The Honorable Shira A. Scheindlin, of the United States District Court for the… v. al Kassar 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term,…

* The Honorable Shira A. Scheindlin, of the United
States District Court for the Southern District of New York,
sitting by designation.
1
09-1051-cr
United States v. al Kassar
1
UNITED STATES COURT OF APPEALS 2
FOR THE SECOND CIRCUIT 3
August Term, 2010 4
(Argued: February 7, 2011 Decided: September 21, 2011) 5
Docket Nos. 09-1051-cr(L); 09-1057-cr(Con); 09-3972-cr(Con) 6
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8
UNITED STATES OF AMERICA, 9
10
Appellee, 11
12
-v.- 09-1051-cr 13
14
MONZER AL KASSAR a/k/a ABU MUNAWAR a/k/a 15
EL TAOUS, LUIS FELIPE MORENO GODOY, TAREQ 16
MOUSA AL GHAZI, 17
18
Defendants-Appellants. 19
20
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22
Before: DENNIS JACOBS, Chief Judge, 23
PETER W. HALL, Circuit Judge, 24
SHIRA A. SCHEINDLIN, District Judge.*
25
26
27
Appeals by three defendants from their criminal 28
convictions, following jury trials in the United States 29
District Court for the Southern District of New York 30

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2
(Rakoff, J.), for conspiring to kill U.S. officers, to 1
acquire and export anti-aircraft missiles, and to provide 2
material support to a known terrorist organization. Two 3
defendants were additionally convicted of money laundering 4
and conspiring to kill U.S. citizens. Defendants argue on 5
appeal that federal subject-matter jurisdiction is lacking, 6
that their due process rights were violated, that 7
exculpatory evidence was improperly excluded, and that the 8
evidence of a conspiracy among them was legally 9
insufficient. As to the conviction for conspiring to 10
acquire and export anti-aircraft missiles, defendants argue 11
that the statute does not criminalize conspiracy, that the 12
jury was improperly instructed on the statute’s scienter 13
requirements, and that the defendants’ conduct falls within 14
the statute’s exception for conduct authorized by the U.S. 15
government. As to the conviction for conspiring to 16
knowingly support a terrorist organization, defendants argue 17
that the statute violates due process by not requiring that 18
the support be intended to further specifically criminal 19
activities. 20
Affirmed. 21
22

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3
FOR APPELLANTS: Roger Lee Stavis 1
Gallet Dreyer & Berkey LLP 2
New York, NY 3
(for Monzer al Kassar and Luis Felipe 4
Moreno Godoy) 5
6
Marc Antony Agnifilo 7
Brafman & Associates 8
New York, NY 9
(for Tareq Mousa al Ghazi) 10
11
FOR APPELLEE: Brendan R. McGuire 12
(Boyd M. Johnson III, Jesse M. Furman, on 13
brief) 14
On Behalf of Preet Bharara 15
U.S. Attorney’s Office, 16
Southern District of New York 17
New York, NY 18
19
20
DENNIS JACOBS, Chief Judge: 21
22
Defendants Monzer al Kassar, Luis Felipe Moreno Godoy, 23
and Tareq Mousa al Ghazi appeal their criminal convictions, 24
entered after jury trials in the United States District 25
Court for the Southern District of New York (Rakoff, J.), 26
for conspiring to kill U.S. officers, to acquire and export 27
anti-aircraft missiles, and to knowingly provide material 28
support to a terrorist organization. Al Kassar and Godoy 29
were also convicted of conspiring to kill U.S. citizens and 30
of money laundering. Defendants argue on appeal that 31
federal subject-matter jurisdiction is lacking, that their 32
due process rights were violated, that exculpatory evidence 33

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4
was excluded, and that the evidence of a conspiracy among 1
them was legally insufficient. As to the conviction for 2
conspiring to acquire and export anti-aircraft missiles, 3
defendants argue that the statute does not criminalize 4
conspiracy, that the jury was improperly instructed on the 5
statute’s scienter requirements, and that the defendants’ 6
conduct falls within the statute’s exception for conduct 7
authorized by the U.S. government. As to the conviction for 8
conspiring to knowingly support a terrorist organization, 9
defendants argue that the statute violates due process by 10
not requiring that the support be intended to further 11
specifically criminal activities. 12
Affirmed. 13
14
BACKGROUND 15
Since the 1970s, the U.S. government has suspected 16
Monzer al Kassar, a Spanish national and resident, of 17
illegal arms trafficking. United States v. al Kassar, 582 18
F. Supp. 2d 488, 491 (S.D.N.Y. 2008) (“Al Kassar I”). In 19
2005, the Drug Enforcement Administration (“DEA”) set up a 20
sting operation to apprehend him for selling arms illegally. 21

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1 An end-user certificate is an official government
document authorizing a sale of particular weapons to a
particular end-user. It is required to conduct a legal
international weapons sale.
5
To this end, the DEA sent Samir Houchaimi, a 1
confidential informant, to locate Tareq Mousa al Ghazi, a 2
known associate of al Kassar, and set up a meeting with al 3
Kassar. Houchaimi went to Lebanon, where al Ghazi lived, 4
and won his trust over several months. Houchaimi told al 5
Ghazi that he was in the weapons trade, asked to meet with 6
al Kassar, and gave al Ghazi a fake end-user certificate 1
7
for Nicaragua supplied by the DEA. Houchaimi asked al Ghazi 8
to arrange a meeting with al Kassar, and al Ghazi agreed. 9
Al Kassar arrived at the arranged meeting in Beirut 10
holding the end-user certificate Houchaimi had given to al 11
Ghazi. The meeting was fruitful, ending with al Kassar 12
inviting Houchaimi to his mansion in Spain to further 13
discuss the Nicaraguan arms deal. 14
At the meeting in Spain (in February 2007), Houchaimi 15
introduced al Kassar to “Carlos” and “Luis”--two undercover 16
DEA agents posing as members of FARC (a left-wing Colombian 17
terrorist organization)--and al Kassar introduced his 18
associate, Luis Felipe Moreno Godoy. The DEA agents told al 19
Kassar they were interested in buying weapons for FARC’s use 20

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2 The negotiations were conducted primarily in Spanish,
but al Kassar translated for al Ghazi and Houchaimi. Many
of the meetings were secretly recorded by Houchaimi.
6
against the U.S. military in Colombia. They gave al Kassar 1
a list of weapons they wanted, which included anti-aircraft 2
missiles (“SAMs”). Al Kassar agreed to negotiate. 3
Over the next several months, in the presence of Godoy 4
and al Ghazi, al Kassar negotiated an arms deal with the two 5
DEA agents.2 The negotiators discussed at length FARC’s 6
intent to use the weapons against Americans and U.S. assets. 7
When al Kassar left the room during a break in negotiations, 8
al Ghazi advised the DEA agents how to negotiate effectively 9
with al Kassar. At the end of March, 2007, when the parties 10
had agreed to basic terms (including the sale of SAMs), 11
Godoy took the DEA agents to an Internet café and helped 12
them transfer a down payment (€100,000) to a bank account 13
controlled by al Kassar. 14
The next day (after confirming receipt of the down 15
payment), al Kassar again met with the DEA agents to discuss 16
details. Before the meeting, al Ghazi again counseled the 17
DEA agents on how best to secure the sale. At the meeting-- 18
again in the presence of Godoy and al Ghazi--al Kassar gave 19
the DEA agents schematics for the SAMs he was selling and 20

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7
explained how he planned to smuggle the weapons into 1
Colombia through a cargo ship destined for Suriname (with al 2
Kassar, as usual, translating for al Ghazi). 3
In May 2007, al Kassar and Godoy facilitated a meeting 4
between the DEA agents and the captain of the ship that 5
would smuggle the weapons. Before the meeting, the DEA 6
agents wired another payment ($135,000) to a bank account 7
controlled by al Kassar. Afterward, al Kassar and Godoy 8
visited arms factories in Bulgaria and Romania to secure the 9
weapons. 10
In June 2007, the DEA agents agreed to meet al Kassar 11
and Godoy in Bucharest to make final payment. Al Kassar 12
stayed in Spain, however, and sent Godoy and al Ghazi to 13
pick up the money. Pursuant to valid arrest warrants and in 14
coordination with the DEA, Romanian authorities arrested al 15
Ghazi and Godoy in Bucharest. The same day, Spanish 16
authorities arrested al Kassar at the Madrid International 17
Airport; he was carrying fake end-user certificates for the 18
FARC weapons and documents confirming final arrangements to 19
ship the weapons from Romania to Suriname. A search of al 20
Kassar’s mansion yielded documents establishing his and 21
Godoy’s participation in other arms deals and confirming 22

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8
that al Kassar controlled the bank accounts into which the 1
DEA agents had wired money. 2
Godoy and al Ghazi were extradited here from Romania in 3
October 2007. During the flight, al Ghazi agreed to waive 4
his Miranda rights and admitted to the DEA agents that: (1) 5
he knew al Kassar was selling weapons, including SAMs, to 6
FARC; (2) he knew that FARC was a terrorist organization, 7
which planned to use the weapons to kill Americans; and (3) 8
he facilitated the deal because he was promised a €125,000 9
commission. In June 2008, al Kassar was extradited here 10
from Spain. 11
Once in the United States, the defendants were indicted 12
on four counts: 13
[1] Conspiracy to kill U.S. citizens in violation of 18 14
U.S.C. § 2332(b). 15
16
[2] Conspiracy to kill U.S. officers and/or employees 17
in violation of 18 U.S.C. §§ 1114, 1117. 18
19
[3] Conspiracy to acquire and export SAMs in violation 20
of 18 U.S.C. § 2332g. 21
22
[4] Conspiracy to provide material support to a known 23
terrorist organization in violation of 24
18 U.S.C. § 2339B. 25
26
Al Kassar and Godoy were also indicted on a fifth count: 27
[5] Money laundering in violation of 18 U.S.C. § 1956. 28
29

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9
The district court denied defendants’ motion to dismiss 1
the indictments for violation of due process. Al Kassar I, 2
582 F. Supp. 2d at 498. The district court likewise denied 3
their motions (after hearings) to admit classified 4
information related to prior and contemporaneous 5
interactions with Spanish intelligence agents, allegedly for 6
the benefit of the United States. United States v. Al 7
Kassar, 582 F. Supp. 2d 498, 500 (S.D.N.Y. 2008) (“Al Kassar 8
II”). The district court concluded that the proffered 9
classified information was irrelevant, needlessly confusing, 10
or inadmissible prior acts evidence. Fed. R. Evid. 402-405. 11
Al Ghazi’s trial was severed when he was hospitalized a 12
week before the scheduled trial. Al Kassar and Godoy were 13
convicted by a jury on all five counts. Al Ghazi was tried 14
several months later and convicted of conspiring to kill 15
U.S. officials, to acquire and export SAMs, and to provide 16
material support to a known terrorist organization. Al 17
Ghazi was acquitted of conspiring to kill U.S. citizens. Al 18
Kassar and Godoy were sentenced in February 2009 to 30 years 19
and 25 years respectively. Al Ghazi was sentenced in July 20
2009 to 25 years. 21

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10
The defendants timely appealed their convictions, but 1
do not contest the sentences. 2
3
DISCUSSION 4
On appeal, the defendants challenge their convictions 5
on the following grounds: 6
[I] The government lacked jurisdiction to 7
prosecute because of an insufficient nexus 8
between their actions and the United States. 9
10
[II] The government’s investigation constituted 11
“outrageous conduct” in violation of their due 12
process rights. 13
14
[III] The district court erred in denying their 15
motion to introduce exculpatory classified 16
evidence. 17
18
[IV] The convictions under 18 U.S.C. § 2332g 19
(acquiring and exporting SAMs) must be 20
overturned because: the statute does not 21
criminalize conspiracy; the jury was 22
improperly instructed as to scienter; the 23
defendants’ actions fall under the statute’s 24
exception for authorized conduct; and there 25
was insufficient evidence of conspiracy. 26
27
[V] The convictions under 18 U.S.C. § 2339B 28
(aiding a known terrorist organization) must 29
be overturned because: the statute requires 30
that the aid be intended to support the 31
illegal activities of the terrorist 32
organization, or, in the alternative, the 33
statute violates the Fifth Amendment’s Due 34
Process Clause by not requiring such intent. 35
36
Al Ghazi challenges his conviction on a sixth ground: 37
38

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11
[VI] There was insufficient evidence he conspired 1
with al Kassar or Godoy to kill U.S. officers 2
and materially aid a known terrorist 3
organization. 4
5
The Sections in this opinion correspond to these 6
arguments. 7
8
I 9
The defendants argue that federal subject-matter 10
jurisdiction is lacking because: First, there is an 11
insufficient nexus between their conduct and the United 12
States for U.S. law to apply to them; second, any nexus that 13
does exist was created by the DEA agents, not the 14
defendants. 15
16
A 17
In a challenge to subject-matter jurisdiction, we 18
review a district court’s factual findings for clear error 19
and its legal conclusions de novo. APWU v. Potter, 343 F.3d 20
619, 623-24 (2d Cir. 2003). “[A]s a general proposition, 21
Congress has the authority to ‘enforce its laws beyond the 22
territorial boundaries of the United States.’” United 23
States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (quoting 24
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). The 25

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12
presumption that ordinary acts of Congress do not apply 1
extraterritorially, see Sale v. Haitian Ctrs. Council, Inc., 2
509 U.S. 155, 173 (1993), does not apply to criminal 3
statutes. United States v. Bowman, 260 U.S. 94, 98 (1922); 4
see also Yousef, 327 F.3d at 86. When the text of a 5
criminal statute is silent, Congressional intent to apply 6
the statute extraterritorially must “be inferred from the 7
nature of the offense.” Bowman, 260 U.S. at 98. 8
Four of the five counts on which the defendants were 9
convicted--conspiracy to kill U.S. nationals, conspiracy to 10
acquire and export SAMs, conspiracy to aid a known terrorist 11
organization, and money laundering--contain explicit 12
provisions applying them extraterritorially. See 18 U.S.C. 13
§ 2332(b); id. § 2332g(b); id. § 2339B(d); id. § 1956(b)(2). 14
Although the conspiracy to kill U.S. officers or employees 15
count, id. §§ 1114, 1117, contains no explicit 16
extraterritoriality provision, the nature of the offense-- 17
protecting U.S. personnel from harm when acting in their 18
official capacity--implies an intent that it apply outside 19
of the United States. The provision protects U.S. 20
employees, and a significant number of those employees 21
perform their duties outside U.S. territory. District 22

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13
courts in our Circuit have applied it so, as have courts in 1
other circuits. See, e.g., United States v. Benitez, 741 2
F.2d 1312, 1317 (7th Cir. 1984) (applying §§ 1114, 1117 3
extraterritorially); United States v. Bin Laden, 92 F. Supp. 4
2d 189, 202 (S.D.N.Y. 2000) (applying § 1114 5
extraterritorially). We join them and conclude that §§ 1114 6
and 1117 apply extraterritorially. 7
When Congress so intends, we apply a statute 8
extraterritorially as long as doing so does not violate due 9
process. Yousef, 327 F.3d at 86. “‘In order to apply 10
extraterritorially a federal criminal statute to a defendant 11
consistently with due process, there must be a sufficient 12
nexus between the defendant and the United States, so that 13
such application would not be arbitrary or fundamentally 14
unfair.’” Id. at 111 (quoting United States v. Davis, 905 15
F.2d 245, 248-49 (9th Cir. 1990)). For non-citizens acting 16
entirely abroad, a jurisdictional nexus exists when the aim 17
of that activity is to cause harm inside the United States 18
or to U.S. citizens or interests. See United States v. 19
Peterson, 812 F.2d 486, 494 (9th Cir. 1987) (“Protective 20
jurisdiction is proper if the activity threatens the 21

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14
security or government functions of the United States.”); 1
see also Yousef, 327 F.3d at 112; Davis, 905 F.2d at 249. 2
The defendants’ conspiracy was to sell arms to FARC 3
with the understanding that they would be used to kill 4
Americans and destroy U.S. property; the aim therefore was 5
to harm U.S. citizens and interests and to threaten the 6
security of the United States. The defendants observe that 7
this Court has never before found a sufficient 8
jurisdictional nexus based on a sting operation taking place 9
entirely outside the United States and involving solely 10
foreign citizens. But the geographical location of an 11
undercover investigation is irrelevant to the sufficiency of 12
the jurisdictional nexus. If an undercover operation 13
exposes criminal activity that targets U.S. citizens or 14
interests or threatens the security or government functions 15
of the United States, a sufficient jurisdictional nexus 16
exists notwithstanding that the investigation took place 17
abroad and focused only on foreign persons. 18
The defendants argue that, even if these U.S. laws 19
apply to them in theory, in practice such application is 20
“fundamentally unfair” because their conduct was so far 21
removed from any U.S. interest or person. True, the 22

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15
defendants’ conduct never came close to harming any U.S. 1
person or property, but this is irrelevant for conspiracy 2
offenses, which often result in no palpable harm. 3
Jurisdictional nexus is determined by the aims of the 4
conspiracy, not by its effects. 5
Finally, the defendants argue that, nexus aside, U.S. 6
jurisdiction is fundamentally unfair because they lacked 7
fair warning that their conduct exposed them to U.S. 8
criminal prosecution. We disagree. The idea of fair 9
warning is that “no man shall be held criminally responsible 10
for conduct which he could not reasonably understand to be 11
proscribed.” Bourie v. City of Columbia, 378 U.S. 347, 351 12
(1964) (internal quotation marks omitted). Fair warning 13
does not require that the defendants understand that they 14
could be subject to criminal prosecution in the United 15
States so long as they would reasonably understand that 16
their conduct was criminal and would subject them to 17
prosecution somewhere. The defendants were not ensnared by 18
a trap laid for the unwary. Supplying weapons illegally 19
(i.e., without legitimate end-user certificates) to a known 20
terrorist organization with the understanding that those 21
weapons would be used to kill U.S. citizens and destroy U.S. 22

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16
property is self-evidently criminal; and their deliberate 1
attempts to avoid detection suggested the defendants so 2
understood. 3
4
B 5
In the alternative, the defendants argue that any 6
jurisdictional nexus was created entirely by acts of the DEA 7
agents who “manufactured” jurisdiction over the defendants 8
in violation of due process. 9
“[T]he ‘manufactured jurisdiction’ concept is properly 10
understood not as an independent defense,” but as a 11
collection of three distinct defense theories: (1) 12
outrageous government conduct in violation of due process; 13
(2) entrapment; and (3) a failure by the prosecution to 14
prove an essential element of the crime. United States v. 15
Wallace, 85 F.3d 1063, 1065-66 (2d Cir. 1996). The 16
defendants raise the outrageous conduct defense as an 17
independent basis for overturning their convictions, and it 18
is discussed in Section II. Here, we reject the entrapment 19
and unproven-element theories. 20
21

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17
1 1
Since each defendant’s entrapment argument was rejected 2
by a jury, no defendant can prevail on appeal unless he was 3
entrapped as a matter of law, i.e., he has proven that: (1) 4
the government originated the criminal design, (2) the 5
government suggested the design to the defendant and induced 6
him to adopt it, and (3) the defendant had no predisposition 7
to engage in the criminal design prior to the government’s 8
inducement. Jacobson v. United States, 503 U.S. 540, 548-49 9
(1992); United States v. Rahman, 189 F.3d 88, 131 n.16 (2d 10
Cir. 1999). 11
It is uncontested that the government originated the 12
illegal arms deal and induced the defendants’ participation 13
with money and political ideology. However, it cannot be 14
said as a matter of law that the defendants lacked a 15
predisposition to conspire to illegally sell arms to known 16
terrorists. The defendants’ knowledge of how to procure and 17
smuggle arms suggests experience in the trade; and their 18
positive reaction to the idea that the arms would be used to 19
kill Americans and harm U.S. interests suggests a 20
predisposition to support and participate in that goal. A 21
reasonable jury thus could have concluded that the 22

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18
defendants were predisposed to commit the crimes for which 1
they were convicted. This may have been a close call, 2
especially with respect to al Ghazi, but it was a call for 3
the jury to make. 4
5
2 6
The unproved-element theory of manufactured 7
jurisdiction is that if the government unilaterally supplies 8
an essential element of a crime, the government has in 9
effect failed to prove that element as to the defendant. 10
See generally United States v. Archer, 486 F.2d 670 (2d Cir. 11
1973). In Archer, the case that originated this theory, 12
undercover federal agents sought to transform a state crime 13
into a federal offense by having the defendant participate 14
in a call which, without his knowing, was interstate. Id. 15
at 672-74. In the years since Archer, we have limited it. 16
See, e.g., Wallace, 85 F.3d at 1065; United States v. Keats, 17
937 F.2d 58, 64-65 (2d Cir. 1991). Now, even if the 18
government initiates an essential element of a crime, 19
jurisdiction is not manufactured if the defendant “then 20
takes voluntary actions that implicate the [government- 21
initiated] element.” Wallace, 85 F.3d at 1066. 22

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19
Here, the DEA agents initiated an arms transaction with 1
the defendants by posing as terrorists and requesting SAMs 2
(and other weapons) from the defendants for use in killing 3
Americans. But the defendants responded to this request by 4
conspiring among themselves to acquire and sell these 5
weapons to what they believed was a terrorist organization 6
with knowledge that the weapons would be used to kill 7
Americans. Creating an opportunity for a defendant to 8
engage in criminal conduct does not violate the Constitution 9
and does not constitute a “manufacture” of jurisdiction--or 10
of any of the elements required to obtain a conviction for 11
that criminal conduct. See United States v. Schmidt, 105 12
F.3d 82, 91-92 (2d Cir. 1997). The government did not 13
manufacture jurisdiction because every element of the crimes 14
of conviction was established by evidence of voluntary 15
action by the defendants. 16
The defendants contend that the DEA agents created the 17
jurisdictional nexus with the United States by injecting the 18
notion that the weapons were going to FARC for use against 19
Americans. While it is true the DEA agents lied to the 20
defendants, this does not make the nexus artificial or 21
invalid. Sting operations, by nature, involve lies told to 22

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20
the target. The defendants were convicted of conspiring to 1
sell SAMs to what they believed was a terrorist organization 2
for use against Americans, and that is what they conspired 3
to do. That their conspiracy was never going to succeed is 4
irrelevant. (It is to be hoped that all such schemes are 5
foredoomed one way or another.) 6
For these reasons, we conclude that the United States 7
has jurisdiction to prosecute the defendants. 8
9
II 10
The defendants argue that the DEA agents’ pervasive 11
involvement in the weapons deal amounted to outrageous 12
government conduct violative of their rights to due process 13
under the Fifth Amendment. They also argue that the 14
district court erred by not holding a hearing on this issue. 15
16
A 17
Whether to dismiss an indictment for outrageous 18
government conduct is a legal question, which we review de 19
novo. United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. 20
1991). Government involvement in a crime may in theory 21
become so excessive that it violates due process and 22

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21
requires the dismissal of charges against a defendant even 1
if the defendant was not entrapped. Rahman, 189 F.3d at 2
131; see also United States v. Russell, 411 U.S. 423, 431-32 3
(1973) (“[W]e may some day be presented with a situation in 4
which the conduct of law enforcement agents is so outrageous 5
that due process principles would absolutely bar the 6
government from invoking judicial processes to obtain a 7
conviction.”). But see Hampton v. United States, 425 U.S. 8
484, 490 (1976) (plurality) (“If the police engage in 9
illegal activity in concert with a defendant beyond the 10
scope of their duties the remedy lies, not in freeing the 11
equally culpable defendant, but in prosecuting the police 12
under the applicable provisions of state or federal law.”). 13
Unlike entrapment, which focuses on the defendant’s 14
predisposition, outrageous government conduct focuses on the 15
conduct of the government agents. United States v. Myers, 16
692 F.2d 823, 836 (2d Cir. 1982). 17
To establish a due process violation on this ground, a 18
defendant must show that the government’s conduct is “so 19
outrageous that common notions of fairness and decency would 20
be offended were judicial processes invoked to obtain a 21
conviction.” Schmidt, 105 F.3d at 91; see also Rahman, 189 22

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22
F.3d at 131 (government action must shock the conscience to 1
sustain a due process violation); United States v. LaPorta, 2
46 F.3d 152, 160 (2d Cir. 1994) (government action must 3
“reach a demonstrable level of outrageousness before it 4
could bar conviction” (internal quotation marks omitted)). 5
This is a “very heavy” burden in light of our “well- 6
established deference to the Government’s choice of 7
investigatory methods.” Rahman, 189 F.3d at 131. 8
Generally, to be “outrageous,” the government’s involvement 9
in a crime must involve either coercion or a violation of 10
the defendant’s person. Schmidt, 105 F.3d at 91; Myers, 692 11
F.2d at 837. It does not suffice to show that the 12
government created the opportunity for the offense, even if 13
the government’s ploy is elaborate and the engagement with 14
the defendant is extensive. Schmidt, 105 F.3d at 91; Myers, 15
692 F.3d at 837. Likewise, feigned friendship, cash 16
inducement, and coaching in how to commit the crime do not 17
constitute outrageous conduct. Myers, 692 F.2d at 837-39. 18
The defendants allege no coercion, intimidation, or 19
physical force by the DEA agents. Instead, they argue that 20
the following facts amount to outrageous government conduct: 21
(1) no conspiracy existed among the defendants prior to the 22

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23
government’s request for weapons, (2) the government “lured” 1
the defendants into the illegal arms deal by first offering 2
an arms deal that was legal, and by befriending al Ghazi and 3
winning his trust over a long period, (3) al Ghazi exhibited 4
some hesitation and apprehension about the illegal weapons 5
deal, (4) the government involved the defendants in a wide 6
variety of illegal activities, and (5) the government 7
induced the crimes using political rhetoric and money. 8
None of these actions, either separately or in 9
combination, rises to the legal standard of outrageous. 10
First, the absence of a conspiracy prior to government 11
involvement shows only that the government created the 12
opportunity for illegal conduct. See LaPorta, 46 F.3d at 13
154-55, 160-61 (finding no due process violation where 14
defendant was convicted of arson for fire he set only after 15
an undercover agent asked him to); Schmidt, 105 F.3d at 92 16
(creation of opportunity to commit a crime is not outrageous 17
government conduct); Myers, 692 F.2d at 837 (same). Second, 18
neither the lawful arms proposal nor the winning of trust 19
renders the government’s involvement coercive or outrageous; 20
these are commonplace and often necessary tactics for 21
infiltrating criminal enterprises. Third, transient 22

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24
hesitation provides no basis for an excessive involvement 1
claim unless the government coerces the defendant, and no 2
coercion was applied here. Myers, 692 F.2d at 837-39. 3
Fourth, the large number of laws violated by the arms deal 4
is irrelevant to whether the government’s involvement was 5
excessive; if anything, it further supports the inference 6
that the defendants had notice that their conduct was 7
illegal. Fifth, financial and ideological inducements are 8
not outrageous conduct. See id. at 837-38 (even extremely 9
large financial inducements do not rise to the level of due 10
process violations). 11
While the sting operation in this case was elaborate 12
and prolonged, there was no coercion or physical force, and 13
nothing done was outrageous or a shock to the conscience. 14
15
B 16
The defendants argue that the district court improperly 17
denied them a pre-trial hearing on their jurisdictional and 18
due process defenses. They cite Cuervelo for the 19
proposition that in the context of such defenses, “[m]ost 20
often, conducting a hearing is the preferred course of 21
action in cases where disputed factual issues exist.” 949 22

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25
F.2d at 567. However, “[n]othing in Cuervelo requires a 1
district court to conduct a hearing every time a defendant 2
alleges outrageous government misconduct.” LaPorta, 46 F.3d 3
at 160. Where, as here, there are no material facts in 4
dispute related to the alleged government misconduct, no 5
hearing is necessary. Id. We therefore conclude that the 6
district court did not err in denying the defendants’ motion 7
for a hearing on these issues. 8
9
III 10
The defendants challenge their convictions on the 11
further ground that the district court improperly refused to 12
admit classified evidence relating to past and 13
contemporaneous contact between the defendants and Spanish 14
intelligence officials, allegedly for the benefit of the 15
United States. In a written opinion, the district court 16
ruled that the evidence of past contacts was irrelevant and 17
confusing under Federal Rules of Evidence 401 and 403, and 18
amounted to inadmissible prior acts evidence under Federal 19
Rules of Evidence 404 and 405. Al Kassar II, 582 F. Supp. 20
2d at 500. The district court excluded the defendants’ 21
subsequent proffer of evidence relating to contemporaneous 22

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26
contacts with Spanish intelligence on similar grounds, 1
reasoning that its potential for confusion vastly outweighed 2
any probative value. The defendants argue that these 3
rulings denied them their constitutional right to present a 4
complete defense, and also constituted legal error under the 5
Federal Rules of Evidence. We reject both contentions. 6
7
A 8
Criminal defendants are “entitled by the Constitution 9
to a meaningful opportunity to present a complete defense.” 10
Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003); see also 11
Clark v. Arizona, 548 U.S. 735, 769 (2006) (holding that the 12
right to present a complete defense is “a matter of simple 13
due process”); Taylor v. Illinois, 484 U.S. 400, 408 (1988) 14
(holding that criminal defendants have the right to “put 15
before a jury evidence that might influence the 16
determination of guilt” (internal citations and quotation 17
marks omitted)). At the same time, this right is subject to 18
“reasonable restrictions.” Wade, 333 F.3d at 58. State and 19
federal rules of evidence may restrict evidence “to assure 20
both fairness and reliability in the ascertainment of guilt 21

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27
and innocence.” Id. (quoting Chambers v. Mississippi, 410 1
U.S. 284, 302 (1973)). 2
The defendants argue that the denial of their requests 3
to offer the classified evidence prohibited them from 4
arguing, by way of a defense, that they had no intention of 5
completing the illegal arms deal. However, the defendants 6
presented this exact defense at their trials. True, the 7
excluded evidence might have marginally reinforced their 8
defense; but because it was neither compelling nor integral 9
to their defense theory, its exclusion does not amount to a 10
constitutional violation. 11
12
B 13
Even if the exclusion of their proffered evidence did 14
not amount to a constitutional violation, defendants argue 15
that it was legal error. Construing their argument as a 16
challenge to the district court’s evidentiary ruling, we 17
review it for abuse of discretion, reversing only if we find 18
manifest error. United States v. Miller, 626 F.3d 682, 687- 19
88 (2d Cir. 2010). Rule 403 determinations command especial 20
deference because the district court is in “the best 21
position to do the balancing mandated by Rule 403.” United 22

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28
States v. Stewart, 590 F.3d 93, 133 (2d Cir. 2009) (internal 1
quotation marks omitted). So long as the trial court 2
“conscientiously balanced the proffered evidence’s probative 3
value with the risk for prejudice,” we will reverse its 4
conclusion “only if it is arbitrary or irrational.” United 5
States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006). Even 6
manifest error does not require reversal if the error was 7
harmless, Miller, 626 F.3d at 687-88, that is, if we can 8
conclude with fair assurance that the evidence would not 9
have substantially influenced the jury. United States v. 10
Jackson, 301 F.3d 59, 65 (2d Cir. 2002). We see no 11
reversible error. 12
The vast majority of the classified evidence proffered 13
by the defendants does not relate to the particular 14
conspiracies for which they were convicted. Instead, it 15
consists of prior good acts performed by the defendants 16
allegedly for the good of the United States; thus, it 17
constitutes prior act evidence used to “prove the character 18
of a person in order to show action in conformity 19
therewith.” Fed. R. Evid. 404(b). Such prior act evidence 20
is inadmissible under Federal Rule of Evidence 404(b) for 21

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29
that purpose, id., as the district court properly concluded. 1
Al Kassar II, 582 F. Supp. 2d at 500. 2
Nor is the evidence admissible as proof of habit under 3
Rule 406, as the district court also properly concluded. 4
Id. at 501. A habit is “semi-automatic”--it involves a 5
“person’s regular practice of meeting a particular kind of 6
situation with a specific type of conduct, such as the habit 7
of going down a particular stairway two stairs at a time.” 8
Fed. R. Evid. 406 (1972 Proposed Rules). The defendants’ 9
prior acts are not habitual in that way (or any other way), 10
nor would the few isolated prior acts proffered by the 11
defendants constitute a habit even if they were. U.S. 12
Football League v. Nat. Football League, 842 F.2d 1335, 1373 13
(2d Cir. 1988) (three or four prior acts over a long period 14
are not sufficient to establish a habit). 15
The district court also excluded the proffered evidence 16
under Rule 403, finding that any minimal probative value of 17
the prior acts was outweighed by the likelihood of jury 18
confusion. Al Kassar II, 582 F. Supp. 2d at 500. This was 19
not manifest error. Leaving aside the defendants’ 20
mischaracterization of the proffered evidence on appeal, its 21
probative value was properly discounted, as most of it 22

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3 The defendants argue on appeal that, in a case
charging conspiracy to kill United States nationals,
officers, and employees, the district court’s evidentiary
rulings “prevented [the defendants] from countering [the
Government’s] one-sided, biased version of the facts.” This
argument was not made to the district court. We express no
view whether, had defendants made this argument, the
evidence would have been admissible on this theory.
30
related to wholly different events that took place many 1
years earlier and “would require a trial within a trial 2
before the jury could determine whether there was any 3
meaningful analogy at all.” Id. 3 And the trial judge was 4
rightly concerned that, to the extent any of the evidence 5
could be construed to relate to the charged conspiracies, 6
the jury would find it extremely confusing, if not 7
incomprehensible. 8
Because we conclude that the defendants’ proffered 9
evidence is inadmissible under Rule 404 and that the 10
district court did not commit manifest error by excluding it 11
under Rule 403, we reject the defendants’ evidentiary 12
challenge to the exclusion. 13
14
IV 15
The defendants challenge their convictions for 16
conspiring to acquire and export SAMs in violation of 18 17
U.S.C. § 2332g on four grounds: [A] their conduct was not 18

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31
illegal under § 2332g because the statute does not 1
criminalize conspiracy; [B] their conduct was not illegal 2
under § 2332g because it was authorized by an agency of the 3
United States; [C] the statute’s scienter requirement was 4
improperly omitted from the jury instruction; and [D] the 5
evidence was legally insufficient to convict them. 6
7
A 8
The defendants contend that 18 U.S.C. § 2332g does not 9
criminalize conspiracy. We review de novo questions of 10
statutory interpretation. L-3 Commc’ns Corp. v. OSI Sys., 11
Inc., 607 F.3d 24, 27 (2d Cir. 2010). 12
The relevant wording of § 2332g states: 13
(a)Unlawful Conduct. . . . it shall be unlawful 14
for any person to knowingly produce, construct, 15
otherwise acquire, transfer directly or 16
indirectly, receive, possess, import, export, or 17
use, or possess and threaten to use [SAMs]. 18
19
. . . 20
21
(c) Criminal Penalties. . . . Any person who 22
violates, or attempts or conspires to violate, 23
subsection (a) shall be fined not more than 24
$2,000,000 and shall be sentenced to a term of 25
imprisonment not less than 25 years or to 26
imprisonment for life. 27
28
18 U.S.C. § 2332g(a), (c) (emphasis added). The plain text 29
of subsection (c) penalizes conspiring to acquire and export 30

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32
SAMs. The defendants argue, however, that the conspiracy 1
language does not appear under the “unlawful conduct” 2
heading, so that the statute does not make conspiring 3
unlawful. This reading isolates the unlawful conduct 4
section of the statute from the rest of the act, and it 5
renders the conspiracy language in the “criminal penalties” 6
section not just superfluous but self-refuting; in this way 7
the defendants’ reading violates two canons of 8
interpretation: we read statutes as a whole, with no 9
section interpreted “in isolation from the context of the 10
whole Act,” United States v. Kozeny, 541 F.3d 166, 171 (2d 11
Cir. 2008) (internal quotation marks omitted); and we 12
interpret statutes “to give effect, if possible, to every 13
clause and word,” Duncan v. Walker, 533 U.S. 167, 174 14
(2001), and to “avoid statutory interpretations that render 15
provisions superfluous.” United States v. Anderson, 15 F.3d 16
278, 283 (2d Cir. 1994). 17
More broadly, we interpret statutes “to give effect to 18
congressional purpose.” Johnson v. United States, 529 U.S. 19
694, 710 n.10 (2000). The text of the Intelligence Reform 20
and Terrorism Prevention Act of 2004 states that the purpose 21
of what is now § 2332g is “to combat the potential use of 22

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33
weapons that have the ability to cause widespread harm to 1
United States persons and the United States economy . . . 2
and to threaten or harm the national security or foreign 3
relations of the United States.” Pub. L. No. 108-458, Title 4
VI, § 6902, 118 Stat. 3638, 3769-70 (2004) (emphasis added). 5
The defendants’ interpretation of the statute would 6
undermine this purpose; in contrast, our interpretation-- 7
that the statute criminalizes conspiracies to acquire SAMs-- 8
furthers this purpose of combating the potential use of 9
these weapons. We conclude that 18 U.S.C. § 2332g 10
criminalizes conspiracies to acquire and export SAMs. 11
12
B 13
The defendants argue that their conspiracy to acquire 14
and export SAMs constituted action authorized by the United 15
States under 18 U.S.C. § 2332g(a)(3) because it was done 16
under the guidance and inspiration of the DEA agents. We 17
disagree. 18
Again, we review de novo questions of statutory 19
interpretation. L-3 Commc’ns Corp., 607 F.3d at 27. The 20
defendants rely on the exclusion of government conduct from 21
the general prohibition of 18 U.S.C. § 2332g: 22

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34
Th[e prohibition on acquiring and exporting SAMs] 1
does not apply with respect to . . . conduct by or 2
under the authority of the United States or any 3
department or agency thereof or of a State or any 4
department or agency thereof; or conduct pursuant 5
to the terms of a contract with the United States 6
or any department or agency thereof or with a 7
State or any department or agency thereof. 8
9
18 U.S.C. § 2332g(a)(3). The defendants argue that (though 10
they didn’t know it) the DEA authorized their conduct when 11
its agents asked the defendants to sell them SAMs. As the 12
defendants concede, this interpretation would effectively 13
foreclose sting operations as an enforcement technique; but 14
they argue that Congress uses an express “sting provision” 15
in statutes if it intends that sting operations be allowed. 16
See, e.g., 18 U.S.C. § 1956(a)(1) (criminalizing money 17
laundering whenever the defendant believed the money 18
involved resulted from unlawful activity even when the money 19
was secretly lawfully procured through a sting operation). 20
Section 2332g (as we held, supra) criminalizes 21
conspiracies to acquire and export SAMs. We decline to read 22
the statute simultaneously to ban sub silentio one of the 23
few effective ways for the government to combat such 24
conspiracies. See United States v. Dauray, 215 F.3d 257, 25
264 (2d Cir. 2000) (holding that we interpret statutes to 26
prevent absurd results). 27

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35
Nor can it be said that a sting operation “authorizes” 1
the criminal conduct it exposes. The fact that undercover 2
government agents support an illegal act as part of a sting 3
operation does not “authorize” that act or otherwise make it 4
legal. The defendants’ analogy to the federal money 5
laundering statute is inapt; money laundering is a unique 6
crime because it requires not only that the defendant 7
believe the money involved is tainted by prior illegal 8
activity, but also that the money in fact be so tainted. It 9
is this second requirement that necessitates the statute’s 10
explicit sting exception: The exception is required not 11
because a sting operation secretly authorizes a defendant’s 12
transactions involving illegally obtained money (it 13
doesn’t), but because the sting operation secretly uses 14
money that was legally obtained. 18 U.S.C. § 2332g does not 15
share this second requirement--it criminalizes unauthorized 16
conduct related to all SAMs, not just those tainted by some 17
prior criminal transaction--so there is no need for an 18
explicit sting exception. Similar statutes, which 19
categorically criminalize the unauthorized acquisition and 20
sale of a particular object (regardless of whether that 21
object is tainted by prior illegal activity) have been read 22

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36
to allow for detection by sting operations notwithstanding 1
the absence of an explicit sting provision. See, e.g., 2
United States v. Wallace, 532 F.3d 126, 127 (2d Cir. 2008) 3
(affirming conviction for sale of cocaine to confidential 4
informant under the Controlled Substance Act despite its 5
exception for sales authorized by law and its lack of a 6
sting provision). 7
We conclude that the acquisition and export of SAMs (or 8
a conspiracy with that aim) at the behest of a government 9
agent acting undercover does not constitute “conduct by or 10
under the authority of the United States or any department 11
or agency thereof” and is therefore criminalized by 18 12
U.S.C. § 2332g. 13
14
C 15
The defendants argue that the jury charge on the 16
§ 2332g conspiracy count erroneously omitted the scienter 17
requirement for the underlying offense of acquiring and 18
exporting SAMs. We disagree. 19
A jury instruction is erroneous if it “[misleads] the 20
jury as to the correct legal standard or [does] not 21
adequately inform the jury on the law.” United States v. 22

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37
Goldstein, 442 F.3d 777, 781 (2d Cir. 2006). The defendants 1
objected to the § 2332g jury instruction before the district 2
court, but on different grounds from those they now advance 3
on appeal, and the district court accommodated the 4
defendants’ first objection. Because the defendants’ 5
present objection was not made before the district court, we 6
review the instruction for plain error, reversing only where 7
(1) the instruction was erroneous, (2) the error was plain 8
(i.e., obvious), (3) the error prejudiced the defendants’ 9
substantial rights, and (4) that prejudice affected the 10
fairness, integrity, or public reputation of the judicial 11
proceeding. United States v. Joyner, 313 F.3d 40, 45 (2d 12
Cir. 2002); see also United States v. Johnson, 529 F.3d 493, 13
501-02 (2d Cir. 2008) (reserving plain error only for “those 14
circumstances in which a miscarriage of justice would 15
otherwise result” (internal quotation marks omitted)). An 16
erroneous instruction is prejudicial unless “it is clear 17
beyond a reasonable doubt that a rational jury would have 18
found the defendant guilty absent the error.” Goldstein, 19
442 F.3d at 781. 20
A conspiracy conviction under § 2332g requires two 21
distinct findings as to scienter. First, the defendant must 22

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38
intend to agree to participate in the conspiracy (i.e., it 1
is not enough that the defendant participated unwittingly or 2
joined under the mistaken impression that the conspiracy 3
involved some other, legal activity). See United States v. 4
Morgan, 385 F.3d 196, 206 (2d Cir. 2004) (“Conspiracy is a 5
specific intent crime: To be guilty of conspiracy, there 6
must be some evidence from which it can reasonably be 7
inferred that the person charged with conspiracy knew of the 8
scheme alleged in the indictment and knowingly joined and 9
participated in it.” (internal quotation marks omitted)). 10
Second (in this case), the aim of the conspiracy must be to 11
“knowingly produce, . . . acquire, transfer, . . . receive, 12
possess, import, export, . . . use, or possess and threaten 13
to use [SAMs]” (i.e., the conspirators cannot just happen to 14
acquire an SAM while intending to acquire some other weapon 15
or object). 18 U.S.C. § 2332g(a)(1) (emphasis added); see 16
also Ingram v. United States, 360 U.S. 672, 678 (1959) 17
(“Conspiracy to commit a particular substantive offense 18
cannot exist without at least the degree of criminal intent 19
necessary for the substantive offense itself.”) (internal 20
quotation marks and alterations omitted). To be accurate, a 21

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39
jury instruction on a § 2332g conspiracy must convey both of 1
these scienter requirements. 2
The district judge gave the following jury instruction: 3
Count Three charges both defendants with 4
conspiring to acquire and export antiaircraft 5
missiles. In order to sustain its burden of proof 6
with respect to this charge as to a given 7
defendant, the government must prove beyond a 8
reasonable doubt each of the two elements: First, 9
the existence of the charged conspiracy, as 10
further described below; and second, that the 11
defendant you are considering intentionally joined 12
and participated in the conspiracy during the 13
applicable time period in order to further its 14
unlawful purpose. 15
16
. . . 17
18
The conspiracy alleged in Count Three, 19
however, is materially different from the 20
conspiracies alleged in Counts One and Two. 21
Specifically, in order to satisfy the first 22
element of Count Three, the government must prove 23
beyond a reasonable doubt that the purpose of the 24
conspiracy was to acquire and export explosive or 25
incendiary rockets or missiles guided by a system 26
enabling the rockets or missiles to seek aircraft. 27
In reviewing a jury instruction, we “examine not only 28
the specific language that the defendant challenges but also 29
the instructions as a whole to see if the entire charge 30
delivered a correct interpretation of the law.” United 31
States v. Bala, 236 F.3d 87, 94-95 (2d Cir. 2000) (internal 32
quotation marks omitted). A defendant “has no right to 33
demand that required factual findings be stated in any 34

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40
particular number of elements,” and when an offense has 1
ramified elements, a jury instruction need not separately 2
delineate each element so long as “when viewed as a whole, 3
[it] adequately instruct[s] the jury as to all factual 4
findings required to support conviction.” United States v. 5
Quinones, 511 F.3d 289, 315 (2d Cir. 2007); see also United 6
States v. Conway, 73 F.3d 975, 980 (2d Cir. 1995) (“[The] 7
trial judge retains extensive discretion in tailoring jury 8
instructions, provided that they correctly state the law and 9
fairly and adequately cover the issues presented.”). 10
The district court’s jury instruction here included 11
both scienter requirements, though they were not delineated 12
as independent elements. As to the first, the instruction 13
required the jury to find that the defendant “intentionally 14
joined and participated in the conspiracy.” As to the 15
second, the instruction required the jury to find “that the 16
purpose of the conspiracy was to acquire and export [SAMs].” 17
This adequately conveyed the knowledge requirement for the 18
underlying substantive offense; if the jury found that the 19
defendants intentionally joined a conspiracy that had as a 20
purpose to acquire and export SAMs, then the jury also found 21

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41
that the defendants knew the purpose of that conspiracy was 1
to acquire and export SAMs. 2
Viewed as a whole, the jury instruction “adequately 3
instructed the jury as to all factual findings required to 4
support conviction.” Quinones, 511 F.3d at 315. Therefore, 5
the instruction did not mislead the jury and was not 6
erroneous, let alone plainly so. 7
8
D 9
Finally, the defendants argue that the evidence 10
presented by the prosecution was legally insufficient to 11
establish that they conspired with each other to acquire and 12
export SAMs. 13
We review de novo challenges to criminal convictions 14
based on insufficiency of evidence; however, in assessing 15
the evidence, we apply the same deferential standard as the 16
district court, viewing the evidence in the light most 17
favorable to the government, drawing all reasonable 18
inferences in the government’s favor, and resolving all 19
questions of credibility in the government’s favor. United 20
States v. Abu-Jihaad, 630 F.3d 102, 135 (2d Cir. 2010). 21

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42
To overturn a conviction for insufficiency of the 1
evidence, a defendant must establish that, after construing 2
the evidence in the light most favorable to the prosecution, 3
there is an element of the crime of conviction that no 4
rational jury could have found beyond a reasonable doubt. 5
United States v. Hassan, 578 F.3d 108, 122 (2d Cir. 2008). 6
Knowledge of a conspiracy or proximity to it is by itself 7
insufficient to prove that a defendant joined the 8
conspiracy. United States v. Desimone, 119 F.3d 217, 223 9
(2d Cir. 1997). Still, the government may prove a 10
defendant’s involvement in a conspiracy through 11
circumstantial evidence, such as the defendant’s presence at 12
critical moments of the conspiracy, lack of surprise when 13
discussing the conspiracy with others, possession of items 14
important to the conspiracy, and making of false exculpatory 15
statements or otherwise exhibiting consciousness of guilt. 16
Id.; In re Terrorist Bombings of U.S. Embassies in East 17
Africa, 552 F.3d 93, 113 (2d Cir. 2008); United States v. 18
Rodriguez, 392 F.3d 539, 544 (2d Cir. 2004). 19
The defendants argue that the district court 20
erroneously allowed the prosecution to rely on evidence that 21
they engaged in other arms transactions with the informants 22

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43
to overcome the lack of evidence that they conspired with 1
each other to acquire and export SAMs. We disagree and 2
conclude that there was sufficient evidence that the 3
defendants conspired with each other to acquire and export 4
SAMs. 5
A conspiracy violation of § 2332g requires three 6
elements: (1) the defendants intended to agree (2) with each 7
other, not just with undercover agents, (3) to knowingly 8
acquire and export SAMs. See Desimone, 119 F.3d at 223 9
(“Because a conspiracy requires the participation of at 10
least two culpable co-conspirators, it follows that a person 11
who enters into such a conspiratorial agreement while acting 12
as an agent of the government, either directly or as a 13
confidential informant, lacks the criminal intent necessary 14
to render him a bona fide co-conspirator.” (brackets, 15
internal citations, and internal quotation marks omitted)). 16
At trial, the government presented evidence of the 17
following: (1) Al Kassar negotiated a sale of SAMs to the 18
DEA agents in the presence of al Ghazi and Godoy, 19
translating for al Ghazi as needed; (2) al Ghazi confessed 20
to working with al Kassar and Godoy to sell SAMs to the DEA 21
agents in order to make a profit; (3) in the presence of 22

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44
Godoy and al Ghazi, al Kassar provided the DEA with 1
schematics of SAMs and explained how the missiles could be 2
used to shoot down American helicopters; (4) Godoy and al 3
Kassar facilitated a meeting between the DEA agents and the 4
captain of the cargo ship that was to smuggle SAMs into 5
Suriname; (5) Godoy forwarded emails to al Kassar from the 6
DEA agents, which discussed al Kassar’s agreement to sell 7
SAMs to the DEA agents; (6) al Kassar and Godoy traveled to 8
factories that produced SAMs after meeting with the DEA 9
agents; (7) al Ghazi advised the DEA agents on how to 10
successfully negotiate the weapons deal with al Kassar, with 11
knowledge that the deal included SAMs; (8) Godoy and al 12
Ghazi traveled to Romania to pick up the final payment for a 13
sale of weapons that included SAMs. 14
Taken in the light most favorable to the prosecution 15
and drawing all reasonable inferences and credibility 16
determinations in its favor, we conclude that this evidence 17
was legally sufficient for a rational jury to conclude that 18
each of the three defendants intentionally conspired with 19
each other to knowingly acquire and export SAMs. 20
Having rejected all of the defendants’ challenges, we 21
affirm their convictions under 18 U.S.C. § 2332g. 22

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45
V 1
The defendants challenge their convictions under 2
18 U.S.C. § 2339B (prohibiting material support for a known 3
terrorist organization), arguing in the alternative that the 4
district court misinterpreted the statute’s scienter 5
requirements, or the statute is unconstitutional under the 6
Fifth Amendment. We review de novo questions of a statute’s 7
interpretation and constitutionality. United States v. 8
Pettus, 303 F.3d 480, 483 (2d Cir. 2002). 9
In relevant part, § 2339B states: 10
Whoever knowingly provides material support or 11
resources to a foreign terrorist organization, or 12
attempts or conspires to do so, shall be fined 13
under this title or imprisoned not more than 15 14
years, or both . . . . To violate this paragraph, 15
a person must have knowledge that the organization 16
is a designated terrorist organization . . . that 17
the organization has engaged or engages in 18
terrorist activity . . . or that the organization 19
has engaged or engages in terrorism. 20
21
18 U.S.C. § 2339B(a)(1). The statute thus imposes two 22
express scienter requirements: that the aid be intentional 23
and that the defendant know the organization he is aiding is 24
a terrorist organization or engages in acts of terrorism. 25
Id. The statute is silent as to whether the defendant must 26
intend that his aid support the terrorist aims of the 27
organization. 28

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46
The defendants argue that this specific intent 1
requirement should be read into the statute and that the 2
district court committed reversible error in failing to so 3
instruct the jury. This argument is foreclosed by Holder v. 4
Humanitarian Law Project, 130 S. Ct. 2705 (2010) (“Law 5
Project”). As Law Project interpreted § 2339B, it does not 6
require the government to show that a defendant who 7
supported a terrorist organization (which might do other 8
things) intended to aid its specifically terrorist aims: 9
“Congress plainly spoke to the necessary mental state for a 10
violation of § 2339B, and it chose knowledge about the 11
organization’s connection to terrorism, not specific intent 12
to further the organization’s terrorist activity.” Id. at 13
2717. We therefore reject the defendants’ request that we 14
read this scienter requirement into the statute. 15
The defendants argue, in the alternative, that absent 16
this scienter requirement the statute violates the Fifth 17
Amendment’s Due Process Clause in two ways: [i] by 18
criminalizing mere membership, and [ii] by criminalizing a 19
status insufficiently connected to illegal activity to 20
satisfy the “personal guilt” requirement of due process. 21
See Scales v. United States, 367 U.S. 203, 224-25 (1961) (a 22

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4 Law Project construed this as a First Amendment, not
Fifth Amendment, challenge, but its reasoning applies
equally to challenges under either Amendment.
47
law criminalizing mere membership in an organization, even 1
one that advocates illegal activity, violates Due Process); 2
id. (“[G]uilt is personal, and when the imposition of 3
punishment on a status or on conduct can only be justified 4
by reference to the relationship of that status or conduct 5
to other concededly criminal activity . . . that 6
relationship must be sufficiently substantial to satisfy the 7
. . . personal guilt” requirement of due process.). 8
Law Project, which upheld § 2339B against the claim 9
that it unconstitutionally criminalized mere membership, 10
also forecloses these arguments. 4 130 S. Ct. at 2730 (“[§ 11
2339B] does not penalize mere association with a foreign 12
terrorist organization. . . . What [it] prohibits is the 13
act of giving material support. . . . Our decisions 14
scrutinizing penalties on simple association or assembly are 15
therefore inapposite.”). We therefore reject the 16
defendants’ argument that the statute’s lack of a specific 17
intent requirement amounts to the criminalization of mere 18
membership. 19

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48
Law Project also concluded that the aid prohibited by 1
§ 2339B (whether accompanied by specific intent to further 2
the organization’s terrorist activity or not) is intimately 3
associated with criminal activity. Id. at 2729 (“Congress 4
and the Executive, however, have concluded [that] . . . the 5
designated foreign terrorist organizations are so tainted by 6
their criminal conduct that any contribution to such an 7
organization facilitates that conduct.”) (internal quotation 8
marks omitted). The “personal guilt” requirement of the Due 9
Process Clause is therefore satisfied by the knowing supply 10
of material aid to a terrorist organization. 11
For these reasons, we conclude that the district 12
court’s jury instruction was correct and that 18 U.S.C. § 13
2339B does not violate the Fifth Amendment, notwithstanding 14
that no proof is required that a defendant intend his aid to 15
support the terrorist activity of a terrorist group. 16
17
VI 18
Al Ghazi challenges the legal sufficiency of the 19
evidence that he conspired with al Kassar and Godoy to kill 20
U.S. officers and to materially support a known terrorist 21
organization. 18 U.S.C. §§ 1114, 1117, 2339B. The standard 22

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of review for this challenge is set out above in Section 1
IV.D. Under that standard, we reject al Ghazi’s challenge. 2
At trial, the government presented evidence of the 3
following: (1) al Ghazi told the DEA agents he knew al 4
Kassar was negotiating a weapons deal with FARC; (2) al 5
Ghazi told the DEA agents he knew FARC was a terrorist 6
organization; (3) al Ghazi told the DEA agents he knew the 7
weapons deal included SAMs; (4) al Ghazi told the DEA agents 8
he knew FARC intended to use the weapons they were buying to 9
kill U.S. military personnel; (5) al Ghazi told the DEA 10
agents he facilitated the weapons deal to get a commission; 11
(6) al Ghazi was present during key negotiations in the 12
weapons deal, with al Kassar translating for him when 13
Spanish was spoken; (7) al Ghazi stayed at al Kassar’s 14
mansion during the negotiations with no apparent purpose 15
other than to participate in them; (8) al Ghazi advised the 16
DEA agents how to successfully complete the weapons deal 17
with al Kassar; (9) al Kassar told the DEA agents that al 18
Ghazi was instrumental to his decision to negotiate with 19
them; and (10) al Ghazi went to Romania for the purpose of 20
receiving the final payment for the weapons that al Kassar 21
sold to the DEA agents, which included SAMs. Taken in the 22

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light most favorable to the prosecution and construing all 1
inferences and credibility determinations in its favor, this 2
evidence is sufficient for a reasonable jury to conclude 3
that al Ghazi intentionally agreed with al Kassar and Godoy 4
to acquire SAMs and other weapons, and to sell them to an 5
organization he knew engaged in terrorism and which he knew 6
would use those weapons to kill U.S. personnel. 7
We therefore reject al Ghazi’s insufficiency challenge. 8
9
CONCLUSION 10
For the reasons discussed above, the judgments of the 11
district court are AFFIRMED. 12

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