United States v. Siddiqui *The Clerk of the Court is respectfully directed to amend the caption to conform with the above. **The Honorable Roslynn R. Mauskopf, of the

10-3916-cr
United States v. Siddiqui
*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
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2011 8
9
(Argued: February 10, 2012 Decided: November 5, 2012) 10
Amended: November 15, 2012 11
12
Docket No. 10-3916-cr 13
14
15
UNITED STATES OF AMERICA, 16
17
Appellee, 18
19
–v.– 20
21
AAFIA SIDDIQUI, 22
23
Defendant-Appellant. *
24
25
26
27
Before: 28
29
WESLEY, CARNEY, Circuit Judges, MAUSKOPF, District Judge. **
30
31
Defendant-Appellant Aafia Siddiqui appeals her criminal 32
convictions, entered after a jury trial in the United States 33
District Court for the Southern District of New York 34
(Berman, J.), for attempted murder of United States 35
nationals, attempted murder of United States officers and 36
employees, armed assault of United States officers and 37
employees, assault of United States officers and employees, 38
and use of a firearm during a crime of violence. She also 39

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2
challenges her sentence of eighty-six years’ imprisonment. 1
Siddiqui contends that the district court erred in a number 2
of ways. We address five of Siddiqui’s arguments here:(1) 3
that Count One of the indictment was deficient because the 4
Attorney General failed to timely issue a required 5
certification for prosecution under 18 U.S.C. § 2332, and 6
because the statutes underlying Counts Two through Seven do 7
not apply extraterritorially in an active theater of war; 8
(2) that the district court committed reversible error by 9
admitting, under Federal Rule of Evidence 404(b), documents 10
allegedly found in her possession at the time Afghan 11
officials took her into custody; (3) that the district court 12
erred in allowing her to testify in her own defense despite 13
a request from defense counsel to preclude her from doing so 14
because of her alleged mental illness; (4) that the district 15
court erred in allowing the government to rebut her 16
testimony with un-Mirandized statements she gave to FBI 17
agents while hospitalized at Bagram Airfield because those 18
statements allegedly were not voluntary; and (5) that the 19
district court erred in applying the terrorism enhancement 20
under section 3A1.4 of the United States Sentencing 21
Guidelines. We address Siddiqui’s remaining arguments in an 22
accompanying summary order. 23
24
AFFIRMED. 25
26
27
28
DAWN M. CARDI (Chad L. Edgar, on the brief), Dawn 29
M. Cardi & Associates, New York, NY, for 30
Defendant-Appellant. 31
32
JENNA M. DABBS, JESSE M. FURMAN, Assistant United 33
States Attorneys (Christopher L. Lavigne, 34
Assistant United States Attorney, on the 35
brief), for Preet Bharara, United States 36
Attorney for the Southern District of New 37
York, New York, NY, for Appellee. 38
39
40
41
42
43
44

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3
WESLEY, Circuit Judge: 1
Defendant-Appellant Aafia Siddiqui appeals from a 2
judgment of the United States District Court for the 3
Southern District of New York (Berman, J.) entered on 4
September 23, 2010, convicting her after a jury trial of one 5
count of attempted murder of United States nationals in 6
violation of 18 U.S.C. § 2332(b)(1); one count of attempted 7
murder of United States officers and employees in violation 8
of 18 U.S.C. § 1114(3); one count of armed assault of United 9
States officers and employees in violation of 18 U.S.C. §§ 10
111(a)(1) and (b); one count of using a firearm during a 11
crime of violence in violation of 18 U.S.C. § 924(c); and 12
three counts of assault of United States officers and 13
employees in violation of 18 U.S.C. § 111(a)(1). The 14
district court sentenced her principally to 86 years’ 15
imprisonment. Siddiqui urges this Court to reverse her 16
convictions and, failing that, to vacate her sentence. We 17
address five of the arguments that Siddiqui raises on appeal 18
here and the remaining issues in an accompanying summary 19
order. 20
21
22

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4
I. BACKGROUND 1
A. Offense Conduct 2
Around dusk on July 17, 2008, Afghan National Police 3
(“ANP”) detained Aafia Siddiqui, a United States-educated 4
Pakistani national, in Ghazni City, Afghanistan, on 5
suspicion of attempting to attack the Governor of Ghazni. 6
When police took her into custody, Siddiqui possessed, among 7
other things, various documents that discussed the 8
construction of weapons, referenced a “mass casualty 9
attack,” and listed a number of New York City landmarks. 10
Afghan authorities brought Siddiqui to an ANP facility for 11
questioning. Later that evening, the Governor of Ghazni 12
delivered the materials found in Siddiqui’s possession to 13
the United States Army. 14
The following morning, the United States dispatched a 15
team to the ANP facility with the objective of interviewing 16
Siddiqui and ultimately taking her into American custody. 17
The team–most dressed in military fatigues–consisted of two 18
FBI agents and members of a military special forces unit. 19
Afghan officials brought the team to a poorly lit room 20
partitioned by a yellow curtain. The room was crowded with 21
Afghan officials, and unbeknownst to the Americans, Siddiqui 22
was sequestered unrestrained behind the curtain. 23

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5
The presence of a large number of Afghan officials led 1
members of the American team to believe that they had been 2
brought to the room to discuss the terms of their access to 3
Siddiqui. One of the team members, a Chief Warrant Officer, 4
moved to a chair near the curtain dividing the room. After 5
quickly glancing behind the curtain and seeing nothing, he 6
set down his M-4 rifle and turned to engage the Afghan 7
officials in conversation. Moments later, Siddiqui gained 8
control of the rifle, aimed it at members of the American 9
team, shouted, and fired. The team’s interpreter lunged at 10
and struggled with Siddiqui. As the interpreter wrestled 11
with her, the Chief Warrant Officer drew his sidearm and 12
shot Siddiqui in the stomach. 13
Team members then attempted to restrain Siddiqui, who 14
was fiercely resisting and screaming anti-American 15
statements. One witness recalled Siddiqui stating, “I am 16
going to kill all you Americans. You are going to die by my 17
blood.” Another recounted that Siddiqui yelled “death to 18
America” and “I will kill all you motherfuckers.” 19
Eventually, the Americans were able to subdue Siddiqui 20
enough to begin to render emergency medical aid to her. 21
After providing preliminary treatment at the scene, the 22

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6
Americans transported her to a number of military bases in 1
Afghanistan to undergo surgery and receive further care. On 2
July 19, 2008, American forces moved Siddiqui to Bagram 3
Airfield to recuperate. 4
While recovering at Bagram, Siddiqui was guarded by an 5
FBI team. She was tethered to her hospital bed in soft 6
restraints. During the course of her stay at Bagram, 7
Siddiqui provided a number of incriminating, un-Mirandized 8
statements to two members of the security team. In 9
particular, she (1) asked about the penalty for attempted 10
murder; (2) stated that she had a number of documents in her 11
possession at the time of her arrest and recognized some of 12
them when shown to her; (3) said that she had picked up a 13
rifle with the intention of scaring the American team and 14
escaping; and (4) noted that “spewing” bullets at Americans 15
was a bad thing. 16
The government filed a sealed criminal complaint 17
against Siddiqui in the Southern District of New York on 18
July 31, 2008. On August 4, 2008, the government 19
transferred Siddiqui to the United States for prosecution. 20
A month later, Siddiqui was indicted. 21
22

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7
B. Pre-Trial 1
Soon after the indictment was filed, the district court 2
ordered that Siddiqui undergo psychiatric evaluations of her 3
competence to stand trial. In a report issued on November 4
6, 2008, Dr. Leslie Powers opined that Siddiqui was not 5
currently competent, citing, among other things, Siddiqui’s 6
reports of visual hallucinations. Later, Dr. Powers revised 7
her assessment, finding that Siddiqui was malingering to 8
avoid prosecution. Other experts arrived at the same 9
conclusion, although one expert commissioned by the defense 10
opined that Siddiqui was not competent. The district court 11
held a competency hearing on July 6, 2009. After canvassing 12
the relevant evidence, the court found Siddiqui competent to 13
stand trial. 14
In advance of trial, the district court ruled on a 15
number of motions, some of which are relevant here. 16
Siddiqui first moved to dismiss all of the counts of the 17
indictment. As to Count One, Siddiqui claimed that the 18
Attorney General failed to timely issue the required written 19
certification that her offense (attempted murder of United 20
States nationals) “was intended to coerce, intimidate, or 21

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1The certification was filed on the same day as the indictment.
8
retaliate against a government or a civilian population.” 1
1
18 U.S.C. § 2332(d). Siddiqui also contended that Counts 2
Two through Seven, charging violations of 18 U.S.C. §§ 1114, 3
111, and 924(c), should be dismissed because the statutes do 4
not have extraterritorial application under the 5
circumstances of her case. The district court denied 6
Siddiqui’s motions. 7
The district court also considered the government’s 8
motion in limine to admit certain documents and other 9
evidence recovered from Siddiqui at the time of her arrest 10
by Afghan officials. These documents, some of which were in 11
Siddiqui’s handwriting and bore her fingerprints, referred 12
to attacks on the United States and the construction of 13
various weapons. The court found this evidence admissible 14
pursuant to Federal Rule of Evidence 404(b) to show 15
Siddiqui’s “motive, intent, identity, and knowledge.” In 16
finding the documents admissible, the court rejected the 17
argument that the evidence would cause Siddiqui unfair 18
prejudice, concluding that the documents were no more 19
sensational than the crimes charged. The court also noted 20
that it would instruct the jury that the documents were not 21
to be considered as propensity evidence. 22

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2The 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
C. Trial 1
At trial, the government presented six members of the 2
American interview team who testified that Siddiqui gained 3
control of the Chief Warrant Officer’s rifle and fired at 4
them. Three more witnesses who did not directly observe the 5
shooting testified that they heard M-4 rifle shots. A 6
government expert testified that the fact that no gunpowder 7
residue was found on the curtain hanging in the room did not 8
necessarily indicate that an M-4 had not been fired because 9
someone standing between the curtain and the weapon could 10
have absorbed the residue. The government also introduced 11
the 404(b) documents discussed above. 2
12
The defense put forth a forensic metallurgist who, 13
based on the lack of forensic evidence of a discharge of a 14
M-4 rifle at the crime scene, testified that he did not 15
believe an M-4 had been fired in the room. In particular, 16
he found it implausible that someone could discharge an M-4 17
rifle in a room without bullet fragments or gunpowder 18
residue being recovered by authorities. The defense also 19

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3The government elicited admissions from the officer that he previously
gave inconsistent statements to American investigators.
4Defense 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
introduced deposition testimony of an ANP officer that when 1
Siddiqui was arrested she possessed documents describing how 2
to make explosive devices, among other things, and that 3
while in Afghani custody she made anti-American statements 4
and asked not be turned over to the United States. He also 5
stated that he saw an American soldier walk behind the 6
curtain prior to hearing shots fired, although he did not 7
directly observe the shooting. 3 Significantly, the officer 8
testified that he observed a technician remove two rifle 9
shells from the scene. 10
Against the advice and over the objection of her 11
attorneys, Siddiqui took the stand to testify in her own 12
defense. 4 Though her testimony at times lacked focus, she 13
was able to provide her version of the events that 14
transpired on July 18, 2008. According to Siddiqui, she was 15

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11
sitting behind a curtain in a room at the ANP facility when 1
she heard American voices. She feared being taken into 2
American custody and peeked through an opening in the 3
curtain with the hope of finding an escape route. Siddiqui 4
testified that she was then shot from multiple directions. 5
She stated that she never picked up, aimed, or fired an M-4 6
rifle at the Americans. 7
Siddiqui claimed that she could not confirm that she 8
possessed documents at the time of her arrest in Afghanistan 9
because she was “in a daze.” JA 2371. She stated that the 10
bag in which the documents were found was not hers but 11
rather was given to her. When confronted with the document 12
referencing mass casualty attacks and listing New York City 13
landmarks, Siddiqui testified that it was a “possibility” 14
that the document was in her own handwriting. JA 2372. 15
After the defense rested, the government presented its 16
rebuttal case. Two FBI agents who were members of 17
Siddiqui’s security detail during her recovery at Bagram 18
recounted several incriminating statements that Siddiqui 19
made to them. Before receiving this testimony, the district 20
court held a hearing to determine whether Siddiqui gave 21

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5The 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 cross-
examination, she denied she made the statements.
12
these un-Mirandized statements voluntarily. 5 At that 1
hearing, the two FBI agents testified, as did Siddiqui. The 2
district court determined that Siddiqui’s statements were 3
voluntary. 4
On February 3, 2010, the jury returned a guilty verdict 5
on all counts of the indictment. The district court 6
sentenced Siddiqui on September 23, 2010. In addition to a 7
number of other enhancements, the court applied the 8
terrorism enhancement pursuant to U.S.S.G. § 3A1.4. In 9
applying the enhancement, the court found that Siddiqui’s 10
offense was calculated to influence the conduct of the 11
government by intimidation, namely, attempting to frustrate 12
the interview team’s efforts to detain her. Further, based 13
on a number of anti-American statements Siddiqui made before 14
and at the time of the shooting, the court determined that 15
Siddiqui’s conduct was calculated to retaliate against the 16
United States government. The district court sentenced 17
Siddiqui principally to 86 years’ imprisonment and five 18
years of supervised release. 19
Siddiqui timely appealed her convictions and sentence. 20

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13
II. DISCUSSION 1
A. Denial of Siddiqui’s Motion to Dismiss the Indictment 2
Siddiqui raised below, and now reasserts, several 3
challenges to the indictment. According to Siddiqui, the 4
district court should have dismissed Count One, which 5
charged a violation of 18 U.S.C. § 2332, because the United 6
States Attorney General did not timely issue the 7
certification required by 18 U.S.C. § 2332(d). She also 8
argues that the remaining counts are deficient because the 9
underlying statutes do not apply extraterritorially in an 10
active theater of war. We disagree. 11
Section 2332(d) provides that “[n]o prosecution for any 12
offense described in this section shall be undertaken by the 13
United States except on written certification of the 14
Attorney General . . . [that] such offense was intended to 15
coerce, intimidate, or retaliate against a government or 16
civilian population.” Siddiqui relies on speedy trial 17
principles to conclude that a prosecution is commenced at 18
the time of arrest or the filing of formal charges. But 19
Siddiqui’s argument here encounters an obstacle: the 20
original complaint on which Siddiqui was arrested did not 21
charge a violation of § 2332. The first instrument to do so 22

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14
was the indictment, which was filed the same day the 1
Attorney General issued the § 2332(d) certification. 2
Siddiqui has an answer to the problem. She points out 3
that the statute requires certification prior to a 4
prosecution for an “offense described in this section.” 18 5
U.S.C. § 2332(d) (emphasis added). In her view, the 6
Attorney General is required to issue the certification 7
before an accusatory instrument describing facts that could 8
constitute a violation of § 2332 is filed, regardless of 9
whether that instrument actually charges a violation of 10
§ 2332. Siddiqui reasons that because the criminal 11
complaint filed on July 31, 2008 described conduct 12
proscribed by § 2332, the Attorney General’s certification 13
filed the day of the indictment was untimely. 14
Siddiqui’s argument offers an unusual reading of what 15
appears to be straightforward statutory language—a reading 16
that would undercut the very purpose of the provision. 17
Section 2332(d)’s requirement that the Attorney General 18
issue a certification before “prosecution for any offense 19
described in [§ 2332] shall be undertaken” is most naturally 20
read as a requirement that the Attorney General issue the 21
certification either at the time of or before the filing of 22

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15
the first instrument charging a violation of § 2332. This 1
view furthers the purpose of § 2332(d)—namely, ensuring that 2
the statute reaches only terrorist violence inflicted upon 3
United States nationals, not “[s]imple barroom brawls or 4
normal street crime.” See H.R. Conf. Rep. 99-783, at 87, 5
reprinted in 1986 U.S.C.C.A.N. 1926, 1960. 6
Under Siddiqui’s interpretation of the provision, the 7
Attorney General would have to issue the certification any 8
time someone engaged in conduct that could be covered by the 9
statute. This would deprive the Attorney General of the 10
opportunity to sort through the facts of each case to 11
determine if it merited certification—and prosecution—under 12
the statute. More simply put, Siddiqui’s interpretation 13
would undercut § 2332(d)’s primary objective. Accordingly, 14
the district court did not err in denying Siddiqui’s motion 15
to dismiss Count One of the indictment. 16
Siddiqui next contends that Counts Two through Seven of 17
the indictment should be dismissed because the charging 18

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618 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.
718 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.
818 U.S.C. § 924(c) prohibits the use of a firearm during the commission
of a crime of violence.
16
statutes—18 U.S.C. §§ 1114, 6 111, 7 and 924(c) 8—do not have 1
application extraterritorially “in an active theater of 2
war.” This argument is without merit. 3
“Congress has the authority to ‘enforce its laws beyond 4
the territorial boundaries of the United States.’” United 5
States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (quoting 6
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). The 7
ordinary presumption that laws do not apply 8
extraterritorially has no application to criminal statutes. 9
United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 10
2011). “When the text of a criminal statute is silent, 11
Congressional intent to apply the statute extraterritorially 12
must ‘be inferred from the nature of the offense.’” Id. 13
(quoting United States v. Bowman, 260 U.S. 94, 98 (1922)). 14
The statutes underlying Counts Two through Seven apply 15
extraterritorially. Subsequent to the filing of Siddiqui’s 16
brief, we held that 18 U.S.C. § 1114 applies 17
extraterritorially. Al Kassar, 660 F.3d at 118. We 18

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17
reasoned that “the nature of the offense–protecting U.S. 1
personnel from harm when acting in their official 2
capacity–implies an intent that [the statute] apply outside 3
of the United States.” Id. We see no basis for expecting 4
Congress to have intended to limit these protections to U.S. 5
personnel acting within the United States only. For the 6
same reason, § 111 applies extraterritorially. See United 7
States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir. 1984); 8
see also United States v. Hasan, 747 F. Supp. 2d 642, 685-86 9
(E.D. Va. 2010). Like 18 U.S.C. § 1114, the nature of the 10
offense–protecting United States officers and employees 11
engaged in official duties from harm–implies a Congressional 12
intent that § 111 apply outside of the United States. See 13
Al Kassar, 660 F.3d at 118. 14
As for § 924, which criminalizes the use of a firearm 15
during commission of a crime of violence, every federal 16
court that has considered the issue has given the statute 17
extraterritorial application where, as here, the underlying 18
substantive criminal statutes apply extraterritorially. 19
See, e.g., United States v. Belfast, 611 F.3d 783, 815 (11th 20
Cir. 2010); United States v. Ahmed, No. 10 Cr. 131 (PKC), 21
2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012); United 22

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9Indeed, 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
States v. Mardirossian, 818 F. Supp. 2d 775, 776-77 1
(S.D.N.Y. 2011). We see no reason to quarrel with their 2
conclusions. 3
Siddiqui’s argument that the statutes, even if 4
generally extraterritorial, do not apply “in an active 5
theater of war” is unpersuasive. 9 As the government points 6
out, it would be incongruous to conclude that statutes aimed 7
at protecting United States officers and employees do not 8
apply in areas of conflict where large numbers of officers 9
and employees operate. The district court appropriately 10
denied Siddiqui’s motion to dismiss Counts Two through Seven 11
of the Indictment. 12
B. Admission of Documents under Federal Rule of Evidence 13
404(b) 14
15
The district court admitted documents allegedly found 16
in Siddiqui’s possession that explained the construction and 17

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19
use of various weapons and described a “mass casualty 1
attack” on a number of New York City landmarks for the 2
purpose of demonstrating Siddiqui’s knowledge, motive, and 3
intent. Siddiqui argues that her defense–that she never 4
picked up and fired the Chief Warrant Officer’s 5
rifle–removed those issues from the case and thus admission 6
of the documents was improper. 7
A district court’s evidentiary rulings encounter 8
trouble on appeal only where the district court abuses its 9
discretion. United States v. Mercado, 573 F.3d 138, 141 (2d 10
Cir. 2009). A district court abuses its discretion when 11
its evidentiary rulings are “arbitrary and irrational.” Id. 12
But even when an evidentiary ruling is “manifestly 13
erroneous,” the defendant will not receive a new trial if 14
admission of the evidence was harmless. Cameron v. City of 15
New York, 598 F.3d 50, 61 (2d Cir. 2010). 16
Federal Rule of Evidence 404(b) provides that evidence 17
of a defendant’s prior crimes, wrongs, or other acts cannot 18
be used to prove that a defendant was a bad fellow and most 19
likely remains one–that he has a criminal nature or 20
propensity and the acts in question are consistent with his 21
nature or tendency towards crime. However, this type of 22

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10Of 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
evidence may be admissible for other legitimate purposes, 1
such as demonstrating motive, opportunity, identity, intent, 2
and knowledge. Id. Under our “inclusionary” approach, all 3
“other act” evidence is generally admissible unless it 4
serves the sole purpose of showing a defendant’s bad 5
character. United States v. Curley, 639 F.3d 50, 56 (2d 6
Cir. 2011). 10
7
A defendant may, however, forestall the admission of 8
Rule 404(b) evidence by advancing a theory that makes clear 9
that the object the 404(b) evidence seeks to establish, 10
while technically at issue, is not really in dispute. See 11
United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). 12
For example, a defense theory that the defendant did not 13
commit the charged act effectively removes issues of intent 14
and knowledge from the case. See id at 657; United States 15
v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988). Siddiqui’s 16
defense was just that–“I didn’t fire the M-4.” 17
But even assuming that Siddiqui’s defense theory 18
effectively removed any issue of her intent or knowledge, 19
the documentary evidence remained relevant to demonstrate 20

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21
Siddiqui’s motive. Motive has been variously defined as 1
“the reason that nudges the will and prods the mind to 2
indulge the criminal intent,” United States v. Benton, 637 3
F.2d 1052, 1056 (5th Cir. 1981) (internal quotation marks 4
omitted); “the rationale for an actor’s particular conduct,” 5
United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010); and 6
“an emotion or state of mind that prompts a person to act in 7
a particular way,” Charles Alan Wright and Kenneth W. 8
Graham, Jr., Federal Practice and Procedure: Federal Rules 9
of Evidence § 5240. “Although it does not bear directly on 10
the charged elements of a crime, evidence offered to prove 11
motive is commonly admitted.” United States v. Salameh, 152 12
F.3d 88, 111 (2d Cir. 1998). And unlike issues of knowledge 13
and intent, the defendant’s motive–an explanation of why the 14
defendant would engage in the charged conduct–becomes highly 15
relevant when the defendant argues that he did not commit 16
the crime. 17
For instance, in Salameh, the defendants were charged 18
with a conspiracy to bomb the World Trade Center. Id. at 19
108. The district court admitted documents possessed by the 20
defendants that “bristled with strong anti-American 21
sentiment.” Id. at 111. On appeal, we found those 22

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11In 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
documents admissible to demonstrate the conspiracy’s motive. 1
Id. 2
Here, the documents the government introduced pursuant 3
to Rule 404(b) detail, among other things, the construction 4
of fertilizer and plastic explosives. One document in 5
particular discusses radioactive bombs, biological weapons, 6
and chemical weapons. That document also contains the 7
phrase “mass casualty attack” and lists a number of New York 8
City landmarks, including Grand Central Terminal, the Empire 9
State Building, the Statute of Liberty, and the Brooklyn 10
Bridge. Taken together, these documents, which were in 11
Siddiqui’s possession at the time Afghan officials took her 12
into custody 11 and some of which were in her handwriting, 13
supply a plausible rationale for why Siddiqui would fire a 14
rifle at the American interview team, namely, she harbored 15
an anti-American animus. This motive was relevant to the 16
ultimate issue in dispute at trial–whether Siddiqui picked 17
up and fired the M-4 rifle at the American interview team. 18

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12Although 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
Accordingly, the district court did not abuse its discretion 1
in admitting the documents pursuant to Rule 404(b). 12
2
But even if we agreed with Siddiqui that the district 3
court abused its discretion in admitting the documents, that 4
would not end the matter. There would remain the question 5
of whether the error was harmless. An evidentiary error is 6
harmless “if the appellate court can conclude with fair 7
assurance that the evidence did not substantially influence 8
the jury.” United States v. Cadet, 664 F.3d 27, 32 (2d Cir. 9
2011) (internal quotation marks omitted). Several factors 10
bear on the inquiry: whether the evidence was tied to “an 11
issue that [was] plainly critical to the jury’s decision”; 12
“whether that [evidence] was material to the establishment 13
of the critical fact or whether it was instead 14
corroborat[ive] and cumulative”; and “whether the wrongly 15
admitted evidence was emphasized in arguments to the jury.” 16
Curley, 639 F.3d at 58 (internal quotation marks omitted). 17
But the most critical factor is “the strength of the 18
government’s case.” Id. (internal quotation marks omitted). 19

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24
Here, although the government by its own admission 1
“repeatedly referenced the documents introduced at trial,” 2
Government Br. 37, the jury also had ample testimony before 3
it regarding anti-American statements Siddiqui made at the 4
time of the shooting from which it could conclude that 5
Siddiqui harbored an animus towards the United States. And 6
most importantly, the strength of the government’s case was 7
overwhelming. Among other evidence, six members of the 8
American interview team testified that Siddiqui gained 9
control of the Chief Warrant Officer’s rifle and fired at 10
them. Another three government witnesses who did not 11
observe the shooting testified that they heard M-4 rifle 12
shots. Moreover, after Siddiqui testified, the government 13
introduced the testimony of two FBI agents who had 14
interviewed Siddiqui. According to those agents, Siddiqui, 15
among other things, (1) asked what the penalty for attempted 16
murder was; and (2) noted that “spewing” bullets at 17
Americans was a bad thing. 18
Siddiqui counters that her forensic expert’s opinion 19
that an M-4 rifle had not been fired in the room effectively 20
neutralized the government’s case against her. However, 21
this forensic expert’s testimony was undermined by one of 22

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25
Siddiqui’s own witnesses, who testified that two rifle 1
shells were recovered from the room, and by a government 2
expert’s testimony that the absence of certain forensic 3
evidence from the room was not necessarily inconsistent with 4
the firing of a weapon. 5
Siddiqui also asserts that our decision in United 6
States v. Colon, 880 F.2d 650 (2d Cir. 1989), requires us to 7
grant her a new trial. She argues that Colon mandates that 8
we assess the strength of the government’s case without 9
reference to the government’s cross-examination of Siddiqui 10
or the incriminating statements she made at Bagram and that 11
Colon requires a new trial because the admission of the 12
documents forced her to testify and she was harmed by doing 13
so. We disagree. 14
In Colon, the defendant was charged with heroin 15
distribution. Id. at 652. His defense was that he did not 16
engage in the charged act. Id. at 658. Nevertheless, the 17
district court admitted evidence concerning two prior 18
instances in which the defendant had sold heroin to 19
demonstrate knowledge and intent–an obvious error. Id. at 20
656. The defendant then testified, and, in the words of his 21
counsel, "the [Assistant] U.S. Attorney made a jackass out 22

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26
of him." Id. at 661 (brackets in original). Specifically, 1
the cross-examination cast doubt on the defendant's 2
credibility and delved deeply into the circumstances 3
surrounding the defendant's prior involvement with heroin. 4
Id. Because the record in Colon demonstrated that the 5
defendant's case was badly damaged by the erroneous 6
admission of the evidence, and because the defense may have 7
felt that there was no alternative but to have the defendant 8
testify as a result, we granted the defendant a new trial. 9
See id. at 661-62. 10
Here, we need not resolve the issue of whether Colon 11
necessitates that we measure the strength of the 12
Government’s case without reference to either Siddiqui’s 13
cross-examination or the admission of the incriminating 14
statements she made at Bagram. Even without that evidence, 15
the government’s case against Siddiqui can only be fairly 16
characterized as devastating. 17
We also disagree with Siddiqui’s claim that Colon 18
requires a new trial because the admission of the 404(b) 19
evidence forced her to testify and her defense was badly 20
damaged by that testimony. Unlike in Colon, the 21
introduction of the 404(b) evidence here did not necessitate 22

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27
Siddiqui’s testimony from an objective, strategic 1
standpoint. The 404(b) evidence was somewhat cumulative on 2
the issue of whether Siddiqui harbored an anti-American 3
animus, given that numerous witnesses testified as part of 4
the government’s case-in-chief that she made anti-American 5
statements during the shooting incident. Further, even 6
after the introduction of the 404(b) evidence, defense 7
counsel advised Siddiqui not to testify, we presume in large 8
part because her testimony would open the door to the 9
admission of the incriminating statements she made while 10
recovering at Bagram. Colon does not allow a defendant to 11
make an otherwise harmless error harmful based on her simple 12
assertion that the error compelled her to testify. 13
C. Denial of Defense Counsel’s Application to Keep Siddiqui 14
from Testifying 15
16
It is well established that criminal defendants have 17
the right to testify in their own defense. Rock v. 18
Arkansas, 483 U.S. 44, 49 (1987); see Brown v. Artuz, 124 19
F.3d 73, 76 (2d Cir. 1997). “This right . . . is . . . 20
essential to due process of law in a fair adversary 21
process.” Bennett v. United States, 663 F.3d 71, 84 (2d 22
Cir. 2011) (internal quotation marks omitted). That is 23
because “the most important witness for the defense in many 24

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28
criminal cases is the defendant himself,” and he has the 1
“right to present his own version of events in his own 2
words.” Rock, 483 U.S. at 52. The ultimate decision to 3
testify remains at all times with the defendant; defense 4
counsel, though charged with an obligation to apprise the 5
defendant of the benefits and risks of testifying, cannot 6
make the decision, regardless of tactical considerations. 7
Brown, 124 F.3d at 77-78. 8
Siddiqui’s counsel does not challenge these clearly 9
established principles. Instead, she urges us to craft an 10
exception to the general rule, arguing that in some cases a 11
defendant may be competent to stand trial yet incompetent to 12
exercise her right to testify without the approval of 13
defense counsel. 14
In support of her argument, counsel relies heavily on 15
the Supreme Court’s decision in Indiana v. Edwards, 554 U.S. 16
164 (2008). There, the Court held that a state may 17
determine that a defendant who is competent to stand trial 18
may nonetheless be incapable of representing himself at 19
trial and may thus insist that the defendant have trial 20
counsel. Id. at 167. The Court noted that a mentally ill 21
defendant may not possess the ability to execute tasks such 22

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29
as organizing a defense, arguing points of law, and 1
questioning witnesses. Id. at 176-77. It further observed 2
that a prolonged spectacle could result from such a 3
defendant representing himself, and that spectacle would 4
undercut the Constitution’s goal of providing a fair trial. 5
Id. at 177. 6
Counsel’s reliance on Edwards is misplaced. First, as 7
three other circuits have recognized, Edwards holds that a 8
court may require that trial counsel appear on behalf of a 9
mentally ill defendant, not that it must do so. See United 10
States v. Turner, 644 F.3d 713, 724 (8th Cir. 2011); United 11
States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); United 12
States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009). 13
But even if Edwards mandated trial courts to require trial 14
counsel for a discrete group of mentally ill defendants, the 15
case still would have no application here. Common sense 16
dictates that the mental capacity needed to conduct an 17
entire trial is much greater than the mental capacity 18
required to play the more limited role of witness on one’s 19
own behalf. Moreover, the defendant’s right to air her 20
version of events before a jury is “more fundamental to a 21
personal defense than the right of self-representation.” 22

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30
Rock, 483 U.S. at 52. As such, Edwards does not 1
significantly support, let alone compel, the conclusion that 2
a district court may prevent a mentally ill defendant from 3
testifying on her own behalf if defense counsel moves to 4
keep the defendant off the stand. 5
We question whether the Constitution permits a finding 6
that a criminal defendant is competent to stand trial, yet 7
incompetent to determine whether to testify on her own 8
behalf. But we need not decide that question today. Here, 9
the district court went to extraordinary lengths to ensure 10
that Siddiqui understood the implications of testifying and 11
had the capacity to testify. Even were we to discern any 12
daylight between the standards governing a defendant's 13
capacity to stand trial and those for assessing her capacity 14
to determine whether to testify (and then, actually to 15
testify), we would find no reason to upset the district 16
court's implicit determination that Siddiqui did in fact 17
have the requisite capacity to make the latter decision 18
here. That Siddiqui's choice to testify—like many 19
defendants' decisions to testify—was a poor one, does not 20
alter our analysis. See Brown, 124 F.3d at 77-78. 21
22

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13These 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
D. Voluntariness of Siddiqui’s un-Mirandized statements at 1
Bagram 2
3
Siddiqui contends that the district court erred in 4
finding that the incriminating, un-Mirandized statements she 5
gave to two members of the FBI security team while she was 6
hospitalized at Bagram Airfield were voluntary and thus 7
could be used in the government’s rebuttal case after 8
Siddiqui testified. Prior to Siddiqui’s testimony, the 9
court held a hearing to determine the voluntariness of the 10
statements. At that hearing, the two FBI agents testified, 11
and the district court’s ruling credited their testimony. 12
Their testimony established the following. 13
During the course of her stay at Bagram, Siddiqui was 14
tethered to her bed in soft restraints to prevent her 15
escape. 13 The agents endeavored to meet Siddiqui’s needs as 16
best they could and never denied her access to the restroom, 17
food, water, or medical attention. Further, Siddiqui had 18
access to a medical call button that allowed her to contact 19
the hospital’s medical staff directly; therefore, she was 20

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32
not entirely dependent on the agents to meet her basic 1
needs. Although Siddiqui was at times in pain and 2
medicated, she was coherent, lucid, and able to carry on a 3
conversation. 4
Special Agent Angela Sercer spent the most time with 5
Siddiqui. She would arrive in the morning and stay 6
approximately eight hours in Siddiqui’s room. Upon 7
arriving, she would ask Siddiqui if she wanted to talk; if 8
Siddiqui indicated she did not, Sercer would remain quietly 9
in the room as a member of Siddiqui’s security detail. 10
Although the topic of the July 18th shooting did come up, 11
Sercer’s primary objective was to gather intelligence 12
related to another investigation of Siddiqui commenced years 13
earlier. Siddiqui was generally receptive to speaking with 14
Sercer and indicated that she enjoyed their discussions. 15
Special Agent Bruce Kamerman spent significantly less time 16
with Siddiqui. Although he was not initially tasked with 17
interviewing Siddiqui, supervisors instructed Kamerman to 18
“continue the dialog” when Siddiqui made unsolicited 19
incriminating statements to him. Siddiqui never indicated 20
to Kamerman that she was unwilling to talk. Neither agent 21
gave Siddiqui Miranda warnings. 22

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33
Statements taken from a defendant in violation of 1
Miranda may not be introduced by the government during its 2
case in chief. United States v. Douglas, 525 F.3d 225, 248 3
(2d Cir. 2008). But because a defendant “must testify 4
truthfully or suffer the consequences,” the government may 5
introduce un-Mirandized statements to impeach the 6
defendant’s testimony. Id. (internal quotation marks 7
omitted). The government cannot, however, introduce a 8
defendant’s involuntary statements. See, e.g., Mincey v. 9
Arizona, 437 U.S. 385, 397-98 (1978); see also United States 10
v. Khalil, 214 F.3d 111, 121-22 (2d Cir. 2000). Because 11
Siddiqui testified at trial, the government was free to 12
introduce the statements she made at Bagram Airfield so long 13
as those statements were voluntary. 14
The government bears the burden of demonstrating that 15
the defendant’s statements were voluntary. See United 16
States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); United 17
States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). To 18
determine whether a defendant’s statements were made 19
voluntarily, courts look to the totality of the 20
circumstances surrounding the statements. Anderson, 929 21
F.2d at 99. “Relevant factors . . . include the accused’s 22

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34
age, his lack of education or low intelligence, the failure 1
to give Miranda warnings, the length of detention, the 2
nature of the interrogation, and any use of physical 3
punishment.” Campaneria v. Reid, 891 F.2d 1014, 1020 (2d 4
Cir. 1989). A defendant’s mental vulnerability also bears 5
on the analysis. See Colorado v. Connelly, 479 U.S. 157, 6
164 (1986). 7
A number of decisions have assessed the voluntariness 8
of a defendant’s statements where the defendant was in 9
medical distress. For example, in Mincy, 437 U.S. at 398- 10
400, the Supreme Court held that a defendant’s statements to 11
police were involuntary where the defendant (1) arrived at 12
the hospital a few hours before the interrogation “depressed 13
almost to the point of coma”; (2) suffered “unbearable” 14
pain; (3) was unable to think coherently; (4) was 15
“encumbered by tubes, needles, and [a] breathing apparatus”; 16
(5) expressed his desire that the interrogation cease 17
numerous times to no avail; and (6) was falling in and out 18
of consciousness. By contrast, courts tend to view a 19
hospitalized defendant’s statements as voluntary where the 20
defendant was lucid and police conduct was not overbearing. 21
See Khalil, 214 F.3d at 121-22; Pagan v. Keane, 984 F.2d 61, 22
63 (2d Cir. 1993); Campaneria, 891 F.2d at 1019-20. 23

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35
We review the factual findings underpinning the 1
district court’s voluntariness determination for clear error 2
while subjecting the ultimate conclusion that a defendant’s 3
statements were voluntarily to de novo review. See Khalil, 4
214 F.3d at 122; see also United States v. Pettigrew, 468 5
F.3d 626, 633 (10th Cir. 2006); United States v. Bell, 367 6
F.3d 452, 460-61 (5th Cir. 2004). Doing so, we find no 7
error in the district court’s determination that Siddiqui’s 8
statements were voluntary. Although no Miranda warnings 9
were given and Siddiqui was kept in soft restraints for the 10
duration of her hospital stay, the agents’ conduct was not 11
overbearing or abusive. To the contrary, the agents 12
endeavored to meet her basic needs. Siddiqui conversed 13
freely with the agents, and when she indicated that she did 14
not want to engage in conversation, Special Agent Sercer sat 15
quietly in her room. Further, Siddiqui is highly educated, 16
having earned her undergraduate degree from Massachusetts 17
Institute of Technology and a doctorate from Brandeis 18
University. Most importantly, just as in Khalil, Pagan, and 19
Campaneria, Siddiqui was lucid and able to engage the agents 20
in coherent conversation despite the pain attendant to her 21
injury. 22

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36
Thus, the district court did not err in allowing the 1
government to introduce the statements Siddiqui made while 2
recuperating at Bagram Airfield to rebut her trial 3
testimony. 4
E. Application of the Terrorism Enhancement to Siddiqui’s 5
Sentence 6
7
Finally, we address Siddiqui’s challenge to the 8
district court’s application of the terrorism enhancement 9
under U.S.S.G. § 3A1.4. The enhancement increases by twelve 10
the defendant’s offense level and elevates the defendant’s 11
criminal history category to category six if the defendant’s 12
offense “is a felony that involved, or was intended to 13
promote, a federal crime of terrorism.” Id. A “federal 14
crime of terrorism” is an offense that “is calculated to 15
influence or affect the conduct of government by 16
intimidation or coercion, or to retaliate against government 17
conduct”; and is a violation of any one of a number of 18
enumerated statutes, including 18 U.S.C. §§ 1114 and 2332. 19
U.S.S.G. § 3A1.4 app. n. 1; 18 U.S.C. § 2332b(g)(5). 20
The district court found that Siddiqui’s offenses were 21
calculated to influence or affect government conduct and 22
that they were calculated to retaliate against government 23
conduct. As to the former, the court determined that 24

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37
Siddiqui’s offenses were “calculated to influence or affect 1
by intimidation the government’s fulfillment of its official 2
duties including, among other things, the interview team’s 3
efforts to interview . . . and . . . detain her.” JA 2848. 4
The court, pointing to statements Siddiqui made while in 5
Afghan custody, determined that Siddiqui began scheming to 6
avoid transfer to American custody on July 17, 2008, and 7
that the scheming came to fruition when Siddiqui gained 8
control of the Chief Warrant Officer’s rifle and fired at 9
the American interview team. 10
In support of the latter finding, the district court 11
highlighted testimony regarding various anti-American 12
statements Siddiqui made while in custody. In the court’s 13
estimation, these statements demonstrated Siddiqui’s intent 14
to retaliate against the United States government. 15
Siddiqui argues that the district court erred in applying 16
the enhancement. She claims that application of both the 17
terrorism enhancement and the Guidelines’ official victim 18
enhancement resulted in impermissible double counting. She 19
also contends that her conduct was not “calculated,” as 20
required by the plain language of the enhancement. 21
According to Siddiqui, long-term planning is a necessary 22

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38
condition to finding that a defendant’s offense was 1
“calculated.” 2
Siddiqui’s contention that the district court committed 3
error in applying both the official victim enhancement and 4
the terrorism enhancement is devoid of merit. “[A] district 5
court calculating a Guidelines sentence may apply multiple 6
[enhancements] based on the same underlying conduct,” 7
especially where “each of the multiple [enhancements] . . . 8
serves a distinct purpose or represents a discrete harm.” 9
United States v. Maloney, 406 F.3d 149, 152, 153 (2d Cir. 10
2005). The terrorism and official victim enhancements both 11
address discrete harms resulting from Siddiqui’s conduct–the 12
official victim enhancement “deals with the selection of 13
victims based on their status as government employees,” and 14
the terrorism enhancement addresses those acts that are 15
calculated to influence government conduct or to retaliate 16
against a government. In re Terrorism Bombings of U.S. 17
Embassies in East Africa, 552 F.3d 93, 153 (2d Cir. 2008). 18
Accordingly, application of both the terrorism and official 19
victim enhancements does not constitute impermissible double 20
counting. See id. 21
22

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39
Resolution of Siddiqui’s challenge to the district 1
court’s finding that her offense was “calculated” merits 2
more discussion. As previously noted, for the terrorism 3
enhancement to apply, the defendant’s offense must be 4
“calculated to influence or affect the conduct of government 5
by intimidation or coercion, or to retaliate against 6
government conduct.” 18 U.S.C. § 2332b(g)(5)(A) (emphasis 7
added). When we interpret the Guidelines, we “giv[e] the 8
words used their common meaning.” United States v. Stewart, 9
590 F.3d 93, 137 (2d Cir. 2009). “Calculated” means 10
“planned–for whatever reason or motive–to achieve the stated 11
object.” Awan, 607 F.3d at 317; see Stewart, 590 F.3d at 12
137 (“The conventional meaning of ‘calculated’ is ‘devised 13
with forethought.’”). 14
Many courts (including this one) interpret “calculated” 15
as nearly synonymous with intentional. See Stewart, 590 16
F.3d at 137; see also United States v. Chandia, 675 F.3d 17
329, 333 n.3 (4th Cir. 2012); United States v. El-Mezain, 18
664 F.3d 467, 571 (5th Cir. 2011); United States v. 19
Jayyousi, 657 F.3d 1085, 1115 (11th Cir. 2011). Thus, “if a 20
defendant’s purpose in committing an offense is to 21
‘influence or affect the conduct of government by 22

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40
intimidation or coercion, or to retaliate against government 1
conduct,’” application of the terrorism enhancement is 2
warranted. See Stewart, 590 F.3d at 137 (emphasis added) 3
(quoting 18 U.S.C. § 2332b(g)(5)(A)). Where, however, 4
“there is no evidence that the defendant sought to influence 5
or affect the conduct of the government,” the enhancement is 6
inapplicable. Id. (internal quotation marks omitted). 7
Most cases applying the terrorism enhancement have 8
involved conduct that spanned a significantly greater length 9
of time than the conduct here. See, e.g., Awan, 607 F.3d at 10
310-11; United States v. Salim, 549 F.3d 67, 70-71 (2d Cir. 11
2008); In re Terrorist Bombings, 552 F.3d at 103-05 (2d Cir. 12
2008); United States v. Meskini, 319 F.3d 88, 90-91 (2d Cir. 13
2003). Relying on this observation, Siddiqui argues that 14
“calculation,” as used in the enhancement, incorporates a 15
long-term planning requirement. We disagree. That long- 16
term planning is present in many of the cases applying the 17
terrorism enhancement does not make it a condition necessary 18
to finding that a defendant’s offense was calculated to 19
influence government conduct or to retaliate against a 20
government. Instead, the terrorism enhancement is 21
applicable where a defendant acts according to a 22

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14We 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
plan–whether developed over a long period of time or 1
developed in a span of seconds–with the object of 2
influencing government conduct or retaliating against a 3
government. 4
The day before the shooting incident here, Siddiqui 5
repeatedly implored Afghan police officials not to turn her 6
over to American forces. Siddiqui gained control of an M-4 7
rifle and fired on the American interview team attempting to 8
take her into United States custody the following day. 9
Under these circumstances, the district court did not 10
clearly err 14 in its determination that Siddiqui’s offense 11
was calculated to influence government conduct–i.e, the 12
United States’ attempts to take Siddiqui into custody–by 13
intimidation or coercion. 14
We also find that the district court did not clearly 15
err in determining that Siddiqui’s offense was calculated to 16
retaliate against the United States. While in Afghan 17
custody prior to the shooting incident, Siddiqui referred to 18
the United States as invaders, and when queried about the 19
bomb-making documents found in her possession, Siddiqui 20

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42
indicated that the target of those bombs were “the 1
foreigners.” See JA 3022. What’s more, shortly after 2
firing on the American interview team, Siddiqui stated: “I 3
am going to kill all you Americans. You are going to die by 4
my blood”; “death to America”; and “I will kill all you 5
motherfuckers.” Taken as a whole, this evidence provides a 6
sufficient factual basis for the district court’s conclusion 7
that Siddiqui’s offense was calculated to retaliate against 8
the United States. 9
Accordingly, the district court did not err in applying 10
the terrorism enhancement. 11
III. CONCLUSION 12
For the foregoing reasons, and for the reasons provided 13
in the accompanying summary order, Siddiqui’s convictions 14
and sentence are hereby affirmed. 15

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