that [n]o prosecution for any 13 offense described in this section shall be undertaken by the 14 United States except on written certification of the 15 Attorney General . . . [that] such offense was intended to 16 coerce, intimidate, or retaliate against a government or 17 civilian population. 18 principles to conclude that a prosecution is commenced at 19 the time of arrest or the filing of formal charges. 20 Siddiqui s argument here encounters an obstacle: the 21 original complaint on which Siddiqui was arrested did not 22 charge a violation of § 2332. Siddiqui relies on speedy trial But The first instrument to do so 13 1 was the indictment, which was filed the same day the 2 Attorney General issued the § 2332(d) certification. 3 Siddiqui has an answer to the problem. She points out 4 that the statute requires certification prior to a 5 prosecution for an offense described in this section. 6 U.S.C. § 2332(d) (emphasis added). 7 Attorney General is required to issue the certification 8 before an accusatory instrument describing facts that could 9 constitute a violation of § 2332 is filed, regardless of 10 whether that instrument actually charges a violation of 11 § 2332. 12 complaint filed on July 31, 2008 described conduct 13 proscribed by § 2332, the Attorney General s certification 14 filed the day of the indictment was untimely. 18 In her view, the Siddiqui reasons that because the criminal 15 Siddiqui s argument offers an unusual reading of what 16 appears to be straightforward statutory language a reading 17 that would undercut the very purpose of the provision. 18 Section 2332(d) s requirement that the Attorney General 19 issue a certification before prosecution for any offense 20 described in [§ 2332] shall be undertaken is most naturally 21 read as a requirement that the Attorney General issue the 22 certification either at the time of or before the filing of 14 1 the first instrument charging a violation of § 2332. This 2 view furthers the purpose of § 2332(d) namely, ensuring that 3 the statute reaches only terrorist violence inflicted upon 4 United States nationals, not [s]imple barroom brawls or 5 normal street crime. 6 reprinted in 1986 U.S.C.C.A.N. 1926, 1960. See H.R. Conf. Rep. 99-783, at 87, 7 Under Siddiqui s interpretation of the provision, the 8 Attorney General would have to issue the certification any 9 time someone engaged in conduct that could be covered by the 10 statute. 11 opportunity to sort through the facts of each case to 12 determine if it merited certification and prosecution under 13 the statute. 14 would undercut § 2332(d) s primary objective. 15 the district court did not err in denying Siddiqui s motion 16 to dismiss Count One of the indictment. 17 18 This would deprive the Attorney General of the More simply put, Siddiqui s interpretation Accordingly, Siddiqui next contends that Counts Two through Seven of the indictment should be dismissed because the charging 15 1 statutes 18 U.S.C. §§ 1114,6 111,7 and 924(c)8 do not have 2 application extraterritorially in an active theater of 3 war. 4 This argument is without merit. Congress has the authority to enforce its laws beyond 5 the territorial boundaries of the United States. United 6 States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (quoting 7 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). 8 ordinary presumption that laws do not apply 9 extraterritorially has no application to criminal statutes. The 10 United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 11 2011). 12 Congressional intent to apply the statute extraterritorially 13 must be inferred from the nature of the offense. 14 (quoting United States v. Bowman, 260 U.S. 94, 98 (1922)). 15 When the text of a criminal statute is silent, Id. The statutes underlying Counts Two through Seven apply 16 extraterritorially. Subsequent to the filing of Siddiqui s 17 brief, we held that 18 U.S.C. § 1114 applies 18 extraterritorially. Al Kassar, 660 F.3d at 118. We 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. 16 1 reasoned that the nature of the offense protecting U.S. 2 personnel from harm when acting in their official 3 capacity implies an intent that [the statute] apply outside 4 of the United States. 5 Congress to have intended to limit these protections to U.S. 6 personnel acting within the United States only. For the 7 same reason, § 111 applies extraterritorially. See United 8 States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir. 1984); 9 see also United States v. Hasan, 747 F. Supp. 2d 642, 685-86 Id. We see no basis for expecting 10 (E.D. Va. 2010). 11 offense protecting United States officers and employees 12 engaged in official duties from harm implies a Congressional 13 intent that § 111 apply outside of the United States. 14 Al Kassar, 660 F.3d at 118. 15 Like 18 U.S.C. § 1114, the nature of the See As for § 924, which criminalizes the use of a firearm 16 during commission of a crime of violence, every federal 17 court that has considered the issue has given the statute 18 extraterritorial application where, as here, the underlying 19 substantive criminal statutes apply extraterritorially. 20 See, e.g., United States v. Belfast, 611 F.3d 783, 815 (11th 21 Cir. 2010); United States v. Ahmed, No. 10 Cr. 131 (PKC), 22 2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012); United 17 1 States v. Mardirossian, 818 F. Supp. 2d 775, 776-77 2 (S.D.N.Y. 2011). 3 conclusions. 4 We see no reason to quarrel with their Siddiqui s argument that the statutes, even if 5 generally extraterritorial, do not apply in an active 6 theater of war is unpersuasive.9 7 out, it would be incongruous to conclude that statutes aimed 8 at protecting United States officers and employees do not 9 apply in areas of conflict where large numbers of officers As the government points 10 and employees operate. The district court appropriately 11 denied Siddiqui s motion to dismiss Counts Two through Seven 12 of the Indictment. 13 14 15 16 B. Admission of Documents under Federal Rule of Evidence 404(b) 17 in Siddiqui s possession that explained the construction and The district court admitted documents allegedly found 9 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 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 use of various weapons and described a mass casualty 2 attack on a number of New York City landmarks for the 3 purpose of demonstrating Siddiqui s knowledge, motive, and 4 intent. 5 picked up and fired the Chief Warrant Officer s 6 rifle removed those issues from the case and thus admission 7 of the documents was improper. Siddiqui argues that her defense that she never 8 A district court s evidentiary rulings encounter 9 trouble on appeal only where the district court abuses its 10 discretion. United States v. Mercado, 573 F.3d 138, 141 (2d 11 Cir. 2009). 12 its evidentiary rulings are arbitrary and irrational. Id. 13 But even when an evidentiary ruling is manifestly 14 erroneous, the defendant will not receive a new trial if 15 admission of the evidence was harmless. 16 New York, 598 F.3d 50, 61 (2d Cir. 2010). A district court abuses its discretion when Cameron v. City of 17 Federal Rule of Evidence 404(b) provides that evidence 18 of a defendant s prior crimes, wrongs, or other acts cannot 19 be used to prove that a defendant was a bad fellow and most 20 likely remains one that he has a criminal nature or 21 propensity and the acts in question are consistent with his 22 nature or tendency towards crime. 19 However, this type of 1 evidence may be admissible for other legitimate purposes, 2 such as demonstrating motive, opportunity, identity, intent, 3 and knowledge. 4 other act evidence is generally admissible unless it 5 serves the sole purpose of showing a defendant s bad 6 character. 7 Cir. 2011).10 8 9 Id. Under our inclusionary approach, all United States v. Curley, 639 F.3d 50, 56 (2d A defendant may, however, forestall the admission of Rule 404(b) evidence by advancing a theory that makes clear 10 that the object the 404(b) evidence seeks to establish, 11 while technically at issue, is not really in dispute. 12 United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). 13 For example, a defense theory that the defendant did not 14 commit the charged act effectively removes issues of intent 15 and knowledge from the case. 16 v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988). 17 defense was just that I didn t fire the M-4. See See id at 657; United States Siddiqui s 18 But even assuming that Siddiqui s defense theory 19 effectively removed any issue of her intent or knowledge, 20 the documentary evidence remained relevant to demonstrate 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). 20 1 Siddiqui s motive. Motive has been variously defined as 2 the reason that nudges the will and prods the mind to 3 indulge the criminal intent, United States v. Benton, 637 4 F.2d 1052, 1056 (5th Cir. 1981) (internal quotation marks 5 omitted); the rationale for an actor s particular conduct, 6 United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010); and 7 an emotion or state of mind that prompts a person to act in 8 a particular way, Charles Alan Wright and Kenneth W. 9 Graham, Jr., Federal Practice and Procedure: Federal Rules 10 of Evidence § 5240. 11 the charged elements of a crime, evidence offered to prove 12 motive is commonly admitted. United States v. Salameh, 152 13 F.3d 88, 111 (2d Cir. 1998). And unlike issues of knowledge 14 and intent, the defendant s motive an explanation of why the 15 defendant would engage in the charged conduct becomes highly 16 relevant when the defendant argues that he did not commit 17 the crime. 18 Although it does not bear directly on For instance, in Salameh, the defendants were charged 19 with a conspiracy to bomb the World Trade Center. 20 108. 21 defendants that bristled with strong anti-American 22 sentiment. Id. at The district court admitted documents possessed by the Id. at 111. On appeal, we found those 21 1 documents admissible to demonstrate the conspiracy s motive. 2 Id. 3 Here, the documents the government introduced pursuant 4 to Rule 404(b) detail, among other things, the construction 5 of fertilizer and plastic explosives. 6 particular discusses radioactive bombs, biological weapons, 7 and chemical weapons. 8 phrase mass casualty attack and lists a number of New York 9 City landmarks, including Grand Central Terminal, the Empire One document in That document also contains the 10 State Building, the Statute of Liberty, and the Brooklyn 11 Bridge. 12 Siddiqui s possession at the time Afghan officials took her 13 into custody11 and some of which were in her handwriting, 14 supply a plausible rationale for why Siddiqui would fire a 15 rifle at the American interview team, namely, she harbored 16 an anti-American animus. 17 ultimate issue in dispute at trial whether Siddiqui picked 18 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 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. 22 1 Accordingly, the district court did not abuse its discretion 2 in admitting the documents pursuant to Rule 404(b).12 3 But even if we agreed with Siddiqui that the district 4 court abused its discretion in admitting the documents, that 5 would not end the matter. 6 of whether the error was harmless. 7 harmless if the appellate court can conclude with fair 8 assurance that the evidence did not substantially influence 9 the jury. There would remain the question An evidentiary error is United States v. Cadet, 664 F.3d 27, 32 (2d Cir. 10 2011) (internal quotation marks omitted). Several factors 11 bear on the inquiry: whether the evidence was tied to an 12 issue that [was] plainly critical to the jury s decision ; 13 whether that [evidence] was material to the establishment 14 of the critical fact or whether it was instead 15 corroborat[ive] and cumulative ; and whether the wrongly 16 admitted evidence was emphasized in arguments to the jury. 17 Curley, 639 F.3d at 58 (internal quotation marks omitted). 18 But the most critical factor is the strength of the 19 government s case. Id. (internal quotation marks omitted). 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). 23 1 Here, although the government by its own admission 2 repeatedly referenced the documents introduced at trial, 3 Government Br. 37, the jury also had ample testimony before 4 it regarding anti-American statements Siddiqui made at the 5 time of the shooting from which it could conclude that 6 Siddiqui harbored an animus towards the United States. 7 most importantly, the strength of the government s case was 8 overwhelming. 9 American interview team testified that Siddiqui gained And Among other evidence, six members of the 10 control of the Chief Warrant Officer s rifle and fired at 11 them. 12 observe the shooting testified that they heard M-4 rifle 13 shots. 14 introduced the testimony of two FBI agents who had 15 interviewed Siddiqui. 16 among other things, (1) asked what the penalty for attempted 17 murder was; and (2) noted that spewing bullets at 18 Americans was a bad thing. 19 Another three government witnesses who did not Moreover, after Siddiqui testified, the government According to those agents, Siddiqui, Siddiqui counters that her forensic expert s opinion 20 that an M-4 rifle had not been fired in the room effectively 21 neutralized the government s case against her. 22 this forensic expert s testimony was undermined by one of 24 However, 1 Siddiqui s own witnesses, who testified that two rifle 2 shells were recovered from the room, and by a government 3 expert s testimony that the absence of certain forensic 4 evidence from the room was not necessarily inconsistent with 5 the firing of a weapon. 6 Siddiqui also asserts that our decision in United 7 States v. Colon, 880 F.2d 650 (2d Cir. 1989), requires us to 8 grant her a new trial. 9 we assess the strength of the government s case without She argues that Colon mandates that 10 reference to the government s cross-examination of Siddiqui 11 or the incriminating statements she made at Bagram and that 12 Colon requires a new trial because the admission of the 13 documents forced her to testify and she was harmed by doing 14 so. 15 We disagree. In Colon, the defendant was charged with heroin 16 distribution. Id. at 652. His defense was that he did not 17 engage in the charged act. 18 district court admitted evidence concerning two prior 19 instances in which the defendant had sold heroin to 20 demonstrate knowledge and intent an obvious error. 21 656. 22 counsel, "the [Assistant] U.S. Attorney made a jackass out Id. at 658. Nevertheless, the Id. at The defendant then testified, and, in the words of his 25 1 of him." 2 the cross-examination cast doubt on the defendant's 3 credibility and delved deeply into the circumstances 4 surrounding the defendant's prior involvement with heroin. 5 Id. 6 defendant's case was badly damaged by the erroneous 7 admission of the evidence, and because the defense may have 8 felt that there was no alternative but to have the defendant 9 testify as a result, we granted the defendant a new trial. 10 11 Id. at 661 (brackets in original). Specifically, Because the record in Colon demonstrated that the See id. at 661-62. Here, we need not resolve the issue of whether Colon 12 necessitates that we measure the strength of the 13 Government s case without reference to either Siddiqui s 14 cross-examination or the admission of the incriminating 15 statements she made at Bagram. 16 the government s case against Siddiqui can only be fairly 17 characterized as devastating. 18 Even without that evidence, We also disagree with Siddiqui s claim that Colon 19 requires a new trial because the admission of the 404(b) 20 evidence forced her to testify and her defense was badly 21 damaged by that testimony. 22 introduction of the 404(b) evidence here did not necessitate Unlike in Colon, the 26 1 Siddiqui s testimony from an objective, strategic 2 standpoint. 3 the issue of whether Siddiqui harbored an anti-American 4 animus, given that numerous witnesses testified as part of 5 the government s case-in-chief that she made anti-American 6 statements during the shooting incident. Further, even 7 after the introduction of the 404(b) evidence, defense 8 counsel advised Siddiqui not to testify, we presume in large 9 part because her testimony would open the door to the The 404(b) evidence was somewhat cumulative on 10 admission of the incriminating statements she made while 11 recovering at Bagram. 12 make an otherwise harmless error harmful based on her simple 13 assertion that the error compelled her to testify. 14 15 16 17 C. Denial of Defense Counsel s Application to Keep Siddiqui from Testifying 18 the right to testify in their own defense. 19 Arkansas, 483 U.S. 44, 49 (1987); see Brown v. Artuz, 124 20 F.3d 73, 76 (2d Cir. 1997). 21 essential to due process of law in a fair adversary 22 process. 23 Cir. 2011) (internal quotation marks omitted). 24 because the most important witness for the defense in many Colon does not allow a defendant to It is well established that criminal defendants have Rock v. This right . . . is . . . Bennett v. United States, 663 F.3d 71, 84 (2d 27 That is 1 criminal cases is the defendant himself, and he has the 2 right to present his own version of events in his own 3 words. 4 testify remains at all times with the defendant; defense 5 counsel, though charged with an obligation to apprise the 6 defendant of the benefits and risks of testifying, cannot 7 make the decision, regardless of tactical considerations. 8 Brown, 124 F.3d at 77-78. 9 Rock, 483 U.S. at 52. The ultimate decision to Siddiqui s counsel does not challenge these clearly 10 established principles. 11 exception to the general rule, arguing that in some cases a 12 defendant may be competent to stand trial yet incompetent to 13 exercise her right to testify without the approval of 14 defense counsel. 15 Instead, she urges us to craft an In support of her argument, counsel relies heavily on 16 the Supreme Court s decision in Indiana v. Edwards, 554 U.S. 17 164 (2008). 18 determine that a defendant who is competent to stand trial 19 may nonetheless be incapable of representing himself at 20 trial and may thus insist that the defendant have trial 21 counsel. 22 defendant may not possess the ability to execute tasks such There, the Court held that a state may Id. at 167. The Court noted that a mentally ill 28 1 as organizing a defense, arguing points of law, and 2 questioning witnesses. 3 that a prolonged spectacle could result from such a 4 defendant representing himself, and that spectacle would 5 undercut the Constitution s goal of providing a fair trial. 6 Id. at 177. 7 Id. at 176-77. It further observed Counsel s reliance on Edwards is misplaced. First, as 8 three other circuits have recognized, Edwards holds that a 9 court may require that trial counsel appear on behalf of a 10 mentally ill defendant, not that it must do so. See United 11 States v. Turner, 644 F.3d 713, 724 (8th Cir. 2011); United 12 States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); United 13 States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009). 14 But even if Edwards mandated trial courts to require trial 15 counsel for a discrete group of mentally ill defendants, the 16 case still would have no application here. 17 dictates that the mental capacity needed to conduct an 18 entire trial is much greater than the mental capacity 19 required to play the more limited role of witness on one s 20 own behalf. 21 version of events before a jury is more fundamental to a 22 personal defense than the right of self-representation. Common sense Moreover, the defendant s right to air her 29 1 Rock, 483 U.S. at 52. 2 significantly support, let alone compel, the conclusion that 3 a district court may prevent a mentally ill defendant from 4 testifying on her own behalf if defense counsel moves to 5 keep the defendant off the stand. 6 As such, Edwards does not We question whether the Constitution permits a finding 7 that a criminal defendant is competent to stand trial, yet 8 incompetent to determine whether to testify on her own 9 behalf. But we need not decide that question today. Here, 10 the district court went to extraordinary lengths to ensure 11 that Siddiqui understood the implications of testifying and 12 had the capacity to testify. 13 daylight between the standards governing a defendant's 14 capacity to stand trial and those for assessing her capacity 15 to determine whether to testify (and then, actually to 16 testify), we would find no reason to upset the district 17 court's implicit determination that Siddiqui did in fact 18 have the requisite capacity to make the latter decision 19 here. 20 defendants' decisions to testify was a poor one, does not 21 alter our analysis. Even were we to discern any That Siddiqui's choice to testify like many See Brown, 124 F.3d at 77-78. 22 30 1 2 3 4 D. Voluntariness of Siddiqui s un-Mirandized statements at Bagram 5 finding that the incriminating, un-Mirandized statements she 6 gave to two members of the FBI security team while she was 7 hospitalized at Bagram Airfield were voluntary and thus 8 could be used in the government s rebuttal case after 9 Siddiqui testified. Siddiqui contends that the district court erred in Prior to Siddiqui s testimony, the 10 court held a hearing to determine the voluntariness of the 11 statements. 12 and the district court s ruling credited their testimony. 13 Their testimony established the following. 14 At that hearing, the two FBI agents testified, During the course of her stay at Bagram, Siddiqui was 15 tethered to her bed in soft restraints to prevent her 16 escape.13 17 best they could and never denied her access to the restroom, 18 food, water, or medical attention. 19 access to a medical call button that allowed her to contact 20 the hospital s medical staff directly; therefore, she was The agents endeavored to meet Siddiqui s needs as 13 Further, Siddiqui had 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 not entirely dependent on the agents to meet her basic 2 needs. 3 medicated, she was coherent, lucid, and able to carry on a 4 conversation. 5 Although Siddiqui was at times in pain and Special Agent Angela Sercer spent the most time with 6 Siddiqui. She would arrive in the morning and stay 7 approximately eight hours in Siddiqui s room. 8 arriving, she would ask Siddiqui if she wanted to talk; if 9 Siddiqui indicated she did not, Sercer would remain quietly Upon 10 in the room as a member of Siddiqui s security detail. 11 Although the topic of the July 18th shooting did come up, 12 Sercer s primary objective was to gather intelligence 13 related to another investigation of Siddiqui commenced years 14 earlier. 15 Sercer and indicated that she enjoyed their discussions. 16 Special Agent Bruce Kamerman spent significantly less time 17 with Siddiqui. 18 interviewing Siddiqui, supervisors instructed Kamerman to 19 continue the dialog when Siddiqui made unsolicited 20 incriminating statements to him. 21 to Kamerman that she was unwilling to talk. 22 gave Siddiqui Miranda warnings. Siddiqui was generally receptive to speaking with Although he was not initially tasked with 32 Siddiqui never indicated Neither agent 1 Statements taken from a defendant in violation of 2 Miranda may not be introduced by the government during its 3 case in chief. 4 (2d Cir. 2008). 5 truthfully or suffer the consequences, the government may 6 introduce un-Mirandized statements to impeach the 7 defendant s testimony. 8 omitted). 9 defendant s involuntary statements. 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 See, e.g., Mincey v. 10 Arizona, 437 U.S. 385, 397-98 (1978); see also United States 11 v. Khalil, 214 F.3d 111, 121-22 (2d Cir. 2000). 12 Siddiqui testified at trial, the government was free to 13 introduce the statements she made at Bagram Airfield so long 14 as those statements were voluntary. 15 Because The government bears the burden of demonstrating that 16 the defendant s statements were voluntary. See United 17 States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); United 18 States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). 19 determine whether a defendant s statements were made 20 voluntarily, courts look to the totality of the 21 circumstances surrounding the statements. 22 F.2d at 99. To Anderson, 929 Relevant factors . . . include the accused s 33 1 age, his lack of education or low intelligence, the failure 2 to give Miranda warnings, the length of detention, the 3 nature of the interrogation, and any use of physical 4 punishment. Campaneria v. Reid, 891 F.2d 1014, 1020 (2d 5 Cir. 1989). A defendant s mental vulnerability also bears 6 on the analysis. 7 164 (1986). 8 9 See Colorado v. Connelly, 479 U.S. 157, A number of decisions have assessed the voluntariness of a defendant s statements where the defendant was in 10 medical distress. For example, in Mincy, 437 U.S. at 398- 11 400, the Supreme Court held that a defendant s statements to 12 police were involuntary where the defendant (1) arrived at 13 the hospital a few hours before the interrogation depressed 14 almost to the point of coma ; (2) suffered unbearable 15 pain; (3) was unable to think coherently; (4) was 16 encumbered by tubes, needles, and [a] breathing apparatus ; 17 (5) expressed his desire that the interrogation cease 18 numerous times to no avail; and (6) was falling in and out 19 of consciousness. 20 hospitalized defendant s statements as voluntary where the 21 defendant was lucid and police conduct was not overbearing. 22 See Khalil, 214 F.3d at 121-22; Pagan v. Keane, 984 F.2d 61, 23 63 (2d Cir. 1993); Campaneria, 891 F.2d at 1019-20. By contrast, courts tend to view a 34 1 We review the factual findings underpinning the 2 district court s voluntariness determination for clear error 3 while subjecting the ultimate conclusion that a defendant s 4 statements were voluntarily to de novo review. 5 214 F.3d at 122; see also United States v. Pettigrew, 468 6 F.3d 626, 633 (10th Cir. 2006); United States v. Bell, 367 7 F.3d 452, 460-61 (5th Cir. 2004). 8 error in the district court s determination that Siddiqui s 9 statements were voluntary. See Khalil, Doing so, we find no Although no Miranda warnings 10 were given and Siddiqui was kept in soft restraints for the 11 duration of her hospital stay, the agents conduct was not 12 overbearing or abusive. 13 endeavored to meet her basic needs. 14 freely with the agents, and when she indicated that she did 15 not want to engage in conversation, Special Agent Sercer sat 16 quietly in her room. 17 having earned her undergraduate degree from Massachusetts 18 Institute of Technology and a doctorate from Brandeis 19 University. 20 Campaneria, Siddiqui was lucid and able to engage the agents 21 in coherent conversation despite the pain attendant to her 22 injury. To the contrary, the agents Siddiqui conversed Further, Siddiqui is highly educated, Most importantly, just as in Khalil, Pagan, and 35 1 Thus, the district court did not err in allowing the 2 government to introduce the statements Siddiqui made while 3 recuperating at Bagram Airfield to rebut her trial 4 testimony. 5 6 7 8 E. Application of the Terrorism Enhancement to Siddiqui s Sentence 9 district court s application of the terrorism enhancement Finally, we address Siddiqui s challenge to the 10 under U.S.S.G. § 3A1.4. 11 the defendant s offense level and elevates the defendant s 12 criminal history category to category six if the defendant s 13 offense is a felony that involved, or was intended to 14 promote, a federal crime of terrorism. 15 crime of terrorism is an offense that is calculated to 16 influence or affect the conduct of government by 17 intimidation or coercion, or to retaliate against government 18 conduct ; and is a violation of any one of a number of 19 enumerated statutes, including 18 U.S.C. §§ 1114 and 2332. 20 U.S.S.G. § 3A1.4 app. n. 1; 18 U.S.C. § 2332b(g)(5). 21 The enhancement increases by twelve Id. A federal The district court found that Siddiqui s offenses were 22 calculated to influence or affect government conduct and 23 that they were calculated to retaliate against government 24 conduct. As to the former, the court determined that 36 1 Siddiqui s offenses were calculated to influence or affect 2 by intimidation the government s fulfillment of its official 3 duties including, among other things, the interview team s 4 efforts to interview . . . and . . . detain her. 5 The court, pointing to statements Siddiqui made while in 6 Afghan custody, determined that Siddiqui began scheming to 7 avoid transfer to American custody on July 17, 2008, and 8 that the scheming came to fruition when Siddiqui gained 9 control of the Chief Warrant Officer s rifle and fired at 10 11 JA 2848. the American interview team. In support of the latter finding, the district court 12 highlighted testimony regarding various anti-American 13 statements Siddiqui made while in custody. 14 estimation, these statements demonstrated Siddiqui s intent 15 to retaliate against the United States government. 16 In the court s Siddiqui argues that the district court erred in applying 17 the enhancement. She claims that application of both the 18 terrorism enhancement and the Guidelines official victim 19 enhancement resulted in impermissible double counting. 20 also contends that her conduct was not calculated, as 21 required by the plain language of the enhancement. 22 According to Siddiqui, long-term planning is a necessary 37 She 1 condition to finding that a defendant s offense was 2 calculated. 3 Siddiqui s contention that the district court committed 4 error in applying both the official victim enhancement and 5 the terrorism enhancement is devoid of merit. 6 court calculating a Guidelines sentence may apply multiple 7 [enhancements] based on the same underlying conduct, 8 especially where each of the multiple [enhancements] . . . 9 serves a distinct purpose or represents a discrete harm. 10 United States v. Maloney, 406 F.3d 149, 152, 153 (2d Cir. 11 2005). 12 address discrete harms resulting from Siddiqui s conduct the 13 official victim enhancement deals with the selection of 14 victims based on their status as government employees, and 15 the terrorism enhancement addresses those acts that are 16 calculated to influence government conduct or to retaliate 17 against a government. 18 Embassies in East Africa, 552 F.3d 93, 153 (2d Cir. 2008). 19 Accordingly, application of both the terrorism and official 20 victim enhancements does not constitute impermissible double 21 counting. See id. [A] district The terrorism and official victim enhancements both In re Terrorism Bombings of U.S. 22 38 1 Resolution of Siddiqui s challenge to the district 2 court s finding that her offense was calculated merits 3 more discussion. 4 enhancement to apply, the defendant s offense must be 5 calculated to influence or affect the conduct of government 6 by intimidation or coercion, or to retaliate against 7 government conduct. 8 added). 9 words used their common meaning. 10 590 F.3d 93, 137 (2d Cir. 2009). 11 planned for whatever reason or motive to achieve the stated 12 object. 13 137 ( The conventional meaning of calculated is devised 14 with forethought. ). 15 As previously noted, for the terrorism 18 U.S.C. § 2332b(g)(5)(A) (emphasis When we interpret the Guidelines, we giv[e] the United States v. Stewart, Calculated means Awan, 607 F.3d at 317; see Stewart, 590 F.3d at Many courts (including this one) interpret calculated 16 as nearly synonymous with intentional. 17 F.3d at 137; see also United States v. Chandia, 675 F.3d 18 329, 333 n.3 (4th Cir. 2012); United States v. El-Mezain, 19 664 F.3d 467, 571 (5th Cir. 2011); United States v. 20 Jayyousi, 657 F.3d 1085, 1115 (11th Cir. 2011). 21 defendant s purpose in committing an offense is to 22 influence or affect the conduct of government by 39 See Stewart, 590 Thus, if a 1 intimidation or coercion, or to retaliate against government 2 conduct, application of the terrorism enhancement is 3 warranted. 4 (quoting 18 U.S.C. § 2332b(g)(5)(A)). 5 there is no evidence that the defendant sought to influence 6 or affect the conduct of the government, the enhancement is 7 inapplicable. See Stewart, 590 F.3d at 137 (emphasis added) Where, however, Id. (internal quotation marks omitted). 8 Most cases applying the terrorism enhancement have 9 involved conduct that spanned a significantly greater length 10 of time than the conduct here. See, e.g., Awan, 607 F.3d at 11 310-11; United States v. Salim, 549 F.3d 67, 70-71 (2d Cir. 12 2008); In re Terrorist Bombings, 552 F.3d at 103-05 (2d Cir. 13 2008); United States v. Meskini, 319 F.3d 88, 90-91 (2d Cir. 14 2003). 15 calculation, as used in the enhancement, incorporates a 16 long-term planning requirement. 17 term planning is present in many of the cases applying the 18 terrorism enhancement does not make it a condition necessary 19 to finding that a defendant s offense was calculated to 20 influence government conduct or to retaliate against a 21 government. 22 applicable where a defendant acts according to a Relying on this observation, Siddiqui argues that We disagree. That long- Instead, the terrorism enhancement is 40 1 plan whether developed over a long period of time or 2 developed in a span of seconds with the object of 3 influencing government conduct or retaliating against a 4 government. 5 The day before the shooting incident here, Siddiqui 6 repeatedly implored Afghan police officials not to turn her 7 over to American forces. 8 rifle and fired on the American interview team attempting to 9 take her into United States custody the following day. 10 Under these circumstances, the district court did not 11 clearly err14 in its determination that Siddiqui s offense 12 was calculated to influence government conduct i.e, the 13 United States attempts to take Siddiqui into custody by 14 intimidation or coercion. 15 Siddiqui gained control of an M-4 We also find that the district court did not clearly 16 err in determining that Siddiqui s offense was calculated to 17 retaliate against the United States. 18 custody prior to the shooting incident, Siddiqui referred to 19 the United States as invaders, and when queried about the 20 bomb-making documents found in her possession, Siddiqui 14 While in Afghan 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 indicated that the target of those bombs were the 2 foreigners. 3 firing on the American interview team, Siddiqui stated: I 4 am going to kill all you Americans. You are going to die by 5 my blood ; death to America ; and I will kill all you 6 motherfuckers. 7 sufficient factual basis for the district court s conclusion 8 that Siddiqui s offense was calculated to retaliate against 9 the United States. 10 11 12 13 See JA 3022. What s more, shortly after Taken as a whole, this evidence provides a Accordingly, the district court did not err in applying the terrorism enhancement. III. CONCLUSION For the foregoing reasons, and for the reasons provided 14 in the accompanying summary order, Siddiqui s convictions 15 and sentence are hereby affirmed. 42