USA v. El Bahnasawy

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
ABDULRAHMAN EL
BAHNASAWY,
Defendant.
No. 4:21-CR-00234
(Chief Judge Brann)
MEMORANDUM OPINION
J ANUARY 21, 2026
I. 	BACKGROUND
On December 7, 2020, Defendant Abdulrahman El Bahnasawy, then an
inmate at the United States Penitentiary, Allenwood,1 attacked two corrections
officers (“COs”) with a sharpened metal object.2 One CO lost an eye and suffered a
traumatic brain injury in the assault; another received stitches to treat a wound to her
finger.3 During the assault, El Bahnasawy shouted “Allah[u] Akbar,” and after the
assault, COs recovered a note from his sock reading “[t]his is a terrorist attack for
the Islamic State,” and another from his locker stating in part, “[t]his is a terrorist
attack for ISIS. I am one of their soldiers,” and further containing a pledge of
allegiance (known as a “bay’ah”) to Abu Ibrahim al-Hashimi al-Quarashi, who at
1 	See United States v. El Bahnasawy, 813 F. App’x 721 (2d Cir. 2020).
2 	Doc. 150-1 (Stipulated Statement of Facts) at 1-3.
3 	Id. at 3.
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the time was the caliph of the Islamic State and the head of ISIS. 4 Shortly after the
assault, El Bahnasawy carved “ISIS” in two locations in his prison cell, told others
about ISIS and the Al Hayat Media Center (ISIS’s propaganda arm), and described
himself as an ISIS soldier.5
The record also reflects that ISIS uses publicly disseminated propaganda to
encourage its supporters to commit attacks in its name.6 ISIS singles out soldiers,
law enforcement, and intelligence personnel in Western countries as preferred
targets for such attacks.7 ISIS takes credit for attacks that were inspired by its
propaganda and considers the perpetrators “part of ISIS and soldiers of the
caliphate,” without regard to their actual communications with ISIS personnel.8 El
Bahnasawy’s communications make clear that he was familiar with and promoted
this propaganda.9 El Bahnasawy admits these facts, and, on November 4, 2025, pled
guilty to a nine-count indictment charging several crimes related to the assault.10
The form of the guilty plea varied slightly as to different counts. On Counts
1-8, El Bahnasawy fully admitted to his conduct and pled guilty unconditionally.11
The Court accepted that plea and adjudged El Bahnasawy guilty of those counts. 12
4 	Id. at 1, 4, 5.
5 	Id. at 5, 7.
6 	Id. at 5-6.
7 	Id. at 6.
8 	Id.
9 	Id. at 7 (“Bahnasawy told others about ISIS and the Al Hayat Media Center”).
10 	See Docs. 140, 142, 143.
11 	Doc. 142.
12 	Doc. 144.
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As to Count 9, which charged El Bahnasawy with providing or attempting to provide
material support to a designated foreign terrorist organization in violation of 18
U.S.C. § 2339B(a)(1), 13 El Bahnasawy admitted the truth of the Government’s
factual recitation, but maintained that those facts were legally insufficient to
establish guilt as a matter of statutory interpretation. On that understanding, El
Bahnasawy chose to enter a plea of guilty to Count 9 on the condition that the Court
would reserve entering judgment on that Count pending briefing and a legal
determination regarding the factual basis for the plea. 14 The Court accepted the
conditional plea and reserved the entry of judgment on Count 9.15
13 	Doc. 1 at 8-9.
14 	Doc. 143.
15 	Doc. 145; see Fed. R. Crim. P. 11(b)(2)-(3) (distinguishing between accepting a guilty plea
after determining that it is voluntary from entering judgment on a guilty plea after determining
that there is a factual basis for the plea); United States v. Yednak, 187 F. Supp. 2d 419, 420
(W.D. Pa. 2002) (conditionally accepting a guilty plea subject to a later determination that
there was an adequate factual basis to support guilt); United States v. Mitchell, 104 F.3d 649,
651 & n.1 (4th Cir. 1997) (appeal of guilty plea where plea was accepted but factual basis was
“deferred . . . until the sentencing hearing”); United States v. Whitted, 120 F.3d 264 (4th Cir.
1997) (unpublished table decision) (citing Mitchell to reject argument that “the district court
erred by accepting [defendant’s] plea without the Government first presenting an adequate
factual basis”). Notably, the prior version of Rule 11’s “factual basis” provision explicitly
stated that “notwithstanding the acceptance of a plea of guilty, the court should not enter a
judgment . . . without making such inquiry as shall satisfy it that there is a factual basis for the
plea.” United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir. 2000) (quoting prior version of
Fed. R. Crim. P. 11(f) (emphasis added)). In amending the rule to its current form, the Advisory
Committee stated that “[t]hese changes are intended to be stylistic only, except as noted
below,” and did not otherwise discuss prior Rule 11(f) (new Rule 11(b)(3)). Fed. R. Crim. P.
11 advisory committee’s note to 2002 amendments.
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The parties have since briefed the Count 9 issue in the form of a motion to
dismiss, which is now ripe for resolution. For the following reasons, El Bahnasawy’s
motion to dismiss is DENIED, and he is adjudged guilty of Count 9.
II. 	LEGAL STANDARD
El Bahnasawy moves to dismiss the indictment as to Count 9 but does not
address the applicable standard of review. The Government contends that Federal
Rule of Criminal Procedure 12(b)(3)(B)(v) provides the applicable standard because
El Bahnasawy seeks dismissal. As the procedural history makes clear, however, the
instant briefing is intended to assist the Court in its duty of determining whether
there is a sufficient factual basis for El Bahnasawy’s guilty plea. Dismissal would
only be appropriate if the Court interprets the statute in El Bahnasawy’s favor and
the Government has no additional evidence to offer beyond that before the Court at
this time. Accordingly, the standard for dismissal is not immediately applicable here.
The United States Court of the Appeals for the Third Circuit helpfully
reclarified the standard for determining whether there is a factual basis for a plea just
days ago.16 To find a sufficient factual basis for the plea, the Court “need not be
‘convinced beyond a reasonable doubt that an accused is guilty. It need only be
convinced that there is sufficient evidence to justify the reaching of such a
16 	United States v. Schuster, __ F.4th __, 2026 WL 100043, at *7-8 (3d Cir. Jan. 14, 2026) (citing
Cefaratti, 221 F.3d at 509).
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conclusion.’” 17 “The court may make that inquiry by looking to the defendant’s own
admissions, the government’s proffer of evidence, the presentence report, or
‘whatever means is appropriate in a specific case—so long as the factual basis is put
on the record.’”18 In reviewing the facts, “the Government is entitled to reasonable
inferences in its favor.” 19 The question, ultimately, is “whether the facts admitted to
in connection with the guilty plea, taken as true, are legally sufficient to support a
conviction.” 20
III. 	DISCUSSION
Section 2339B(a)(1) criminalizes “knowingly provid[ing] material support or
resources to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do
so.”21 “Material support or resources” is defined as “any property, tangible or
intangible, or service, including currency or monetary instruments or financial
securities, 	financial 	services, 	lodging, 	training, 	expert 	advice 	or 	assistance,
safehouses, false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel (1 or more individuals
who may be or include oneself), and transportation, except medicine or religious
materials.”22 The statute also clarifies that “[n]o person may be prosecuted under this
17 	Id. at *7 (quoting Cefaratti, 221 F.3d at 509).
18 	Cefaratti, 221 F.3d at 509 (quoting United States v. Smith, 160 F.3d 117, 121 (2d Cir. 1998)).
19 	Schuster, 2026 WL 100043, at *8 (citing United States v. Avalos-Sanchez, 975 F.3d 436, 441
(5th Cir. 2020)).
20 	Id. at *7.
21 	18 U.S.C. § 2339B(a)(1).
22 	18 U.S.C. § 2239B(g)(4); 18 U.S.C. § 2339A(b)(1).
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section in connection with the term ‘personnel’ unless that person has knowingly
provided, 	attempted 	to 	provide, 	or 	conspired 	to 	provide 	a 	foreign 	terrorist
organization with 1 or more individuals (who may be or include himself) to work
under that terrorist organization’s direction or control or to organize, manage,
supervise, or otherwise direct the operation of that organization. Individuals who act
entirely independently of the foreign terrorist organization to advance its goals or
objectives shall not be considered to be working under the foreign terrorist
organization’s direction and control.”23
El Bahnasawy argues that a conviction under Section 2339B(a)(1) requires
proof that the defendant directly coordinated or, in his terms, “conspired” with the
FTO. 24 This argument is based on a discussion in Holder v. Humanitarian Law
Project (“HLP”) in which the Supreme Court stated that “‘service’ . . . refers to
concerted activity, not independent advocacy.”25 Reasoning from the statute’s
exclusion of independent advocacy from the scope of the term “personnel,” the
Court explained that the statutory language similarly “indicates a connection
between the service and the foreign group.”26 Thus, “the term ‘service’ cover[s]
advocacy performed in coordination with, or at the direction of, a foreign terrorist
23 	18 U.S.C. § 2339B(h); see United States v. Dhirane, 896 F.3d 295, 303 (4th Cir. 2018)
(describing Section 2339B offense in element form). El Bahnasawy has stipulated that ISIS is
a designated FTO and that he has known that fact since at least 2016. Doc. 150-1 at 7.
24 	Doc. 150 (Mot.).
25 	561 U.S. 1, 23 (2010).
26 	Id. at 24.
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organization.”27 Notably, however, the Court declined to decide “how much
direction or coordination is necessary for an activity to constitute a ‘service.’” 28
The Supreme Court’s discussion in HLP does not support El Bahnasawy’s
position. In contrast to his argument that coordination is required, the Court
repeatedly 	stated 	that 	liability 	can 	attach 	when 	a 	defendant 	“performed 	in
coordination with, or at the direction of, a foreign terrorist organization.” 29 “Or is
disjunctive, and terms connected by a disjunctive should be given separate meanings
unless the context dictates otherwise.” 30 Actions can be taken at the direction of an
authority without any requirement of two-way contact; when orders come down
from on high and a line soldier follows them, he has acted “at the direction of”
another, despite the fact that he has never directly interacted with the superior.31
Accordingly, under HLP, it is enough for the Government to demonstrate that the
27 	Id.
28 	Id.
29 	Id. (emphasis added); see also id. quoting Webster’s Third New International Dictionary 2075
(1993) (defining “service” as “an act done for the benefit or at the command of another”);
United States v. Osadzinski, 97 F.4th 484, 494 (7th Cir. 2024) (citing HLP, 561 U.S. at 25).
30 	Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164, 178 (3d Cir. 2019) (cleaned up); United
States v. Woods, 571 U.S. 31, 45-46 (2013) (quoting Reiter v. Sonotone Corp., 42 U.S. 330,
339 (1979)); see United States v. Wright, 937 F.3d 8, 24 (1st Cir. 2019) (“The ‘at the direction
of’ and ‘in coordination with’ theories ‘provide alternative, independently sufficient grounds
for’ sustaining the conviction with respect to the ‘material support or resources’ element of the
conspiracy offense at issue.”).
31 	United States v. Ullah, No. 18-CR-0016, 2021 WL 21902, at *3 (S.D.N.Y. Jan. 4, 2021)
(noting that “the common meaning of the word ‘direction’ . . . refers to a command from one
person to another, not a two-party discussion of options” (citing Direction, Black’s Law
Dictionary (10th ed 2014)). El Bahnasawy relies on the appellate proceedings in Ullah,
contending that the panel questioned the district court’s reasoning at oral argument. Doc. 150
at 11-12. Oral argument occurred nearly four years ago, and I do not find appellate questioning,
without the benefit of specific reasoning, to be particularly persuasive authority.
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defendant acted pursuant to the FTO’s directions or instructions in an effort to
benefit the FTO, whether he received them through public or private channels, and
without regard to whether he actually made contact with the FTO.
The statutory text confirms this view. HLP’s interpretation of “service” to
exclude independent activity draws on the statutory exception for independent
activity from the term “personnel” set forth in 18 U.S.C. § 2339B(h). But Section
2339B(h) exempts only “[i]ndividuals who act entirely independently of the FTO to
advance its goals or objectives” from liability.32 On the Court’s reading, this is a very
narrow exemption. It protects individuals who espouse similar goals or objectives to
an FTO, but do not do so as a member of the FTO or to advance the FTO’s specific
mission.33 For example, a person who independently reaches the conclusion that
attacking Government buildings is good and who actively advocates for and takes
such action is not liable under Section 2339B even though his conduct advances the
goals and objectives of many FTOs.34 But when a person takes the same action
pursuant to the direction or instruction of an FTO, he has no longer acted “entirely
independently” and liability can attach. Indeed, it is hard to conceive how a
defendant who has consumed ISIS propaganda, pledges allegiance to ISIS, claims
membership in ISIS, and commits an attack on behalf of ISIS of the type that ISIS
32 	18 U.S.C. § 2339B(h) (emphasis added).
33 	See HLP, 561 U.S. at 24 (“[I]ndependently advocating for a cause is different from providing
a service to a group that is advocating for that cause.” (emphasis added)).
34 	Cf. United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998).
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instructs its followers to commit, can be said to have acted “entirely independently”
of the FTO.
Ample case law supports the Court’s interpretation that a defendant can be
liable under Section 2339B even if he has not made contact with the FTO. For
example, in United States v. Augustin, the United States Court of Appeals for the
Eleventh Circuit affirmed Section 2339B conspiracy convictions pursuant to the
term “personnel” for defendants who “volunteer[ed] themselves to serve under the
direction and control of Al Qaeda” after they took an oath to Al Qaeda and
participated in reconnaissance of federal buildings, despite the fact that they never
actually made contact with Al Qaeda. 35 In United States v. Osadzinski, the United
States Court of Appeals for the Seventh Circuit affirmed a conviction under Section
2339B when a defendant wrote and attempted to distribute computer code designed
to duplicate ISIS propaganda materials, despite the fact that he only “acted in
response to what he perceived to be a solemn directive from ISIS contained in [a
propaganda] video.”36 And the United States Court of Appeals for the Fourth Circuit
in United States v. Dhirane held that it was unnecessary to determine whether
defendants actually coordinated with an FTO in order to affirm their convictions. 37
35 	661 F.3d 1105, 1119-21 (11th Cir. 2011); see United States v. Suarez, 893 F.3d 1330, 1334-35
(11th Cir. 2018) (citing Augustin to affirm conviction under similar circumstances).
36 	97 F.4th 484, 494-95 (7th Cir. 2024).
37 	896 F.3d 295, 303 (4th Cir. 2018); see also United States v. Alowemer, 96 F.4th 386 (3d Cir.
2024) (Section 2339B conviction where defendant did not successfully make contact with
FTO); United States v. Jama, 217 F. Supp. 3d 882, 892 (E.D. Va. 2016) (reasoning that
“Congress intended to reach all persons who act on behalf of an FTO to further its goals and
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El Bahnasawy’s argument to the contrary is misplaced. He primarily contends
that the Court should require proof of coordination between the defendant and the
FTO which rises to the level of a conspiracy before liability attaches. 38 He argues
that “there is no true distinction” between “the crime of conspiracy . . . and Section
2339B’s ‘service,’ which requires concerted action.”39 The statutory text would beg
to differ. As the Government correctly identifies, Section 2339B describes three
different types of liability: (1) providing; (2) attempting to provide; “or” (3)
conspiring to provide material support.40 As before, the disjunctive “or” indicates
that each path to liability should be given independent meaning.41 By importing a
conspiracy standard into the term “service,” El Bahnasawy would collapse the
textual distinction. If anything, the fact that “conspiracy” is an independent form of
liability indicates that the level of coordination required by the term “service” must
be something less than conspiracy.
This reading does not “end-run” the statutory conspiracy standard.42 The
concerted action requirement in “service” and the agreement required for liability on
objectives in significant ways”) aff’d sub nom Dhirane, 896 F.3d 295; United States v. Jones,
383 F. Supp. 3d 810, 815 (N.D. Ill. 2019) (“[U]nder the plain language of the statute,
Defendants need not interact with an actual or purported member of the FTO to be charged
with violating § 2339B.”); cf. Wright, 937 F.3d at 31 (noting the possibility that “intending to
fulfill a publicly made ISIS decree constitutes acting ‘at the direction of’ ISIS”).
38 	Doc. 150 at 5-10.
39 	Id. at 8.
40 	18 U.S.C. § 2339B(a)(1); see United States v. Kurbanov, No. 1:13-CR-0120, 2015 WL
9255324, at *3 (D. Idaho Dec. 17, 2015).
41 	Pellegrino, 937 F.3d at 178.
42 	Doc. 150 at 6.
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a conspiracy charge refer to two different types of coordination. The first asks
whether the defendant had some general contact with the FTO such that Section
2339B charges only attach to defendants who genuinely seek to assist a designated
FTO. The latter asks whether multiple individuals subject to Section 2339B formed
an agreement to violate the statute. 43 This distinction is logical given that many FTOs
are based internationally and the difficulty that may attend proving a conspiracy
between someone subject to Section 2339B’s jurisdictional reach,44 and someone
who is presently beyond that scope. Put simply, the “concerted action” required by
the term “service” merely establishes that there must be some minimal connection
between the defendant and the FTO, lest terrorism charges attach to anyone who
shares any views with such an organization.
Even if all of the above analysis were incorrect, however, El Bahnasawy
would still be liable under Section 2339B for two reasons. First, in the stipulated
statement of facts, El Bahnasawy admitted that he had previously discussed his
contacts with ISIS before his arrest in 2016.45 El Bahnasawy points to no authority
for the proposition that contacts with an FTO lose relevance with the passage of time
for the purposes of Section 2339B, and any such assertion would undoubtedly not
43 	See Wright, 937 F.3d 8 (charging conspiracy when multiple non-FTO individuals formed an
agreement with each other to provide material support to an FTO); Dhirane, 896 F.3d 295
(same); Augustin, 661 F.3d 1105 (same).
44 	18 U.S.C. § 2339B(d).
45 	Doc. 150-1 at 7.
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apply where the defendant has been prevented from contacting the FTO by virtue of
his 	federal 	imprisonment 	and 	has 	nonetheless 	continuously 	expressed 	his
commitment to and desire to communicate with the FTO. 46 Second, El Bahnasawy
was explicitly and inherently charged with the attempt version of the offense. 47 “An
attempt is comprised of two principal elements: (1) an intent to engage in criminal
conduct and (2) a substantial step toward the commission of the substantive offense
which corroborates that intent.”48 When he professed his allegiance to ISIS, stabbed
two COs, and declared that the stabbings were “a terrorist attack for ISIS,” El
Bahnasawy clearly demonstrated that he intended to provide material support to ISIS
and took the substantial step of actually providing that support in the form of the
assault. That he was stymied from making contact with the FTO does not render his
conduct innocent under Section 2339B.
46 	See id. at 7-8; cf. United States v. Kushner, 305 F.3d 194, 198 (3d Cir. 2002) (requiring
“evidence of some affirmative act of withdrawal” before conspiracy liability ends).
47 	Doc. 1 at 8; Fed. R. Crim. P. 31(c).
48 	United States v. Hayward, 359 F.3d 631 (3d Cir. 2004) (citing United States v. Cruz-Jiminez,
977 F.2d 95, 101-02 (3d Cir. 1992)).
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IV. 	CONCLUSION
For the above-stated reasons, there is ample factual basis to support El
Bahnasawy’s guilty plea to Count 9. Accordingly, his motion to dismiss is denied,
and I now adjudge him guilty of the offense.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
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