United States of America v. Mohamad Youssef Hammoud, a/k/a Ali Abousaleh, a/k/a Ali Albousaleh

Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MOHAMAD YOUSSEF HAMMOUD, a/k/a
Ali Abousaleh, a/k/a Ali
Albousaleh,
Defendant-Appellant, No. 03-4253 
CENTER FOR CONSTITUTIONAL RIGHTS;
NATIONAL COALITION TO PROTECT
POLITICAL FREEDOM; NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS; NATIONAL LAWYERS GUILD,
Amici Supporting Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-147-MU)
Argued: August 2, 2004
Decided: September 8, 2004
Before WILKINS, Chief Judge, and WIDENER, WILKINSON,
NIEMEYER, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING,
GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Vacated by Supreme Court, January 24, 2005

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Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King,
Shedd, and Duncan joined and in which Judge Widener joined as to
all except Part VII.C. Judge Wilkinson wrote a concurring opinion.
Judge Shedd wrote a concurring opinion. Judge Widener wrote a con-
curring and dissenting opinion. Judge Motz wrote a dissenting opin-
ion, in which Judges Michael and Gregory joined. Judge Gregory
wrote a dissenting opinion.
COUNSEL
ARGUED: Stanley Lewis Cohen, New York, New York; James P.
McLoughlin, Jr., MOORE & VAN ALLEN, PLLC, Charlotte, North
Carolina, for Appellant. Demetra Lambros, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: James W. Haldin, MOORE & VAN ALLEN, PLLC, Char-
lotte, North Carolina, for Appellant. Robert J. Conrad, Jr., United
States Attorney, Gretchen C.F. Shappert, United States Attorney, D.
Scott Broyles, Assistant United States Attorney, Charlotte, North Car-
olina; John F. DePue, John Douglas Wilson, Martha Rubio, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. David D. Cole, GEORGETOWN UNIVERSITY LAW
CENTER, Washington, D.C.; Nancy Chang, Shayana Kadidal, CEN-
TER FOR CONSTITUTIONAL RIGHTS, New York, New York;
Lisa Kemler, NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS, Alexandria, Virginia, for Amici Supporting
Appellant.
OPINION
WILKINS, Chief Judge:
Mohamad Hammoud appeals the sentence imposed following his
convictions of numerous offenses, all of which are connected to his
support of Hizballah, a designated foreign terrorist organization
(FTO). Hammoud also challenges two of his 14 convictions. The
appeal was argued before a three-judge panel, but prior to decision the
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court voted to hear the case en banc in order to consider the effect of
Blakely v. Washington, 124 S. Ct. 2531 (2004), on the federal sen-
tencing guidelines.
Following argument en banc, the court entered an order affirming
Hammoud’s convictions and sentence. See United States v. Ham-
moud, ___ F.3d ___, 2004 WL 1730309 (4th Cir. August 2, 2004).
We now set forth the reasoning for our judgment.
I. Facts
The facts underlying Hammoud’s convictions and sentence are
largely undisputed. We therefore recount them briefly.
A. Hizballah
Hizballah is an organization founded by Lebanese Shi’a Muslims
in response to the 1982 invasion of Lebanon by Israel. Hizballah pro-
vides various forms of humanitarian aid to Shi’a Muslims in Lebanon.
However, it is also a strong opponent of Western presence in the Mid-
dle East, and it advocates the use of terrorism in support of its agenda.
Hizballah is particularly opposed to the existence of Israel and to the
activities of the American government in the Middle East. Hizballah’s
general secretary is Hassan Nasserallah, and its spiritual leader is
Sheikh Fadlallah.
B. Hammoud
In 1992, Hammoud, a citizen of Lebanon, attempted to enter the
United States on fraudulent documents. After being detained by the
INS, Hammoud sought asylum. While the asylum application was
pending, Hammoud moved to Charlotte, North Carolina, where his
brothers and cousins were living. Hammoud ultimately obtained per-
manent resident status by marrying a United States citizen.
At some point in the mid-1990s, Hammoud, his wife, one of his
brothers, and his cousins all became involved in a cigarette smuggling
operation. The conspirators purchased large quantities of cigarettes in
North Carolina, smuggled them to Michigan, and sold them without
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paying Michigan taxes. This scheme took advantage of the fact that
Michigan imposes a tax of $7.50 per carton of cigarettes, while the
North Carolina tax is only 50¢. It is estimated that the conspiracy
involved a quantity of cigarettes valued at roughly $7.5 million and
that the state of Michigan was deprived of $3 million in tax revenues.
In 1996, Hammoud began leading weekly prayer services for Shi’a
Muslims in Charlotte. These services were often conducted at Ham-
moud’s home. At these meetings, Hammoud—who is acquainted with
both Nasserallah and Fadlallah, as well as Sheikh Abbas Harake, a
senior military commander for Hizballah—urged the attendees to
donate money to Hizballah. Hammoud would then forward the money
to Harake. The Government’s evidence demonstrated that on one
occasion, Hammoud donated $3,500 of his own money to Hizballah.
Based on these and other activities, Hammoud was charged with
various immigration violations, sale of contraband cigarettes, money
laundering, mail fraud, credit card fraud, and racketeering. Addition-
ally, Hammoud was charged with conspiracy to provide material sup-
port to a designated FTO and with providing material support to a
designated FTO, both in violation of 18 U.S.C.A. § 2339B (West
2000 & Supp. 2004). The latter § 2339B charge related specifically
to Hammoud’s personal donation of $3,500 to Hizballah.
At trial, one of the witnesses against Hammoud was Said Harb,
who grew up in the same Lebanese neighborhood as Hammoud. Harb
testified regarding his own involvement in the cigarette smuggling
operation and also provided information regarding the provision of
"dual use" equipment (such as global positioning systems, which can
be used for both civilian and military activities) to Hizballah. The
Government alleged that this conduct was part of the conspiracy to
provide material support to Hizballah. Harb testified that Hammoud
had declined to become involved in providing equipment because he
was helping Hizballah in his own way. Harb also testified that when
he traveled to Lebanon in September 1999, Hammoud gave him
$3,500 for Hizballah.
C. Conviction and Sentence
The jury convicted Hammoud of 14 offenses, only a few of which
were particularly relevant to the calculation of Hammoud’s sentence
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under the guidelines: money laundering and conspiracy to commit
money laundering, see 18 U.S.C.A. § 1956(a)(1), (h) (West 2000 &
Supp. 2004); transportation of contraband cigarettes, see 18 U.S.C.A.
§ 2342 (West 2000); and providing material support to a designated
FTO, see 18 U.S.C.A. § 2339B.
Applying the 2002 Guidelines Manual, the presentencing report
(PSR) recommended that the base offense level correspond to the
amount of tax evaded in the cigarette smuggling operation. See U.S.
Sentencing Guidelines Manual § 2S1.1(a)(1) (2002) (requiring appli-
cation of "[t]he offense level for the underlying offense from which
the laundered funds were derived"); id. § 2E4.1(a) (providing that the
offense level for a violation of 18 U.S.C.A. § 2342 is the greater of
9 or "the offense level from the table in §2T4.1 (Tax Table) corre-
sponding to the amount of the tax evaded"). The PSR concluded that
the amount of tax evaded was more than $2.5 million, resulting in a
base offense level of 24. See id. § 2T4.1(J). The PSR recommended
several upward adjustments to this base offense level: two levels for
conviction under 18 U.S.C.A. § 1956, see id. § 2S1.1(b)(2)(B); two
levels for sophisticated money laundering, see id. § 2S1.1(b)(3); four
levels for Hammoud’s role as an organizer or leader of criminal activ-
ity that involved five or more participants, see id. § 3B1.1(a); and two
levels for obstruction of justice, see id. § 3C1.1. Most significantly,
the PSR recommended a 12-level enhancement for committing a ter-
rorist act, see id. § 3A1.4(a). The terrorism enhancement also required
that Hammoud be assigned to Criminal History Category (CHC) VI,
see id. § 3A1.4(b); otherwise, Hammoud had no criminal history
points and would have been placed in CHC I. Ultimately, the PSR
recommended assignment of an adjusted offense level of 46 (to be
treated as offense level 43, see id. Chapter 5, Part A, comment. (n.2)),
which required a sentence of life imprisonment regardless of Ham-
moud’s CHC.
Hammoud filed objections to the PSR, in which he challenged the
factual basis for several of the upward adjustments. Hammoud also
objected to the calculation of his base offense level, asserting that it
was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466,
490 (2000) ("Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
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doubt."). Specifically, Hammoud argued that Apprendi required a jury
finding, beyond a reasonable doubt, of the amount of tax loss
involved in the offense. Hammoud also challenged the terrorism
enhancement under Apprendi, maintaining that the enhancement was
invalid without a jury finding that he possessed the requisite mental
state. Hammoud made similar arguments against the enhancements
for his leadership role and obstruction of justice.
The district court conducted a sentencing hearing at which it
rejected all of Hammoud’s sentencing challenges. The court therefore
concluded that the guidelines provided for a sentence of life imprison-
ment. Because none of the offenses of conviction carried a statutory
maximum of life imprisonment, the district court imposed the maxi-
mum sentence on each count and ordered all sentences to be served
consecutively. See U.S.S.G. § 5G1.2(d). This resulted in the imposi-
tion of a sentence of 155 years.
We begin by addressing Hammoud’s numerous challenges to his
convictions for providing (and conspiring to provide) material support
to a designated FTO. We then consider Hammoud’s claim that
Blakely operates to invalidate his sentence. Finally, we discuss Ham-
moud’s other challenges to his sentence.
II. Constitutionality of 18 U.S.C.A. § 2339B
Section 2339B, which was enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, provides for a maximum penalty of 15 years impris-
onment for any person who "knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires
to do so." 18 U.S.C.A. § 2339B(a)(1). The term "material support" is
defined as "currency or other financial securities, financial services,
lodging, training, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances,
explosives, personnel, transportation, and other physical assets,
except medicine or religious materials." 18 U.S.C.A. § 2339A(b)
(West 2000).1
1The definition of "material support" was amended in 2001. See 18
U.S.C.A. § 2339A(b) (West Supp. 2004). We rely on the definition in
effect at the time of the offenses.
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Hammoud maintains that § 2339B is unconstitutional in a number
of respects.2 Because Hammoud failed to bring these challenges
before the district court, our review is for plain error. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).
To establish plain error, Hammoud must show that an error occurred,
that the error was plain, and that the error affected his substantial
rights. See Olano, 507 U.S. at 732. Even if Hammoud makes this
three-part showing, correction of the error remains within our discre-
tion, which we "should not exercise . . . unless the error seriously
affects the fairness, integrity or public reputation of judicial proceed-
ings." Id. (alteration & internal quotation marks omitted).
A. Freedom of Association
Hammoud first contends that § 2339B impermissibly restricts the
First Amendment right of association. See U.S. Const. amend. I
("Congress shall make no law . . . abridging . . . the right of the people
peaceably to assemble . . . ."). Hammoud concedes (at least for pur-
poses of this argument) that Hizballah engages in terrorist activity.
But, he also notes the undisputed fact that Hizballah provides humani-
tarian aid to citizens of Lebanon. Hammoud argues that because Hiz-
ballah engages in both legal and illegal activities, he can be found
criminally liable for providing material support to Hizballah only if
he had a specific intent to further the organization’s illegal aims.
Because § 2339B lacks such a specific intent requirement, Hammoud
argues that it unconstitutionally restricts the freedom of association.
Cf. United States v. Al-Arian, 2004 WL 1769226, at *4-*5, *7-*8
(M.D. Fla. Aug. 4, 2004) (construing § 2339B as requiring proof of
specific intent to further illegal activity because less stringent inter-
pretation would raise constitutional questions regarding freedom of
association and "due process requirements of personal guilt").
It is well established that "[t]he First Amendment . . . restricts the
ability of the State to impose liability on an individual solely because
of his association with another." NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 918-19 (1982); see Scales v. United States, 367 U.S.
203, 229 (1961) (noting that a "blanket prohibition of association with
2Hammoud’s challenges to the constitutionality of § 2339B are sup-
ported by an amicus brief filed by a coalition of civil rights groups.
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a group having both legal and illegal aims . . . [would pose] a real
danger that legitimate political expression or association would be
impaired"). Therefore, it is a violation of the First Amendment to pun-
ish an individual for mere membership in an organization that has
legal and illegal goals. Any statute prohibiting association with such
an organization must require a showing that the defendant specifically
intended to further the organization’s unlawful goals. See Elfbrandt
v. Russell, 384 U.S. 11, 15-16 (1966). Hammoud maintains that
because § 2339B does not contain such a specific intent requirement,
his conviction violates the First Amendment.3
Hammoud’s argument fails because § 2339B does not prohibit
mere association; it prohibits the conduct of providing material sup-
port to a designated FTO. Therefore, cases regarding mere association
with an organization do not control. Rather, the governing standard
is found in United States v. O’Brien, 391 U.S. 367 (1968), which
applies when a facially neutral statute restricts some expressive con-
duct. Such a statute is valid
if it is within the constitutional power of the Government;
if it furthers an important or substantial governmental inter-
est; if the governmental interest is unrelated to the suppres-
sion of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.
Id. at 377.
Section 2339B satisfies all four prongs of the O’Brien test. First,
§ 2339B is clearly within the constitutional power of the government,
3Hammoud relies in part on cases holding that a donation to a political
advocacy group is a proxy for speech. See, e.g., Buckley v. Valeo, 424
U.S. 1, 16-17 (1976) (per curiam). Hizballah is not a political advocacy
group, however. Therefore, while providing monetary support to Hizbal-
lah may have an expressive component, it is not the equivalent of pure
political speech. See Humanitarian Law Project v. Reno, 205 F.3d 1130,
1134-35 (9th Cir. 2000) (rejecting argument that material support prohi-
bition is subject to strict scrutiny review under Buckley and similar
cases).
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in view of the government’s authority to regulate interactions between
citizens and foreign entities. See Regan v. Wald, 468 U.S. 222, 244
(1984) (holding that restrictions on travel to Cuba do not violate the
Due Process Clause). Second, there can be no question that the gov-
ernment has a substantial interest in curbing the spread of interna-
tional terrorism. See Humanitarian Law Project v. Reno, 205 F.3d
1130, 1135 (9th Cir. 2000). Third, the Government’s interest in curb-
ing terrorism is unrelated to the suppression of free expression. Ham-
moud is free to advocate in favor of Hizballah or its political
objectives—§ 2339B does not target such advocacy.
Fourth and finally, the incidental effect on expression caused by
§ 2339B is no greater than necessary. In enacting § 2339B and its sis-
ter statute, 18 U.S.C.A. § 2339A, Congress explicitly found that "for-
eign organizations that engage in terrorist activity are so tainted by
their criminal conduct that any contribution to such an organization
facilitates that conduct." AEDPA § 301(a)(7). As the Ninth Circuit
reasoned,
[i]t follows that all material support given to [foreign terror-
ist] organizations aids their unlawful goals. Indeed, . . . ter-
rorist organizations do not maintain open books. Therefore,
when someone makes a donation to them, there is no way
to tell how the donation is used. Further, . . . even contribu-
tions earmarked for peaceful purposes can be used to give
aid to the families of those killed while carrying out terrorist
acts, thus making the decision to engage in terrorism more
attractive. More fundamentally, money is fungible; giving
support intended to aid an organization’s peaceful activities
frees up resources that can be used for terrorist acts.
Humanitarian Law Project, 205 F.3d at 1136 (footnote omitted). In
light of this reasoning, the prohibition on material support is ade-
quately tailored to the interest served and does not suppress more
speech than is necessary to further the Government’s legitimate goal.
We therefore conclude that § 2339B does not infringe on the constitu-
tionally protected right of free association.
B. Overbreadth
Hammoud next argues that § 2339B is overbroad. A statute is over-
broad only if it "punishes a substantial amount of protected free
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speech, judged in relation to the statute’s plainly legitimate sweep."
Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (internal quotation
marks omitted). The overbreadth must be substantial "not only in an
absolute sense, but also relative to the scope of the law’s plainly legit-
imate applications." Id. at 120. It is also worth noting that when, as
here, a statute is addressed to conduct rather than speech, an over-
breadth challenge is less likely to succeed. See id. at 124 ("Rarely, if
ever, will an overbreadth challenge succeed against a law or regula-
tion that is not specifically addressed to speech or to conduct neces-
sarily associated with speech (such as picketing or demonstrating).").
Hammoud argues that § 2339B is overbroad because (1) it prohib-
its mere association with an FTO, and (2) it prohibits such plainly
legitimate activities as teaching members of an FTO how to apply for
grants to further the organization’s humanitarian aims. As discussed
above, § 2339B does not prohibit mere association with an FTO and
therefore is not overbroad on that basis. Regarding Hammoud’s sec-
ond overbreadth argument, it may be true that the material support
prohibition of § 2339B encompasses some forms of expression that
are entitled to First Amendment protection.4 Cf. Humanitarian Law
Project, 205 F.3d at 1138 (holding that "training" prong of material
support definition is vague because it covers such forms of protected
expression as "instruct[ing] members of a designated group on how
to petition the United Nations to give aid to their group"). Hammoud
has utterly failed to demonstrate, however, that any overbreadth is
substantial in relation to the legitimate reach of § 2339B. See Hicks,
539 U.S. at 122 ("The overbreadth claimant bears the burden of dem-
onstrating, from the text of the law and from actual fact, that substan-
tial overbreadth exists." (alteration & internal quotation marks
omitted)).
C. Vagueness
Hammoud next argues that the term "material support" is unconsti-
tutionally vague. "The void-for-vagueness doctrine requires that penal
4A defendant who is prosecuted because his protected speech is inci-
dentally covered by a broader ban on unprotected activity may bring an
as-applied challenge. Hammoud is not such a defendant for the reasons
previously articulated.
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statutes define crimes so that ordinary people can understand the con-
duct prohibited and so that arbitrary and discriminatory enforcement
is not encouraged." United States v. McLamb, 985 F.2d 1284, 1291
(4th Cir. 1993). In evaluating whether a statute is vague, a court must
consider both whether it provides notice to the public and whether it
adequately curtails arbitrary enforcement. See Kolender v. Lawson,
461 U.S. 352, 357-58 (1983).
Section 2339B easily satisfies this standard. As noted above, the
term "material support" is specifically defined as a number of enu-
merated actions. Hammoud relies on Humanitarian Law Project, in
which the Ninth Circuit ruled that two components of the material
support definition—"personnel" and "training"—were vague. See
Humanitarian Law Project, 205 F.3d at 1137-38. The possible vague-
ness of these prongs of the material support definition does not affect
Hammoud’s conviction, however, because he was specifically
charged with providing material support in the form of currency. See
United States v. Rahman, 189 F.3d 88, 116 (2d Cir. 1999) (per
curiam) (rejecting vagueness challenge because allegedly vague term
was not relevant to Appellant’s conviction). There is nothing at all
vague about the term "currency."
D. Designation of an FTO
Hammoud’s final challenge to the constitutionality of § 2339B
concerns his inability to challenge the designation of Hizballah as an
FTO. Section 2339B(g)(6) defines "terrorist organization" as "an
organization designated [by the Secretary of State] as a terrorist orga-
nization under [8 U.S.C.A. § 1189 (West 1999 & Supp. 2004)]." Sec-
tion 1189(a)(8) explicitly prohibits a defendant in a criminal action
from challenging a designation. Hammoud argues that his inability to
challenge the designation of Hizballah as an FTO is a violation of the
Constitution.
Hammoud primarily argues that § 1189(a)(8) deprives him of his
constitutional right to a jury determination of guilt on every element
of the charged offense.5 See United States v. Gaudin, 515 U.S. 506,
5On a related note, Hammoud argues that the designation of an organi-
zation as an FTO is a "fact" that increases the available penalty, and
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509-10 (1995) (holding that the Fifth and Sixth Amendments "require
criminal convictions to rest upon a jury determination that the defen-
dant is guilty of every element of the crime with which he is charged,
beyond a reasonable doubt"). This right has not been violated, how-
ever. "[I]n determining what facts must be proved beyond a reason-
able doubt the . . . legislature’s definition of the elements of the
offense is usually dispositive . . . ." McMillan v. Pennsylvania, 477
U.S. 79, 85 (1986). Here, Congress has provided that the fact of an
organization’s designation as an FTO is an element of § 2339B, but
the validity of the designation is not. Therefore, Hammoud’s inability
to challenge the designation is not a violation of his constitutional
rights. See United States v. Bozarov, 974 F.2d 1037, 1045-46 (9th Cir.
1992) (holding that defendant’s inability to challenge administrative
classification did not violate due process because the validity of the
classification was not an element of the offense).
Hammoud next argues that § 1189(a) violates the nondelegation
doctrine because the designation of an organization as an FTO is not
subject to judicial review. In the first place, it is not clear whether the
nondelegation doctrine requires any form of judicial review. Compare
Bozarov, 974 F.2d at 1041-45 (rejecting claim that a congressional
delegation of authority was unconstitutional because the agency’s
action was not subject to judicial review), with Touby v. United
States, 500 U.S. 160, 168-69 (1991) (rejecting claim that temporary
regulation violated nondelegation doctrine on basis that permanent
regulation was subject to judicial review and temporary regulation
could be challenged in criminal proceedings). In any event, an FTO
designation is subject to judicial review—the designation may be
challenged by the organization itself, see 8 U.S.C.A. § 1189(b).
III. Surveillance Evidence
A. FISA Materials
At trial, the Government introduced into evidence several recorded
telephone conversations between Hammoud and others. These record-
therefore must be found by the jury under Apprendi v. New Jersey, 530
U.S. 466 (2000). Apprendi does not apply here, however, because the
designation does not allow an increased penalty beyond that authorized
by the elements of the offense (which, as noted in the text, do not include
the validity of the FTO designation).
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ings were obtained through a wiretap pursuant to the Foreign Intelli-
gence Surveillance Act of 1978 (FISA), 50 U.S.C.A. §§ 1801-1862
(West 2003 & Supp. 2004). Hammoud argues that the wiretap autho-
rization was not based upon probable cause; that the official certifica-
tion that the wiretaps were seeking foreign intelligence information
was clearly erroneous; and that the Government failed to take ade-
quate measures to ensure that the invasion of Hammoud’s privacy
was no greater than necessary.
FISA was enacted to create a framework whereby the Executive
could conduct electronic surveillance for foreign intelligence pur-
poses without violating the rights of citizens. See United States v.
Squillacote, 221 F.3d 542, 552 (4th Cir. 2000). FISA created a special
court composed of district court judges appointed by the Chief Justice
of the United States; with certain exceptions not relevant here, a FISA
judge must approve in advance all electronic surveillance of a foreign
power or its agents. See 50 U.S.C.A. §§ 1802, 1804.
1. Probable Cause
Before authorizing surveillance, a FISA judge must determine that
there is probable cause to believe that, as is relevant here, "the target
of the electronic surveillance is . . . an agent of a foreign power" and
that "each of the facilities or places at which the electronic surveil-
lance is directed is being used, or is about to be used, by . . . an agent
of a foreign power." 50 U.S.C.A. § 1805(a)(3). A "foreign power"
includes "a group engaged in international terrorism or activities in
preparation therefor." Id. § 1801(a)(4). An "agent of a foreign power"
is "any person who . . . knowingly engages in sabotage or interna-
tional terrorism, or activities that are in preparation therefor, for or on
behalf of a foreign power." Id. § 1801(b)(2)(C). Hammoud concedes
that Hizballah is a foreign power under FISA, but he argues that the
Government did not have probable cause to believe that he was an
agent of Hizballah.
"[P]robable cause is a fluid concept—turning on the assessment of
probabilities in particular factual contexts—not readily, or even use-
fully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S.
213, 232 (1983). In evaluating whether probable cause exists, it is the
task of the issuing judge "to make a practical, common-sense decision
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whether, given all the circumstances set forth in the affidavit . . . ,
there is a fair probability" that the search will be fruitful. Id. at 238;
see Mason v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995) ("Probable
cause means more than bare suspicion but less than absolute certainty
that a search will be fruitful.").
Hammoud’s motion to suppress the FISA evidence was referred to
a magistrate judge, who reviewed the FISA applications and support-
ing materials in camera and concluded that there was probable cause
to believe that Hammoud was an agent of a foreign power. See 50
U.S.C.A. § 1806(f). The magistrate judge therefore recommended
denial of the motion to suppress. The district court adopted this rec-
ommendation after considering Hammoud’s objections to the report
and recommendation, independently reviewing the materials, and
conducting a hearing.
Having conducted our own de novo review of the materials, see
Squillacote, 221 F.3d at 554, we reach the same conclusion as the
magistrate judge and the district court. Further, upon review of the
materials we are satisfied that the probable cause finding was not
based "solely upon . . . activities protected by the first amendment to
the Constitution of the United States." 50 U.S.C.A. § 1805(a)(3)(A).
We will not elaborate on the contents of the materials in light of the
Attorney General’s assessment that disclosure of the information con-
tained in the application and supporting documents would endanger
national security.
2. Certification
An application for a FISA warrant must include a certification by
an executive branch official stating, inter alia, that the information
sought is foreign intelligence information and that the purpose of the
surveillance is to obtain such information.6 See id. § 1804(a)(7).
6When the Government applied for a FISA warrant to conduct elec-
tronic surveillance of Hammoud, FISA required a certification that the
acquisition of foreign intelligence information was "the purpose" of the
surveillance. In 2001, Congress amended FISA to require a certification
that the acquisition of foreign intelligence information is "a significant
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When the target of surveillance is a United States person, the FISA
judge must find that the certification is not clearly erroneous before
issuing a warrant. See id. § 1805(a)(5). "A finding is ‘clearly errone-
ous’ when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm convic-
tion that a mistake has been committed." United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948).
Hammoud asserts that the certification was clearly erroneous for
two reasons. First, he maintains that the Government failed to demon-
strate that the information it sought to obtain through the proposed
electronic surveillance was foreign intelligence information. Second,
he claims that obtaining foreign intelligence information was not the
"primary purpose" of the surveillance; rather, the purpose of the sur-
veillance was to obtain evidence for use in the criminal investigation.
Cf. United States v. Truong Dinh Hung, 629 F.2d 908, 915-16 (4th
Cir. 1980) (suppressing fruits of electronic surveillance after date that
investigation of defendant became "primarily a criminal investiga-
tion").
a. Foreign Intelligence Information
FISA defines "foreign intelligence information" in pertinent part as
information that relates to, and if concerning a United States
person is necessary to, the ability of the United States to
protect against—
(A) actual or potential attack or other grave hos-
tile acts of a foreign power or an agent of a foreign
power;
purpose" of the surveillance. See Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terror-
ism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, § 218, 115
Stat. 272, 291 (2001). For purposes of this appeal, we will assume that
the higher standard imposed by the pre-USA PATRIOT Act version of
FISA controls.
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(B) sabotage or international terrorism by a for-
eign power or an agent of a foreign power; or
(C) clandestine intelligence activities by . . . an
agent of a foreign power . . . .
50 U.S.C.A. § 1801(e)(1). We reject Hammoud’s contention that
there is no evidence to support the Government’s certification regard-
ing the character of the information sought to be obtained through
electronic surveillance of Hammoud. The materials submitted in con-
nection with the FISA application warrant a conclusion that the certi-
fication was not clearly erroneous.
b. Primary Purpose
The Government disputes that FISA requires the collection of for-
eign intelligence information to be the "primary purpose" of elec-
tronic surveillance. Among other things, it notes that Truong, in
which this court first articulated the primary purpose test, was a pre-
FISA decision. See generally In re Sealed Case, 310 F.3d 717, 722-
27 (Foreign Int. Surv. Ct. Rev. 2002) (per curiam) (tracing history of
primary purpose requirement and concluding that requirement is not
supported by text or legislative history of FISA). However, even if the
primary purpose test applies, it is satisfied here. The information in
the affidavit supports a conclusion that the FBI was primarily inter-
ested in obtaining foreign intelligence information.7
7Hammoud suggests that the FBI should have abandoned the surveil-
lance when it became clear that no foreign intelligence information
would be obtained. Hammoud provides no argument supporting this
claim, however, and we therefore do not consider it. See Fed. R. App. P.
28(a)(9)(A) (providing that the appellant’s brief must contain "appel-
lant’s contentions and the reasons for them, with citations to the authori-
ties and parts of the record on which the appellant relies"); 11126
Baltimore Blvd., Inc. v. Prince George’s County, 58 F.3d 988, 993 n.7
(4th Cir. 1995) (en banc) (declining to consider arguments for failure to
comply with Rule 28).
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3. Minimization
In his last challenge to the FISA evidence, Hammoud argues that
the Government failed to minimize the surveillance of him, as FISA
requires. See 50 U.S.C.A. § 1805(a)(4); id. § 1801(h)(1) (defining
"minimization procedures" as "specific procedures . . . that are rea-
sonably designed . . . to minimize the acquisition and retention, and
prohibit the dissemination, of nonpublicly available information con-
cerning unconsenting United States persons"). Hammoud’s entire
argument on this point consists of two assertions: that "[t]he surveil-
lance records contained no foreign intelligence information" and that
the records "contain many conversations about personal matters unre-
lated to any crime." Br. for Appellant Mohamad Y. Hammoud at 51.
We take Hammoud’s argument to be that the minimization proce-
dures must have been inadequate because many personal conversa-
tions were recorded and obtained during the course of the
surveillance.
In enacting FISA, Congress recognized that "no electronic surveil-
lance can be so conducted that innocent conversations can be totally
eliminated." S. Rep. No. 95-701, at 39 (1978) (internal quotation
marks omitted), reprinted in 1978 U.S.C.C.A.N. 3973, 4008. The
minimization requirement obligates the Government to make a good
faith effort to minimize the acquisition and retention of irrelevant
information. See id. at 39-40. However, it is not always immediately
clear into which category a particular conversation falls. A conversa-
tion that seems innocuous on one day may later turn out to be of great
significance, particularly if the individuals involved are talking in
code. Cf. United States v. Salameh, 152 F.3d 88, 154 (2d Cir. 1998)
(per curiam) (noting that two conspirators involved in the 1993 bomb-
ing of the World Trade Center in New York referred to the plot as the
"study" and to relevant materials as "university papers"). In view of
these considerations, the mere fact that innocent conversations were
recorded, without more, does not establish that the government failed
to appropriately minimize surveillance.
B. Canadian Intelligence Summaries
Between February 1996 and September 2000, the Canadian Secur-
ity Intelligence Service (CSIS) conducted electronic surveillance of a
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coconspirator in Canada. A number of these recordings were
destroyed pursuant to routine procedures. However, summaries and
analysis of the conversations were prepared by a CSIS communica-
tions analyst shortly after each conversation was recorded. At trial,
the Government sought to introduce the factual portions of some of
these summaries (the analysis was redacted from the summaries
before submission to the jury).
During pretrial proceedings, the district court ruled that the CSIS
summaries were admissible as recorded recollections, see Fed. R.
Evid. 803(5), and as public records, see id. Rule 803(8). At trial,
Hammoud stipulated to the admissibility of the summaries. See J.A.
2827 ("Your Honor, with respect to these exhibits, there’s a stipula-
tion among the parties that the Canadian Security Intelligence Ser-
vice’s factual summaries are admissible pursuant to Federal Rule of
Evidence 803(5), past recollection recorded exception to hearsay rules
and that they are authentic and accurate.").
Hammoud now maintains that admission of the summaries was
error. However, all of his arguments are negated by his stipulation;
thus, Hammoud waived any objection. See United States v. Aptt, 354
F.3d 1269, 1280 (10th Cir. 2004) (explaining that "[a] defendant is
free to waive objections to evidence by stipulation" and that "admis-
sion of a stipulated exhibit is not error . . . , even if it would not be
admissible in the absence of such a stipulation").
IV. Expert Testimony
During trial, the district court allowed Matthew Levitt to testify as
an expert regarding terrorist organizations and Hizballah. Hammoud
argues that the admission of Levitt’s testimony was improper on two
grounds: first, that the testimony should have been excluded in light
of the Government’s failure to comply with a discovery order; and
second, that Levitt’s testimony failed the standard for the admissibil-
ity set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). Hammoud also argues that the district court abused
its discretion in refusing to allow him to cross-examine Levitt regard-
ing classified matters. We reject all three of these claims.
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A. Rule 16 Violation
The district court ordered the Government to produce all discovery
by October 31, 2001; the order stated that "[d]iscovery produced after
that date will not be admitted at trial absent a showing of extreme
need." J.A. 347. On November 1, the Government filed a notice of
compliance which included a section entitled "Discovery material not
yet available to defendants." Id. at 367. In this section, the Govern-
ment informed the court that it was still seeking the aid of an expert
on Hizballah. The Government also acknowledged that it would have
to obtain leave of the court prior to offering such expert testimony at
trial. In response to a motion filed by Hammoud’s codefendant
(Chawki Hammoud, who is Hammoud’s brother), the Government
informed the court on December 11 that it still had not obtained an
expert on Hizballah; the Government stated that "[w]hen it has [found
an expert], notice will be given and litigation, including the timeliness
of disclosure, can commence." Id. at 410. In the meantime, the Gov-
ernment requested that the motions deadline be extended to account
for ongoing discovery.
On April 10, 2002, the Government filed a notice of its intent to
call Levitt, see Fed. R. Crim. P. 16(a)(1)(G),8 and requested leave of
the court to admit Levitt’s testimony. The Government noted that
Levitt expected to complete a summary of his testimony by April 26,
at which point it would be submitted to the defense. The Government
filed the notice and summary on May 3.
At a hearing concerning the timeliness of the disclosure, Ham-
moud’s attorney argued that he did not have adequate time to prepare
to cross-examine Levitt. However, defense counsel also told the court
that neither he nor Hammoud wanted a continuance. Noting that the
Government had kept the court and defense counsel apprized of its
search for an expert, the district court declined to sanction the Gov-
ernment by excluding Levitt’s testimony.
8When the Government filed its notice, the relevant provision was
Rule 16(a)(1)(E). The rule was amended in 2002, and subsection
(a)(1)(E) was relettered (a)(1)(G). There was no change in the text.
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Rule 16 grants the district court substantial discretion in dealing
with a violation of a discovery order.9 See Fed. R. Crim. P. 16(d)(2)
(providing that a failure to comply may be remedied by an order
directing compliance, a continuance, exclusion of the evidence, or
"any other order that is just under the circumstances"); see also
United States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001) ("[O]n its
face, the Rule does not require a district court to do anything—Rule
16 merely states that the court ‘may’ take [one of the enumerated]
actions."). In determining what sanction, if any, to impose for a dis-
covery violation, the district court
must weigh the reasons for the government’s delay and
whether it acted intentionally or in bad faith; the degree of
prejudice, if any, suffered by the defendant; and whether
any less severe sanction will remedy the prejudice and the
wrongdoing of the government.
United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997). The
court must impose the least severe sanction that will "adequately pun-
ish the government and secure future compliance." Id. A continuance
is the preferred sanction. See United States v. Golyansky, 291 F.3d
1245, 1249 (10th Cir. 2002) ("It would be a rare case where, absent
bad faith, a district court should exclude evidence rather than continue
the proceedings."). The sanction decision is reviewed for abuse of dis-
cretion. See Hastings, 126 F.3d at 316.
Here, the district court acknowledged the Government’s discovery
violation but elected not to impose a sanction after defense counsel
declined to accept a continuance. Its refusal to exclude Levitt’s testi-
mony was not an abuse of discretion. The Government made clear,
well before the discovery deadline, that it was seeking an expert to
testify that Hammoud was the leader of a Hizballah cell. Additionally,
the Government detailed its difficulties in obtaining such an expert
and promptly identified Levitt when he had been retained. Under
9The Government contends that it complied fully with Rule 16 because
it kept Hammoud and the district court informed of its continuing efforts
to secure an expert on Hizballah. This claim is not persuasive, however.
The district court set a clear deadline for discovery, and there is no dis-
pute that the deadline passed before the Government identified Levitt.
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these circumstances, the district court did not abuse its discretion in
refusing to exclude Levitt’s testimony.
B. Daubert
Federal Rule of Evidence 702 provides that "[i]f scientific, techni-
cal, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise."
The Supreme Court has held that Rule 702 requires the district court
to perform a gatekeeping function to "ensure that any and all scien-
tific testimony or evidence admitted is not only relevant, but reliable."
Daubert, 509 U.S. at 589.
When, as here, the proffered expert testimony is not scientific in
nature, the district court must still perform the gatekeeping function.
See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999). In
determining whether proffered expert testimony is reliable, the district
court has broad discretion to consider whatever factors bearing on
validity that the court finds to be useful; the particular factors will
depend upon the unique circumstances of the expert testimony
involved. See id. at 152-53. "The court, however, should be conscious
of two guiding, and sometimes competing, principles": (1) "that Rule
702 was intended to liberalize the introduction of relevant expert evi-
dence"; and (2) "that due to the difficulty of evaluating their testi-
mony, expert witnesses have the potential to be both powerful and
quite misleading." Westberry v. Gislaved Gummi AB, 178 F.3d 257,
261 (4th Cir. 1999) (internal quotation marks omitted).
The district court conducted a Daubert hearing, during which
Levitt testified that his expertise regarding Hizballah derived from his
previous experience with the FBI and his current employment with a
think tank, at which he specialized in Middle Eastern terrorist groups.
Levitt testified that as part of his duties, he spent "a lot of [his] time
. . . on Hizballah." J.A. 2357. Levitt described his general methodol-
ogy as follows:
Well, we’re talking about a social science here. This is not
scientific research. Basic academic intellectual research
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combined with the techniques I was taught in . . . various
courses I took as an analyst for the government both taught
that the best way to go about making sense of something in
the social sciences is to collect as much information as pos-
sible and to balance each new incoming piece of informa-
tion against the body of information that you’ve built to that
point.
. . . .
. . . So it’s a constant vetting process. And the more rigor-
ous you are, the better your information will be.
J.A. 2344-45. Levitt further testified that his work was subject to "tre-
mendous peer review," id. at 2345, and that his regular practice was
to discuss his findings and conclusions with others to ensure their
soundness. Levitt stated that he followed this process in reaching his
opinion in this case.
In view of this testimony, the district court did not abuse its discre-
tion in qualifying Levitt as an expert. Levitt identified his methodol-
ogy as one generally employed in the social sciences, and Hammoud
did not challenge this testimony. Additionally, Levitt testified that he
actually applied this methodology in reaching his conclusions regard-
ing this case.
Hammoud also argues that Levitt’s testimony should have been
excluded on the grounds that it was not helpful to the jury. Again, the
district court did not abuse its discretion. Levitt testified regarding the
structure of Hizballah and identified its leaders. Levitt also explained
the significance of Hammoud’s contact with those leaders (most nota-
bly Sheikh Fadlallah, the spiritual leader of Hizballah). And, Levitt
discussed the nature of Hizballah’s funding activities with specific
reference to Hammoud’s activities. This testimony was critical in
helping the jury understand the issues before it.
C. Classified Information
During the Daubert hearing and at trial, the district court prohibited
defense counsel from questioning Levitt regarding classified matters
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relating to Levitt’s employment with the FBI. Hammoud maintains
that this restriction violated the Classified Information Procedures Act
(CIPA), 18 U.S.C.A. App. 3 §§ 1-16 (West 2000 & Supp. 2004), and
the Confrontation Clause of the Sixth Amendment. We reject both of
these contentions.
1. CIPA
CIPA was enacted in 1980 to combat the problem of "graymail,"
an attempt by a defendant to derail a criminal trial by threatening to
disclose classified information. See S. Rep. No. 96-823, at 2 (1980),
reprinted in 1980 U.S.C.C.A.N. 4294, 4295; see also id. at 3 (noting
that problem of graymail is not "limited to instances of unscrupulous
or questionable conduct by defendants since wholly proper defense
attempts to obtain or disclose classified information may present the
government with the same ‘disclose or dismiss’ dilemma" (internal
quotation marks omitted)), reprinted in 1980 U.S.C.C.A.N. at 4296-
97. CIPA requires a criminal defendant who "reasonably expects to
disclose or to cause the disclosure of classified information in any
manner in connection with any trial or pretrial proceeding" to notify
the district court and the Government "within the time specified by
the court or, where no time is specified, within thirty days prior to
trial." 18 U.S.C.A. App. 3 § 5(a). The Government may then request
a hearing, at which the district court must determine whether the clas-
sified information in question is relevant and admissible. See id.
§ 6(a).
During the course of the Daubert hearing regarding Levitt’s expert
testimony, the district court refused to allow Hammoud to cross-
examine Levitt regarding classified matters relating to Levitt’s former
employment with the FBI. Hammoud argues that this information was
relevant and material to his cross-examination of Levitt and that its
non-disclosure violated CIPA; he further maintains that the proper
remedy for the non-disclosure is exclusion of Levitt’s testimony. We
disagree.
The triggering event for the imposition of sanctions under CIPA is
the Government’s refusal to comply with an order of the district court
directing the disclosure of classified information. See 18 U.S.C.A.
App. 3 § 6(e). Such a refusal must necessarily be preceded by a dis-
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trict court determination that the classified information is relevant and
admissible. See id.; United States v. Smith, 780 F.2d 1102, 1105 (4th
Cir. 1985) (en banc). Here, however, the district court determined that
the classified information related to Levitt’s work at the FBI was not
relevant because he did not rely on that information in forming his
opinion. Because the district court never ordered the disclosure of
classified information (and properly so, as we discuss below), the
Government never had occasion to refuse to produce the information.
We therefore conclude that CIPA is not implicated.10
2. Confrontation Clause
Hammoud next maintains that the district court violated his Sixth
Amendment right to confront the witnesses against him when the
court refused to allow him to cross-examine Levitt regarding classi-
fied matters. We conclude that this claim fails because Levitt did not
rely on any classified information in forming his opinion regarding
Hammoud’s membership in Hizballah.
The Constitution guarantees the right of a criminal defendant "to
be confronted with the witnesses against him." U.S. Const. amend.
VI. "The main and essential purpose of confrontation is to secure for
the [defendant] the opportunity of cross-examination." Davis v.
Alaska, 415 U.S. 308, 315-16 (1974) (emphasis & internal quotation
marks omitted). Indeed, "[c]ross-examination is the principal means
by which the believability of a witness and the truth of his testimony
are tested." Id. at 316. Nevertheless, the district court retains "wide
latitude . . . to impose reasonable limits on . . . cross-examination
based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is
10The timeliness of the CIPA claim also provides a potential basis for
rejection of Hammoud’s claim. The CIPA issue was first raised by
Chawki Hammoud in a motion filed during the course of trial (this
motion was joined by Hammoud). Chawki Hammoud acknowledged that
his motion was untimely under CIPA § 5(a) but asserted that the untime-
liness resulted from the Government’s failure to comply with its discov-
ery obligations and therefore should be excused. In view of our
conclusion that CIPA is not implicated here for other reasons, we do not
address the timeliness of the CIPA claim.
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repetitive or only marginally relevant." Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986). We review such limitations for abuse of discre-
tion. See United States v. Turner, 198 F.3d 425, 429 (4th Cir. 1999).
In support of this claim, Hammoud relies on United States v.
Baptista-Rodriguez, 17 F.3d 1354 (11th Cir. 1994), in which the Elev-
enth Circuit ruled that the defendant (Diaz) suffered a Confrontation
Clause violation when the district court prohibited him from cross-
examining a witness regarding the existence and contents of a classi-
fied document. See id. at 1366-67. The document in question related
to Diaz’s defense that he was working with the FBI at the time of the
drug transaction with which he was charged. See id. at 1366-68.
The Government, in contrast, relies on two First Circuit cases,
United States v. Angiulo (Angiulo I), 847 F.2d 956 (1st Cir. 1988),
and United States v. Angiulo (Angiulo II), 897 F.2d 1169 (1st Cir.
1990), both of which involved expert testimony regarding the defen-
dants’ relationship to La Cosa Nostra. See Angiulo II, 897 F.2d at
1187; Angiulo I, 847 F.2d at 973. The district court prohibited the
defendants in each case from questioning the expert about the identity
of the informants whose information formed much of the basis for the
expert’s knowledge of La Cosa Nostra. The First Circuit affirmed,
reasoning:
[T]he experts acknowledged that information gleaned from
informants over the course of their FBI careers was part of
the vast mix of material that contributed to their background
expertise on La Cosa Nostra. This expertise, in turn, enabled
them to listen to the tapes and form opinions on defendants’
criminal activities. The fact that informant information fur-
nished some part of the experts’ background knowledge
does not implicate the sixth amendment. Regardless of the
information that contributed to their background expertise,
the experts’ testimony regarding the particular charges
against these defendants was based solely on an analysis of
the tape recordings [that were played at trial].
Angiulo II, 897 F.2d at 1188; see Angiulo I, 847 F.2d at 974 (employ-
ing similar reasoning).
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We agree with the Government that the situation before us is more
akin to the Angiulo cases than to Baptista-Rodriguez. Levitt stated
during the Daubert hearing that while his general knowledge regard-
ing Hizballah derived in part from his classified work with the FBI,
he did not rely on any classified information in forming his opinion
regarding Hammoud’s relationship to Hizballah. Rather, as did the
experts in the Angiulo cases, Levitt based his opinion regarding Ham-
moud’s Hizballah membership on unclassified surveillance evidence
obtained by the Government during the course of its investigation.
The classified information therefore was not relevant to the question
of Hammoud’s guilt, and the district court did not abuse its discretion
in refusing to allow cross-examination regarding classified materials.
V. Videotapes
Hammoud next asserts that the district court abused its discretion
in allowing the Government to play for the jury some of the Hizballah
videotapes found in his apartment. Hammoud claims that the contents
of the tapes were irrelevant and, alternatively, that if the tapes were
relevant, they were unduly prejudicial. See Fed. R. Evid. 403
("Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice . . . .").11
Hammoud also argues that the manner in which the Government pre-
sented the videotape evidence unfairly prejudiced him. We review the
evidentiary rulings of the district court for abuse of discretion. See
United States v. Leftenant, 341 F.3d 338, 342 (4th Cir. 2003), cert.
denied, 124 S. Ct. 1183 (2004). Hammoud’s challenge to the means
11Hammoud also cites Rule 404(b), which prohibits—with certain
exceptions—the admission of prior bad acts that are extrinsic to the
crime charged in order "to prove the character of a person in order to
show action in conformity therewith." Fed. R. Crim. P. 404(b); see
United States v. Higgs, 353 F.3d 281, 311 (4th Cir. 2003), petition for
cert. filed, No. 03-10498 (U.S. May 21, 2004). Rule 404(b) is simply not
relevant here. To the extent the "bad act" is the playing of the videotapes
during Thursday night prayer meetings, it was intrinsic to the charged
crime of providing material support to Hizballah. To the extent the "bad
act" was the activities depicted in the videotapes, none of the tapes
depicted actions by Hammoud, and the character of the people depicted
in the tapes was not at issue.
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of presenting the videotape evidence will succeed only if "the conduct
so infected the trial with unfairness as to make the resulting convic-
tion a denial of due process." United States v. Scheetz, 293 F.3d 175,
185 (4th Cir. 2002) (internal quotation marks omitted).
A. Relevance
The indictment alleged that as one of the overt acts of the conspir-
acy to provide material support to an FTO, Hammoud conducted
meetings in his home during which he spoke about Hizballah opera-
tions and played Hizballah videotapes. At trial, the Government
sought to prove that the meetings were not solely religious meetings,
as Hammoud contended, but rather were integral to the operation of
a Hizballah cell in Charlotte. In support of this claim, the Government
played excerpts from some of the videotapes seized from Hammoud’s
home. The segments played by the Government included speeches by
Hizballah leaders praising men who had martyred themselves and
crowds shouting "Death to America" and "Death to Israel." J.A. 2225.
Another tape depicted a group swearing to become martyrs "to shake
the grounds under our enemies, America and Israel." Id. at 2388
(internal quotation marks omitted). Most significantly, some of the
tapes depicted Hizballah military operations and encouraged dona-
tions from those who could not participate directly in Hizballah oper-
ations.
We conclude that the district court did not abuse its discretion in
ruling that the excerpts played for the jury were relevant. The excerpts
played for the jury are probative of Hammoud’s intent during the
prayer meetings—i.e., to solicit donations to Hizballah—and his
knowledge of, and agreement with, the terrorist objectives of Hizbal-
lah.
B. Unfair Prejudice
Hammoud also argues that even if the tapes were relevant, they
should have been excluded because their probative value was substan-
tially outweighed by the danger of unfair prejudice. Rule 403 requires
exclusion of evidence "only in those instances where the trial judge
believes that there is a genuine risk that the emotions of the jury will
be excited to irrational behavior, and that this risk is disproportionate
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to the probative value of the offered evidence." United States v. Pow-
ers, 59 F.3d 1460, 1467 (4th Cir. 1995) (internal quotation marks
omitted). The mere fact that the evidence will damage the defendant’s
case is not enough—the evidence must be unfairly prejudicial, and the
"unfair prejudice must substantially outweigh the probative value of
the evidence." United States v. Grimmond, 137 F.3d 823, 833 (4th
Cir. 1998) (internal quotation marks omitted) (emphasis added).
In advocating for the admissibility of the video excerpts, the Gov-
ernment relies on United States v. Salameh, 152 F.3d 88 (2d Cir.
1998) (per curiam). In Salameh, the Second Circuit addressed a Rule
403 challenge to the admission of certain materials—including a
video of the bombing of an American embassy and instructions for
making bombs—in the trial of those accused of the 1993 World Trade
Center bombing. See id. at 110. The court concluded that the district
court had not abused its discretion in ruling that the materials were
not unfairly prejudicial, reasoning that even though the items "bristled
with strong anti-American sentiment and advocated violence against
targets in the United States," the danger of unfair prejudice did not
substantially outweigh the probative value of the evidence. Id. at 111.
In arguing that the video excerpts were unfairly prejudicial, Ham-
moud relies on United States v. Ham, 998 F.2d 1247 (4th Cir. 1993),
and United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir.
1998). In Ham, this court reversed a conviction on the basis that evi-
dence of defendants’ homosexuality and of rampant child molestation
in a religious community headed by the defendants was unduly preju-
dicial. See Ham, 998 F.2d at 1252-54. We concluded that the evi-
dence was highly prejudicial and that its probative impact was limited
because, although relevant to prove motive for the charged murder,
it was neither "direct" nor "essential" proof of motive. Id. at 1253.
In Merino-Balderrama, the Ninth Circuit reversed a conviction for
possession of child pornography on the basis that the district court
abused its discretion in allowing the Government to play for the jury
excerpts of films containing child pornography that had been found
in the defendant’s possession. See Merino-Balderrama, 146 F.3d at
760. The defendant had offered to stipulate that the tapes contained
child pornography. The court held that in view of the proffered stipu-
lation, the Government would only be required to prove scienter, i.e.,
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that the defendant knew the films contained child pornography. And,
the court concluded that in light of the covers of the films—
photographs making clear that the film was child pornography—the
probative value of the contents of the films was outweighed by their
prejudicial impact. See id. at 762-63.
We conclude that the district court did not abuse its discretion in
allowing the Government to play portions of the tapes for the jury. As
noted above, the Government was required to demonstrate that Ham-
moud knew of Hizballah’s unlawful activities, and the contents of the
videos were probative evidence of Hammoud’s knowledge. The tapes
also provided evidence of Hammoud’s motive in raising funds for
Hizballah and tended to contradict Hammoud’s claim that he sympa-
thized only with the humanitarian goals of the organization. See
Salameh, 152 F.3d at 111 (noting that even though motive is not an
element of any offense, "evidence offered to prove motive is com-
monly admitted"). This case is thus unlike Ham, in which the prof-
fered evidence was neither directly relevant to motive nor highly
probative of motive. And, unlike in Merino-Balderrama, there was no
less prejudicial alternative for the Government in proving Ham-
moud’s knowledge of Hizballah’s activities.12
12Hammoud notes that he offered to stipulate that the tapes were found
in his home and that they were produced by Hizballah. Even if such a
stipulation had been accepted, however, it still would not relieve the
Government of the burden of demonstrating that Hammoud knew that
Hizballah engaged in terrorist activity. See United States v. Hill, 249
F.3d 707, 712 (8th Cir. 2001) (noting that the defendant’s offer to stipu-
late to the element of intent did not alleviate the Government’s obligation
to prove intent).
Hammoud also suggests that the district court was required to accept
his stipulation under United States v. Old Chief, 519 U.S. 172, 174
(1997), in which the Supreme Court held that in a prosecution for being
a felon in possession of a firearm, a defendant must be allowed to stipu-
late to his status as a felon. Old Chief does not mandate the acceptance
of all offered stipulations, however. The Court noted that its ruling was
an exception to the general rule that "the prosecution is entitled to prove
its case by evidence of its own choice, or, more exactly, that a criminal
defendant may not stipulate or admit his way out of the full evidentiary
force of the case as the Government chooses to present it." Id. at 186-87.
We have limited Old Chief to its facts. See Grimmond, 137 F.3d at 833
n.14. In any event, as noted above, the videotapes were admissible to
prove facts beyond the scope of Hammoud’s stipulation.
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C. Manner of Presentation
Hammoud also challenges the manner in which the Government
presented the videotapes, arguing that the tapes were repeatedly
rewound and replayed in order to heighten their prejudicial impact.
The record does not bear out this claim. The Government played the
tapes for the jury while a linguist translated the statements being
made. At several points, the linguist asked for the tape to be rewound
because his translation had fallen behind the action on the video. The
following is a representative episode:
___Our slogan was, is and will remain to be Death to Israel.
And the crowd repeats the same thing three times.
Mr. Nasserallah says, And along The Resistance path —
can you rewind it just a little?
It says, Along The Resistance path, our bodies bleed, our
bodies fall to the ground and our heads tumble above our
heads — I’m sorry, our houses tumble above our heads.
It says — I’m sorry, can you rewind just a little bit?
Okay. He talks — I missed that part because of the
rewinding, but he talks about The Resistance continues. . . .
J.A. 2227. We see nothing improper or prejudicial in rewinding the
videos so that the translator could keep up.
Hammoud further asserts that it was improper for the Government
to use a translator at all—he contends that the Government should
have simply played the tapes and allowed the jury to follow along
with a printed translation. We disagree. It would have been exceed-
ingly difficult, if not impossible, for a jury to follow along with a
written, English translation of a videotape filmed entirely in Arabic.
The district court did not abuse its discretion in determining that play-
ing the video with simultaneous oral translation was a more effective
and helpful way of presenting the evidence to the jury.
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VI. Miscellaneous Challenges to Convictions
Hammoud raises several additional challenges to his convictions
that may be addressed more briefly.
A. Constructive Amendment
Count 71 of the indictment alleged that the Charlotte Hizballah cell
was a racketeering enterprise, one of the purposes of which was the
donation of illegally acquired funds to Hizballah. Count 72 of the
indictment charged Hammoud and others with conspiracy to provide
material support to a designated FTO. Count 72 included allegations
regarding Hammoud’s activities in Charlotte as well as Said Harb’s
involvement in procuring "dual-use" equipment in Canada. Hammoud
argues that the Government (through its presentation of evidence and
closing argument) and the district court (through its instructions to the
jury) constructively amended the indictment by effectively combining
counts 71 and 72 into a single charge. See United States v. Floresca,
38 F.3d 706, 710 (4th Cir. 1994) (en banc) ("A constructive amend-
ment to an indictment occurs when either the government . . . , the
court . . . , or both, broadens the possible bases for conviction beyond
those presented by the grand jury.").
Counts 71 and 72 were clearly separate charges, and the district
court properly instructed the jury as to each. During his closing argu-
ment, Hammoud’s counsel argued that while the indictment charged
a single conspiracy in count 72, the evidence supporting that count
actually demonstrated the existence of two conspiracies—one in Can-
ada, involving the procurement of equipment, and one in Charlotte.13
In response to this claim, the Government argued in rebuttal that the
evidence in support of count 72 established the existence of a single
conspiracy.
During deliberations, the jury repeatedly asked questions about
count 72, even after it had reached a verdict on all of the other counts,
including count 71. In particular, the jury asked whether, in order to
convict, it had to conclude that the Canadian activities and the Char-
13Counsel then argued that the Government had failed to prove the
existence of a conspiracy in Charlotte.
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lotte activities were part of the same conspiracy. In response, and
apparently without objection from Hammoud, the district court
repeated its instruction regarding single and multiple conspiracies.
Subsequently, the jury asked a question that neither the court nor
the parties understood: "Do we have to find one conspiracy or a con-
spiracy out of multiple utilizing only some of the manner and means
of conspiracy." J.A. 3648 (internal quotation marks omitted). The
response of the court, as recorded in the transcript, was equally con-
fusing: "You must find, in order to convict on Count 72, that there
was a single conspiracy, not multiple conspiracies. Multiple conspira-
cies with a common goal. Not what was charged." Id. The first sen-
tence is a correct instruction; the second and third sentences, however,
arguably contradicted it. A short time later, the jury asked two addi-
tional questions: "Is Count 72 that there’s one single and only one
conspiracy to be proved?" and "Does it necessarily have to include all
of the matter and means of the conspiracy as alleged in the count?"
Id. at 3649 (internal quotation marks omitted). The district court cor-
rectly answered the first question "yes" and the second question "no."
Hammoud construes all of this discussion regarding count 72 as a
discussion regarding counts 71 and 72, and he alleges that the district
court improperly combined the two counts. As should be clear from
the above discussion, this is not at all what happened. All of the ques-
tions from the jury concerned whether count 72 involved a single con-
spiracy or multiple conspiracies. Therefore, there was no constructive
indictment.
B. Cross-Examination of Hammoud
Hammoud testified in his own defense, asserting that he supported
the humanitarian work of Hizballah but not its terrorist activities. On
cross-examination, the Government questioned Hammoud regarding
his awareness of violent acts by Hizballah. Hammoud now asserts
that such questions constituted "fearmongering" and violated his right
to a fair trial. We conclude that there was no error here because the
prosecutor’s questions were intended to undermine Hammoud’s claim
that he supported only the humanitarian aims of Hizballah and that he
disagreed with the violent tactics employed by Hizballah.
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C. Testimony Regarding Dual-Use Equipment
In his final challenge to his convictions, Hammoud asserts that the
district court should not have allowed expert testimony regarding the
possible aviation applications of equipment purchased in Canada by
Said Harb and others, arguing that the sole purpose of such testimony
was to "instill[ ] fear and prejudice in a post-September 11 jury." Br.
for Appellant Mohamad Y. Hammoud at 112. We agree with the
Government that this testimony was relevant to prove the "material
support" conspiracy charged in Count 72 of the indictment and was
not unfairly prejudicial.
The admission of this testimony was not plain error.
VII. Blakely v. Washington
We now turn to the issue that prompted us to hear this case en
banc: the effect of Blakely on the federal sentencing guidelines.14 The
question we must address is whether the rationale of Blakely (and
Apprendi before it) requires indictment and a jury finding, beyond a
reasonable doubt, of facts that result in an increase in the offense level
and corresponding guideline range. Little more than a month after
Blakely was handed down, the federal courts are already divided over
this question. The Seventh and Ninth Circuits have ruled that Blakely
does impact the guidelines. See United States v. Ameline, 376 F.3d
967, 974 (9th Cir. 2004); United States v. Booker, 375 F.3d 508, 511
(7th Cir. 2004) ("Blakely dooms the guidelines insofar as they require
that sentences be based on facts found by a judge."), cert. granted, 73
U.S.L.W. 3073 (U.S. Aug. 2, 2004) (No. 04-104). In contrast, the
Fifth and Sixth Circuits have held that Blakely does not affect the
14In the district court and on appeal, Hammoud argued that under
Apprendi v. New Jersey, 530 U.S. 466 (2000), the facts underlying the
terrorism enhancement and the amount of tax loss should have been
alleged in the indictment and found by the jury beyond a reasonable
doubt. These claims are now subsumed by Hammoud’s claim, articulated
in his supplemental brief, that Blakely requires all facts that result in an
increased offense level to be charged in the indictment and found by the
jury beyond a reasonable doubt. We therefore do not address them sepa-
rately.
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guidelines. See United States v. Koch, 2004 WL 1870438, at *1 (6th
Cir. Aug. 13, 2004) (en banc) (order affirming judgment of the district
court) ("We hold . . . that the decision of the U.S. Supreme Court in
Blakely . . . does not invalidate the appellant’s sentence under the fed-
eral Sentencing Guidelines."); United States v. Pineiro, 377 F.3d 464,
465-66 (5th Cir. 2004) ("Having considered the Blakely decision,
prior Supreme Court cases, and our own circuit precedent, we hold
that Blakely does not extend to the federal Guidelines . . . ."). The
Second Circuit certified questions regarding the application of Blakely
to the guidelines to the Supreme Court, see United States v.
Penaranda, 375 F.3d 238, 247 (2d Cir. 2004), but in the meantime
has declined to apply Blakely to the guidelines, see United States v.
Mincey, 2004 WL 1794717, at *3 (2d Cir. Aug. 12, 2004) (per
curiam). Other circuits have acknowledged the potential impact of
Blakely on the guidelines but have not directly addressed the question.
See, e.g., United States v. Duncan, 2004 WL 1838020, at *3-*5 (11th
Cir. Aug. 18, 2004) (holding that any Blakely error was not "plain"
under plain error standard of review); United States v. Cianci, 378
F.3d 71, 107 (1st Cir. 2004) (deferring decision on sentencing issues
pending supplemental briefing regarding Blakely). And, on the day
we heard argument in this case, the Supreme Court granted certiorari
in two cases involving Blakely and the federal sentencing guidelines.
See United States v. Booker, 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004)
(No. 04-104); United States v. Fanfan, 73 U.S.L.W. 3073 (U.S. Aug.
2, 2004) (No. 04-105). These cases are scheduled for argument on
October 4, 2004.
On close examination of Blakely, we conclude that the Supreme
Court simply applied—and did not modify—the rule articulated in
Apprendi. We have previously held that the rule of Apprendi does not
affect the application of the guidelines. See United States v. Kinter,
235 F.3d 192, 198-202 (4th Cir. 2000). Nothing in Blakely requires
us to abandon our prior holding. We therefore decline to apply the
holding of Blakely to the guidelines.
A. Blakely
1. Determinate Sentencing in Washington State
All felonies in Washington State are legislatively classified as
either A, B, or C felonies. See Wash. Rev. Code § 9A.20.010(b)
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(Westlaw 2004). For crimes committed after July 1, 1984, Washing-
ton statutory law provides a maximum term of imprisonment of life
for Class A felonies, a maximum sentence of ten years for Class B
felonies, and a maximum sentence of five years for Class C felonies.
See id. § 9A.20.021(1) (Westlaw 2004).
In addition to the maximum penalties specified in the felony classi-
fication statutes, the Washington State Sentencing Reform Act of
1981 created a second level of statutory sentencing. Under this sys-
tem, each criminal offense is characterized according to its serious-
ness level, ranging from Level I for relatively minor offenses such as
"malicious mischief 2" up to Level XVI for "aggravated murder 1."
Wash. Rev. Code § 9.94A.515 (Westlaw 2004). Also, every convicted
criminal defendant is assigned an offender score based largely on the
defendant’s prior criminal history. See id. § 9.94A.525 (Westlaw
2004). The statute also sets forth a sentencing grid that prescribes a
minimum and maximum sentence based on the offense seriousness
level and the offender score. See id. § 9.94A.510 (Westlaw 2004).15
The trial court must sentence the defendant within this statutory
sentencing range unless "there are substantial and compelling reasons
justifying an exceptional sentence" above or below the prescribed
range. Id. § 9.94A.535 ¶1 (Westlaw 2004). Factual findings underly-
ing an exceptional sentence are to be made by the court, employing
a preponderance-of-the-evidence standard. See Wash. Rev. Code
§ 9.94A.530(2) (Westlaw 2004).
The calculations underlying the selection of the sentencing range
are reviewable on appeal, but the choice of a particular sentence
within the statutory range is not. See State v. McCorkle, 973 P.2d 461,
462 (Wash. 1999) (en banc). However, on appeal from an exceptional
sentence the reviewing court will assess the validity of, and the fac-
tual support for, the departure and will consider whether the sentence
imposed is excessive. See State v. Halgren, 971 P.2d 512, 514-15
(Wash. 1999) (en banc).
15Drug offenses are sentenced pursuant to a separate sentencing grid
based on a three-level system of offense seriousness. See id.
§§ 9.94A.517-.518 (Westlaw 2004).
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The Washington guidelines are legislatively determined. Washing-
ton State does have a sentencing guidelines commission, but its role
is wholly advisory—the legislature has never delegated its authority
to set sentencing policy. See Wash. Rev. Code § 9.94A.850(2)(a)-(c)
(Westlaw 2004); David Boerner & Roxanne Lieb, Sentencing Reform
in the Other Washington, 28 Crime & Just. 71, 83-85 (2001) (noting
that "the Washington commission’s role was advisory from the begin-
ning" and that "[t]he legislature retained its authority over sentencing,
with the guidelines commission serving in an advisory capacity");
State of Wash. Sentencing Guidelines Comm’n, Powers and Duties
of the Commission, at http://www.sgc.wa.gov/powersandduties.htm
(last visited Aug. 25, 2004) (stating that the statutory mandate of the
commission is limited to "[e]valuating and monitoring adult and juve-
nile sentencing policies and practices and recommending modifica-
tions to the Governor and the Legislature" and "[s]erving as a
clearinghouse and information center on adult and juvenile sentenc-
ing").
2. The Decision in Blakely
In October 1998, Ralph Howard Blakely, Jr. accosted his wife at
their home, binding her with duct tape and forcing her at knife point
to climb into a "coffin-like plywood box" in the bed of his pickup
truck. State v. Blakely, 47 P.3d 149, 152 (Wash. Ct. App. 2002). As
he did so, he importuned her to dismiss the divorce suit and trust pro-
ceedings she had instituted against him. After the couple’s son, Ral-
phy, arrived at the home, Blakely drove away with his wife in the
back of the truck. Blakely forced 13-year-old Ralphy to follow in
Mrs. Blakely’s car, threatening to harm Ralphy’s mother if he did not
comply. Ralphy escaped when the family stopped at a gas station;
Blakely continued with his wife to a friend’s house in Montana. The
friend subsequently called the police, and Blakely was arrested with-
out incident.
Blakely pleaded guilty to one count of second degree domestic vio-
lence kidnaping and one count of second degree domestic violence
assault. Under the felony classification system, second degree kidnap-
ing (committed without a sexual motivation) is a Class B felony sub-
ject to a maximum penalty of ten years. See Wash. Rev. Code
§ 9A.40.030(3)(a) (Westlaw 2004). Under the Sentencing Reform
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Act, second degree kidnaping is a level V offense; this level, com-
bined with Blakely’s offender score, resulted in a statutory sentencing
range of 49-53 months. Thus, according to Washington State law, the
statutory maximum sentence was 53 months. The prosecution recom-
mended that Blakely be sentenced at or near the maximum. Instead,
the trial court imposed an exceptional sentence of 90 months based
on its finding that Blakely had acted with deliberate cruelty and that
he had committed domestic violence in front of his son. See Wash.
Rev. Code § 9.94A.535(2)(a), (2)(h)(ii) (Westlaw 2004).
After the state court of appeals affirmed and the state supreme
court denied discretionary review, the United States Supreme Court
granted certiorari and reversed, holding that the exceptional sentence
violated the constitutional principles articulated in Apprendi. See
Blakely, 124 S. Ct. at 2536-38. The Court began by noting the precise
manner in which the sentencing scheme at issue in Apprendi had
offended the Constitution: "the judge had imposed a sentence greater
than the maximum he could have imposed under state law without the
challenged factual finding." Id. at 2537. The Court found the same
defect in Blakely’s sentence, noting that the trial court imposed an
exceptional sentence because Blakely had acted with deliberate
cruelty—a fact not admitted by Blakely in connection with his plea.
The Court rejected the State’s claim that there was no Apprendi
problem because even the exceptional sentence was within the ten-
year maximum applicable to Class B felonies:
Our precedents make clear . . . that the "statutory maximum"
for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant. In other words,
the relevant "statutory maximum" is not the maximum sen-
tence a judge may impose after finding additional facts, but
the maximum he may impose without any additional find-
ings.
Id. (citations omitted). The Court concluded that this "statutory maxi-
mum" was 53 months, the top of the statutory sentencing range,
because the sentencing judge could not exceed that maximum without
making additional factual findings. See id. at 2538 ("Had the judge
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imposed the 90-month sentence solely on the basis of the plea, he
would have been reversed."). Therefore, the Court ruled, "[t]he ‘maxi-
mum sentence’ is no more 10 years here than it was 20 years in
Apprendi (because that is what the judge could have imposed upon
finding a hate crime) or death in Ring[ v. Arizona, 536 U.S. 584
(2002)] (because that is what the judge could have imposed upon
finding an aggravator)." Id. The Court also rejected as "immaterial"
the State’s assertion that the sentence did not run afoul of Apprendi
because the list of aggravating factors in the state sentencing guide-
lines is illustrative rather than exhaustive: "Whether the judge’s
authority to impose an enhanced sentence depends on finding a speci-
fied fact (as in Apprendi), one of several specified facts (as in Ring),
or any aggravating fact (as here), it remains the case that the jury’s
verdict alone does not authorize the sentence." Id.
B. Application of Blakely to the Guidelines
Shortly after Apprendi was decided, we held that it did not affect
the sentencing guidelines. See United States v. Kinter, 235 F.3d 192,
198-202 (4th Cir. 2000). While we acknowledged that the argument
for applying Apprendi to the guidelines was "not without support," id.
at 200, we ultimately concluded that the claim failed in light of the
quintessentially judicial nature of the tasks performed by the Sentenc-
ing Commission, see id. at 201 ("[T]he Commission’s act of estab-
lishing sentencing ranges in the Guidelines is categorically different
from the legislative act of setting a maximum penalty in a substantive
criminal statute."); id. ("The Sentencing Guidelines do not create
crimes. They merely guide the discretion of district courts in deter-
mining sentences within a legislatively-determined range . . . ."). We
now re-examine this question in light of Blakely.
Blakely did not change—indeed, it reaffirmed—the question we
must ask in determining whether application of the federal sentencing
guidelines is subject to the rule of Apprendi: When a defendant is to
be sentenced pursuant to the guidelines, what is the "prescribed statu-
tory maximum"? After Apprendi but before Blakely, this and the other
circuit courts of appeals had unanimously concluded that the maxi-
mum the defendant could receive "if punished according to the facts
reflected in the jury verdict alone," Apprendi, 530 U.S. at 483, was
the maximum penalty provided in the statute setting forth the offense
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of conviction (or whatever penalty statute was referenced by the stat-
ute setting forth the offense of conviction), not the top of the guide-
line sentencing range mandated by those facts. See United States v.
Reyes-Echevarría, 345 F.3d 1, 6-7 (1st Cir. 2003); United States v.
Garcia, 240 F.3d 180, 182-84 (2d Cir. 2001); United States v. Wil-
liams, 235 F.3d 858, 862-63 (3d Cir. 2000); United States v. Doggett,
230 F.3d 160, 166 (5th Cir. 2000); United States v. Lawrence, 308
F.3d 623, 634-35 (6th Cir. 2002); United States v. Knox, 301 F.3d
616, 620 (7th Cir. 2002); United States v. Walker, 324 F.3d 1032,
1041 (8th Cir.), cert. denied, 124 S. Ct. 247 (2003); United States v.
Ochoa, 311 F.3d 1133, 1135-36 (9th Cir. 2002); United States v.
Jackson, 240 F.3d 1245, 1249 (10th Cir. 2001); United States v. Har-
ris, 244 F.3d 828, 829-30 (11th Cir. 2001); United States v. Fields,
251 F.3d 1041, 1043-44 (D.C. Cir. 2001).
Blakely not only did not change the inquiry we must make, it also
adhered to the rule the Court had announced in Apprendi: "‘Other
than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be sub-
mitted to a jury, and proved beyond a reasonable doubt.’" Blakely,
124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, and explaining
that "[t]his case requires us to apply the rule we expressed in
Apprendi" (emphasis added)). Therefore, in view of the fact that
Blakely changed neither the question nor the rule for answering the
question, we must determine what it is in Blakely that has prompted
some courts to abandon the previously held view that the rule of
Apprendi does not affect the guidelines.
We think the most likely culprit is the broad language found in
parts of Blakely, particularly the following passage:
Our precedents make clear . . . that the "statutory maximum"
for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant. See Ring, supra,
at 602 ("‘the maximum he would receive if punished
according to the facts reflected in the jury verdict alone’"
(quoting Apprendi, supra, at 483)); Harris v. United States,
536 U.S. 545, 563 (2002) (plurality opinion) (same); cf.
Apprendi, supra, at 488 (facts admitted by the defendant).
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In other words, the relevant "statutory maximum" is not the
maximum sentence a judge may impose after finding addi-
tional facts, but the maximum he may impose without any
additional findings. When a judge inflicts punishment that
the jury’s verdict alone does not allow, the jury has not
found all the facts "which the law makes essential to the
punishment," Bishop, supra, § 87, at 55, and the judge
exceeds his proper authority.
Blakely, 124 S. Ct. at 2537 (parallel citations omitted).
In light of this language, it is hardly surprising that several courts
have held that Blakely signals the demise of the guidelines. See, e.g.,
Booker, 375 F.3d at 511. Viewing the above-quoted passage alone,
and noting the quotation marks surrounding the term "statutory maxi-
mum," it is not that far-fetched to conclude that the Court intended
to encompass within its holding any situation in which a binding
maximum—whether statutory or not—is increased by virtue of a judi-
cial finding. Indeed, Justices O’Connor and Breyer expressed concern
that the decision in Blakely necessarily implied the invalidity of
important aspects of the federal guidelines system. See Blakely, 124
S. Ct. at 2550 (O’Connor, J., dissenting) ("If the Washington scheme
does not comport with the Constitution, it is hard to imagine a guide-
lines scheme that would."); id. at 2561 (Breyer, J., dissenting) ("Until
now, I would have thought the Court might have limited Apprendi so
that its underlying principle would not undo sentencing reform
efforts. Today’s case dispels that illusion. . . . Perhaps the Court will
distinguish the Federal Sentencing Guidelines, but I am uncertain
how.").
We think that those courts which have held that the Blakely Court
redefined the term "statutory maximum," see Booker, 375 F.3d at 514,
have failed to account for the factual and legal context in which
Blakely was decided. Under Apprendi, a jury verdict or plea of guilty
authorizes the sentencing judge to impose a sentence up to the legisla-
tively prescribed maximum specified in the statute that sets forth the
offense of conviction. See Apprendi, 530 U.S. at 482 (noting that "the
judge’s task in sentencing is to determine, within fixed statutory or
constitutional limits, the type and extent of punishment after the issue
of guilt has been resolved" (alteration & internal quotation marks
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omitted)). Blakely required the Court to apply this principle to a sen-
tencing scheme involving two legislatively prescribed statutory maxi-
mum penalties. See Blakely, 124 S. Ct. at 2537 (describing the top of
the sentencing range under the Washington State Sentencing Reform
Act as a "statutory maximum"); Booker, 375 F.3d at 518 (Easter-
brook, Circuit Judge, dissenting) ("Blakely arose from a need to des-
ignate one of two statutes as the ‘statutory maximum’.").
This understanding of Blakely is consistent with Apprendi, in
which the Court repeatedly used language indicating that jury protec-
tions come into play when legislatively prescribed penalties are at
issue.16 See Apprendi, 530 U.S. at 481 (noting history of judicial dis-
cretion to sentence "within the range prescribed by statute" (emphasis
omitted)); id. (observing that "our periodic recognition of judges’
broad discretion in sentencing . . . has been regularly accompanied by
the qualification that that discretion was bound by the range of sen-
tencing options prescribed by the legislature" (emphasis added)); id.
at 484 (noting heightened stigma that attaches when a defendant
"faces punishment beyond that provided by statute" (emphasis
added)); id. at 487 n.13 (limiting McMillan "to cases that do not
involve the imposition of a sentence more severe than the statutory
maximum for the offense established by the jury’s verdict" (emphasis
added)); id. at 490 ("Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reason-
able doubt." (emphasis added)). There is no reason to believe that this
explicit linking of Sixth Amendment rights to legislatively prescribed
penalties was ill-considered or accidental. Cf. Booker, 375 F.3d at 518
(Easterbrook, Circuit Judge, dissenting) ("Why did the Justices
deploy that phrase [‘statutory maximum’] in Apprendi and repeat it
in Blakely (and quite a few other decisions)? Just to get a chuckle at
the expense of other judges who took them seriously and thought that
‘statutory maximum’ might have something to do with statutes? Why
write ‘statutory maximum’ if you mean ‘all circumstances that go into
ascertaining the proper sentence’?").
16A proper reading of Blakely also allows us to take the Court at its
word when it stated that it was "apply[ing]" the rule of Apprendi, not
modifying it.
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Our understanding of Blakely also comports with the prior guide-
lines decisions of the Supreme Court. The Court has upheld guide-
lines sentencing against every constitutional challenge thus far
brought before it; a holding that Blakely renders important aspects of
guidelines sentencing unconstitutional would undermine, if not out-
right nullify, several of these decisions.17
We begin with Mistretta v. United States, 488 U.S. 361 (1989), in
which the Supreme Court upheld the constitutionality of the guide-
lines against nondelegation and separation of powers challenges.
Characterizing the guidelines as "Congress’ considered scheme for
resolving the seemingly intractable dilemma of excessive disparity in
criminal sentencing," id. at 384, the Court concluded that Congress’
establishment of the Sentencing Commission did not violate separa-
17United States v. Dunnigan, 507 U.S. 87, 92-96 (1993), in which the
Court held that the guidelines permit an obstruction of justice enhance-
ment, see U.S.S.G. § 3C1.1, for perjury at trial, is not one of these cases.
Dunnigan concerned primarily a question of guidelines construction, and
so it is not irreconcilable with any reading of Blakely. However, it is
worth noting that Dunnigan conflicts with Blakely in one respect. Justice
O’Connor expressed concern in her Blakely dissent that extension of
Apprendi to determinate sentencing systems would render such systems
unworkable, in part because some facts—such as perjury at trial—cannot
be discovered in time to be included in the indictment. See Blakely, 124
S. Ct. at 2546 (O’Connor, J., dissenting). The majority disparaged this
concern, stating, "Why perjury during trial should be grounds for a judi-
cial sentence enhancement on the underlying offense, rather than an
entirely separate offense to be found by a jury beyond a reasonable doubt
(as it has been for centuries), is unclear." Id. at 2539 n.11 (citation omit-
ted). But, the Court had already answered that question in Dunnigan:
[T]he enhancement is more than a mere surrogate for a perjury
prosecution. It furthers legitimate sentencing goals relating to the
principal crime, including the goals of retribution and incapacita-
tion. It is rational for a sentencing authority to conclude that a
defendant who commits a crime and then perjures herself in an
unlawful attempt to avoid responsibility is more threatening to
society and less deserving of leniency than a defendant who does
not so defy the trial process.
Dunnigan, 507 U.S. at 97 (citations omitted).
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tion of powers principles, see id. at 380-411. Of particular relevance
here, the Court noted that
Although the Guidelines are intended to have substantive
effects on public behavior . . . , they do not bind or regulate
the primary conduct of the public or vest in the Judicial
Branch the legislative responsibility for establishing mini-
mum and maximum penalties for every crime. They do no
more than fetter the discretion of sentencing judges to do
what they have done for generations—impose sentences
within the broad limits established by Congress.
Id. at 396 (emphasis added). Mistretta thus makes clear that the
guidelines do collectively what federal district judges previously did
individually—select a sentence within the range of penalties specified
by Congress. See Kinter, 235 F.3d at 201 ("[T]he Commission’s act
of establishing sentencing ranges in the Guidelines is categorically
different from the legislative act of setting a maximum penalty in a
substantive criminal statute.").
In short, the Mistretta Court rejected a constitutional challenge to
the guidelines on the basis that the Sentencing Commission performs
not a legislative function, but a judicial one. Application of Blakely
to the guidelines, however, necessarily would require a conclusion
that the Sentencing Commission performs not a judicial function, but
a legislative one. This is so because Blakely applies to the guidelines
only if the Blakely Court redefined the term "statutory maximum" to
include any fact that increases a defendant’s potential sentence—
regardless of its status as a statute or regulation and regardless of its
provenance. Under such a definition of "statutory maximum," the
Commission performs a legislative function in contravention of Mistret-
ta.18
18In this vein, we note that Congress certainly did not view the func-
tion of the Sentencing Commission as a legislative one. The legislative
history of the Sentencing Reform Act is clear that the function of the
guidelines is to channel judicial discretion within the range of statutory
penalties established by Congress. See, e.g., S. Rep. No. 98-225, at 51
(1983) ("The definition of maximum prison terms [under the Sentencing
Reform Act] does not alter existing statutory maximums: the existing
Federal statutes still determine the maximum terms of imprisonment."),
reprinted in 1984 U.S.C.C.A.N. 3182, 3234.
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A similar problem appears when we consider other Supreme Court
decisions addressing the guidelines. One such case is Edwards v.
United States, 523 U.S. 511 (1998). The Edwards defendants were
charged with a drug-trafficking conspiracy involving cocaine and
cocaine base ("crack"). See id. at 512-13. The district court instructed
the jury that it must find that the defendants’ conduct involved crack
or cocaine, and the jury returned a general verdict of guilty. See id.
at 513. The court then determined that the defendants’ relevant con-
duct involved both forms of cocaine and premised its guidelines com-
putations on this finding. See id. A unanimous Supreme Court upheld
these computations, noting that "[t]he Sentencing Guidelines instruct
the judge in a case like this one to determine both the amount and the
kind of controlled substances for which a defendant should be held
accountable." Id. at 513-14 (internal quotation marks omitted).
The Court rejected the defendants’ claim that the district court was
required by the Constitution or the relevant statute to presume that the
jury found that the conspiracy involved only cocaine, reasoning that
such a presumption would have little effect because the district court
would still be required to impose a sentence based on all relevant con-
duct, including conduct found by the judge but not the jury. See id.
at 514. The Court added, "[P]etitioners’ statutory and constitutional
claims would make a difference if it were possible to argue, say, that
the sentences imposed exceeded the maximum that the statutes permit
for a cocaine-only conspiracy." Id. at 515. This was not the case,
however, because "the sentences imposed . . . were within the statu-
tory limits applicable to a cocaine-only conspiracy." Id.
In short, the Court concluded in Edwards that the district court was
required by the guidelines to go beyond the "facts found by the jury"
and determine for itself the type and quantity of drugs involved in the
offense, and it rejected any possible constitutional challenge to this
scheme precisely because the sentence imposed—based, as it was, on
judicial findings of fact—was not more than the legislatively pre-
scribed statutory maximum authorized by the finding of guilt by the
jury. Edwards is entirely consistent with the rule adopted in Apprendi,
which requires a jury finding for facts that establish the maximum
potential statutory penalty. See Apprendi, 530 U.S. at 487 n.13
(explaining that Apprendi rule applies to "the imposition of a sentence
more severe than the statutory maximum for the offense established
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by the jury’s verdict"). Edwards is also consistent with our under-
standing of Blakely, i.e., that in Blakely the Court simply applied the
rule of Apprendi to a new set of facts. If one understands Blakely as
having broadened the definition of "statutory maximum," however,
Edwards is no more. Under a supposed Blakely "redefinition" of stat-
utory maximum, the Court could not have brushed aside the constitu-
tional question presented in Edwards simply by stating that the
findings made by the district court did not cause the sentence to
exceed "the maximum that the statutes permit for a cocaine-only con-
spiracy." Edwards, 523 U.S. at 515. To the contrary, under the
asserted Blakely redefinition of "statutory maximum," the Edwards
Court would have faced a substantial constitutional question because
the findings made by the district court regarding drug type and quan-
tity would have increased the statutory maximum, thereby creating a
right to jury findings on those questions.
We must also be mindful of the effect of an incorrect reading of
Blakely on United States v. Watts, 519 U.S. 148 (1997) (per curiam).
In Watts, the Supreme Court thought it so obvious that judges could
consider acquitted conduct in sentencing a defendant under the guide-
lines, see id. at 157, that the case was decided without oral argument
despite Watts’ claim that such a rule posed constitutional problems
under the Double Jeopardy Clause, the Due Process Clause, and the
Sixth Amendment, see Respondent Watts’ Brief in Opposition,
United States v. Watts, 519 U.S. 148 (1997) (No. 95-1906), 1996 WL
33413758, at *9-*13.
The sentence challenged in Watts was based in part on acquitted
conduct, i.e., factual allegations that the jury determined had not been
proven beyond a reasonable doubt. The Court nevertheless upheld this
sentence, noting the lower standard of proof applicable to sentencing
proceedings and reiterating its previous holding that "application of
the preponderance standard at sentencing generally satisfies due pro-
cess." Watts, 519 U.S. at 156 (citing McMillan v. Pennsylvania, 477
U.S. 79 (1986)). If Blakely redefined the term "statutory maximum,"
however, consideration of acquitted conduct in establishing the guide-
line range would violate the Due Process Clause precisely because of
the lower standard of proof.
In summary, we conclude that the fundamental question under
Apprendi and Blakely is not simply whether judicial fact finding
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increases a defendant’s sentence relative to the sentence that would
otherwise be imposed. Such a reading of these cases fails to take into
account the context in which they were decided—a context which
included the prior statements of the Supreme Court regarding the fed-
eral sentencing guidelines and Congress’ intent in enacting the Sen-
tencing Reform Act—and thus misapprehends the rule they impose.
In fact, the pertinent question is whether a judicial factual finding has
increased the defendant’s sentence beyond what the legislature has
authorized as the consequence of a conviction or guilty plea. There
is thus a very real difference between federal statutes (which define
crimes and set forth statutory penalty ranges, a legislative function)
and the federal sentencing guidelines (which channel judicial discre-
tion in selecting a penalty within the range authorized by Congress,
a judicial function). We therefore conclude that Blakely, like
Apprendi before it, does not affect the operation of the federal sen-
tencing guidelines.
C. Instructions to the District Courts
We previously instructed district courts within the Fourth Circuit
to continue sentencing defendants in accordance with the guidelines,
as was the practice before Blakely. See Hammoud, 2004 WL
1730309, at *1. We further recommended that those courts announce,
at the time of sentencing, a sentence pursuant to 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2004), treating the guidelines as advi-
sory only.
We believe that announcing—not imposing—a non-guidelines sen-
tence at the time of sentencing will serve judicial economy in the
event that the Supreme Court concludes that Blakely significantly
impacts guidelines sentencing.19 The announcement of a non-
guidelines sentence may require the district court to consider issues
19At least one district court within our jurisdiction has indicated confu-
sion about our recommendation. See United States v. Johnson, No. 6:04-
00042, slip op. at 2-3 (S.D. W. Va. Aug. 13, 2004). We emphasize that
our recommendation is not intended to import uncertainty into the sen-
tencing process through the imposition of multiple sentences. Under our
prior order, district courts must impose a guidelines sentence which,
absent a contrary direction from the Supreme Court, the defendant will
serve. However, we cannot ignore the possibility that the Supreme Court
will apply Blakely to the guidelines, and for the reasons stated in the text
of this opinion, we believe it will serve the interests of judicial economy
for a non-guidelines sentence to be determined at the time of the sentenc-
ing hearing.
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not generally pertinent in guidelines sentencing, thereby requiring the
investment of additional time at the sentencing hearing. If the
Supreme Court does not apply Blakely to the guidelines, this will be
wasted effort. If the Court does apply Blakely to the guidelines, how-
ever, the district court and the parties will have made at least substan-
tial progress toward the determination of a non-guidelines sentence,
at a time when the facts and circumstances were clearly in mind.
While a new hearing may have to be convened in order to impose the
previously determined and announced non-guidelines sentence, we
anticipate that the district court and the parties will need to spend far
less time preparing because the issues will already have been
resolved. We therefore continue to recommend that district courts
within the Fourth Circuit announce, at the time of imposing a guide-
lines sentence, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating
the guidelines as advisory only.
VIII. Sentencing Issues
Having determined that Blakely does not affect Hammoud’s sen-
tence, we now consider the remainder of his challenges to his sen-
tence. Hammoud challenges several rulings made by the district court
during sentencing. The most significant of these claims concerns the
application of the terrorism enhancement, see U.S.S.G. § 3A1.4.
Hammoud’s remaining sentencing claims may be disposed of more
briefly.
A. Terrorism Enhancement
Section 3A1.4 applies "[i]f the offense is a felony that involved, or
was intended to promote, a federal crime of terrorism." The term "fed-
eral crime of terrorism" is defined as commission of an enumerated
felony—including providing material support to a designated FTO in
violation of 18 U.S.C.A. § 2339B—that "is calculated to influence or
affect the conduct of government by intimidation or coercion, or to
retaliate against government conduct." 18 U.S.C.A. § 2332b(g)(5)
(West 2000 & Supp. 2004); see U.S.S.G. § 3A1.4, comment. (n.1).
1. Standard of Proof
Hammoud argues that the preponderance standard that generally
governs in sentencing proceedings should not apply here because
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§ 3A1.4 is "a tail which wags the dog of the substantive offense,"
McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986), and therefore
must be proved at least by clear and convincing evidence. Because
Hammoud did not raise this claim in the district court (he instead
asserted that the facts underlying the enhancement had to be found by
a jury beyond a reasonable doubt under Apprendi), we review for
plain error. As noted previously, the plain error standard requires
Hammoud to demonstrate that there was error that was plain and
affected his substantial rights; we must then determine that the exer-
cise of our discretion to correct the error is necessary to protect the
integrity of judicial proceedings. For the reasons set forth below, we
conclude that any error was not plain.
In McMillan, the Supreme Court noted that due process is gener-
ally satisfied when sentencing factors are proved by a preponderance
of the evidence; the Court rejected a claim that a factor requiring
imposition of a mandatory minimum sentence should be subject to a
higher standard of proof. See id. at 91-92. In reaching this conclusion,
the court noted that the statutory mandatory minimum at issue there—
for visible possession of a firearm—"operates solely to limit the sen-
tencing court’s discretion in selecting a penalty within the range
already available to it without the special finding of visible posses-
sion" and that "[t]he statute gives no impression of having been tai-
lored to permit the visible possession finding to be a tail which wags
the dog of the substantive offense." Id. at 88.
While this court has taken the language of McMillan as an indica-
tion that the Due Process Clause imposes some limitations on the use
of sentencing factors proven only by a preponderance of the evidence,
we have never defined those limits and have never declared a sen-
tence invalid on the basis that a sentencing factor was established by
an inadequate standard of proof. See, e.g., United States v. Montgom-
ery, 262 F.3d 233, 249-50 (4th Cir. 2001) (stating that "[p]roof by a
preponderance of evidence is sufficient as long as the enhancement
is not a tail that wags the dog of the substantive offense"; not deciding
whether the district court was required to apply a heightened stan-
dard, as it had made the relevant finding by clear and convincing evi-
dence "[i]n an abundance of caution" (internal quotation marks
omitted)); United States v. Fenner, 147 F.3d 360, 366-67 (4th Cir.
1998) (stating that "sometimes the prosecution must bear the burden
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of proving beyond a reasonable doubt facts bearing upon sentencing"
but noting that such circumstances had not been defined).
The Sixth Circuit has held—in a case involving the § 3A1.4
enhancement—that it is never necessary to apply a heightened stan-
dard of proof to a sentencing factor. See United States v. Graham, 275
F.3d 490, 517 n.19 (6th Cir. 2001). The court reasoned that
The McMillan Court’s apparent concern was not whether
the sentencing factor’s effect on the ultimate sentence was
significant, but whether it was appropriately characterized as
guiding the court’s discretion in punishing the defendant for
the crime for which he was convicted. As long as a sentenc-
ing factor does not alter the statutory range of penalties
faced by the defendant for the crime of which he was con-
victed, McMillan permits the factor to be found by prepon-
derance of the evidence.
Id. In contrast, the Ninth Circuit has imposed a heightened standard
of proof in a number of cases. See, e.g., United States v. Jordan, 256
F.3d 922, 927-28 (9th Cir. 2001) (noting that court has applied height-
ened standard of proof for seven-level and nine-level enhancements
and articulating "totality of the circumstances" test for determining
whether heightened standard should apply (internal quotation marks
omitted)). And, the Third Circuit has required application of the clear
and convincing standard to factual findings underlying an upward
departure that increased the defendant’s sentence from 30 months to
30 years. See United States v. Kikumura, 918 F.2d 1084, 1100-1102
(3d Cir. 1990).
In the absence of a binding decision from this court or the Supreme
Court, and in view of the conflicting views of the other circuits, we
conclude that any error in the standard of proof applied by the district
court was not plain. See United States v. Neal, 101 F.3d 993, 998 (4th
Cir. 1996).
2. Application of the Enhancement
Hammoud raises two additional arguments regarding the terrorism
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enhancement. First, Hammoud contends that the district court should
have applied U.S.S.G. § 2M5.3—the guideline specifically applicable
to violations of § 2339B—rather than § 3A1.4. Even assuming that
the district court should have applied § 2M5.3,20 there was no error.
Setting § 2M5.3 aside for the moment, it is clear that the terrorism
enhancement may be imposed on a defendant who has been convicted
of providing material support to a designated FTO. Section 3A1.4
applies "[i]f the offense is a felony that involved . . . a federal crime
of terrorism." Id. § 3A1.4(a). As the Sixth Circuit has noted, "[t]he
word ‘involved’ occurs frequently throughout the Guidelines, both in
the substantive provisions and in the commentary, and is typically
employed to mean ‘included.’" Graham, 275 F.3d at 516. We there-
fore think it is reasonable to understand § 3A1.4 as applying to a cir-
cumstance such as this one, in which one of the counts of conviction
is alleged to be a federal crime of terrorism. See id. (concluding that
§ 3A1.4 applies when the defendant has committed a federal crime of
terrorism). Violation of § 2339B is one of the crimes enumerated in
the definition of "federal crime of terrorism." Therefore—still setting
§ 2M5.3 aside momentarily—a defendant who has been convicted of
providing material support to an FTO may be subject to the enhance-
ment if the evidence establishes that he provided such support with
the intent to influence or coerce government conduct.
Having determined that the terrorism enhancement would apply to
Hammoud if § 2M5.3 did not exist, we now turn to the question of
whether the existence of § 2M5.3 changes our analysis. We conclude
that it does not. As best we can discern from his rather conclusory
argument, Hammoud’s concern is that application of both § 2M5.3
20Section 2M5.3 first appeared in the 2002 Guidelines Manual, after
Hammoud committed his violations of § 2339B (which were completed
in 2000). Because application of § 2M5.3 would have resulted in a higher
base offense level, the district court arguably should have applied the
2000 version of the Guidelines Manual. See U.S.S.G. § 1B1.11(b)(1);
Elliott v. United States, 332 F.3d 753, 767 n.12 (4th Cir. 2003).
We note that the PSR indicates that the 2002 manual was applied.
Hammoud does not challenge the application of the 2002 guidelines
manual.
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and § 3A1.4 would constitute double counting, and therefore a district
court could apply one or the other, but not both. We disagree.
Double counting under the guidelines occurs "when a provision of
the Guidelines is applied to increase punishment on the basis of a con-
sideration that has been accounted for by application of another
Guideline provision." United States v. Reevey, 364 F.3d 151, 158 (4th
Cir. 2004). Double counting is permissible unless the guidelines
expressly prohibit it in a given circumstance. See id. Thus, "[a]n
adjustment that clearly applies to the conduct of an offense must be
imposed unless the Guidelines expressly exclude its applicability."
United States v. Williams, 954 F.2d 204, 207 (4th Cir. 1992). Nothing
in either § 2M5.3 or in § 3A1.4 prohibits the application of both pro-
visions. Hammoud’s double counting claim therefore fails.
Hammoud also maintains that the evidence does not support appli-
cation of the terrorism enhancement. We disagree. The evidence pre-
sented at trial established that Hammoud had close connections with
Hizballah officials, including its spiritual leader and a senior military
commander. Other evidence—including Hammoud’s own testimony
—indicated that Hammoud was well aware of Hizballah’s terrorist
activities and goals and that he personally supported this aspect of
Hizballah. In short, the evidence presented at trial was sufficient to
establish that Hammoud provided material support to Hizballah with
the intent to influence or coerce government conduct.
B. Sophisticated Money Laundering
The money laundering guideline provides for a two-level enhance-
ment if the defendant is convicted of violating 18 U.S.C.A. § 1956
and "the offense involved sophisticated money laundering." U.S.S.G.
§ 2S1.1(b)(3). The commentary provides that "‘sophisticated launder-
ing’ means complex or intricate offense conduct pertaining to the exe-
cution or concealment" of the offense, and "typically involves the use
of" fictitious entities, shell corporations, "layering" of transactions, or
offshore accounts. Id. § 2S1.1, comment. (n.5(A)).
Here, the district court found that Hammoud and his coconspirators
employed fictitious entities and shell corporations in the course of
laundering the proceeds from the cigarette smuggling operation. This
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finding is not clearly erroneous, and therefore the enhancement was
properly applied.
C. Obstruction of Justice
Finally, Hammoud challenges application of an enhancement for
obstruction of justice, see U.S.S.G. § 3C1.1, that was based upon his
testimony at trial. An obstruction of justice enhancement based on
perjured trial testimony is proper when "the defendant . . . (1) gave
false testimony; (2) concerning a material matter; (3) with the willful
intent to deceive (rather than as a result of confusion, mistake, or
faulty memory)." United States v. Quinn, 359 F.3d 666, 681 (4th Cir.
2004) (internal quotation marks omitted). Here, count 78 charged
Hammoud with giving $3,500 to Hizballah; as part of its case, the
Government introduced into evidence the receipt for this donation.
Hammoud, however, denied ever having donated any money to Hiz-
ballah. Under these circumstances, application of the enhancement
was not clear error.
IX. Conclusion
For the reasons set forth above, we reject each of Hammoud’s chal-
lenges to his convictions and sentence. We therefore affirm the judg-
ment of the district court in its entirety.
AFFIRMED
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Volume 2 of 2
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WILKINSON, Circuit Judge, concurring:
The United States Sentencing Guidelines are constitutional. To
invalidate the Guidelines as presently applied, the federal judiciary
would have to seize a sizable chunk of legislative territory. While I
acknowledge the view that invalidation of the Guidelines would mark
a great democratic development, I regard their evisceration as an
unwarranted accretion of power by the federal courts.
The great drawback of applying Blakely v. Washington, 124 S. Ct.
2531 (2004), to the Sentencing Guidelines is that in doing so the fed-
eral courts would perform a legislative function. It is and always has
been the prerogative of the legislature to define the elements of a
criminal offense. In denominating those sentencing factors which
must now be treated as elements and found by a jury, the courts arro-
gate to themselves the most basic of legislative tasks. I do not think
the judiciary can legislate the elements of a criminal offense without
bending the Constitution beyond recognizable shape.
An element of a crime must be found by a jury as a precondition
to guilt. It is what a jury must establish in order to convict a defendant
of the charged offense. Sentencing factors are not elements. When a
fact is not necessary for conviction of an offense — an offense passed
into law by Congress — that fact becomes a "factor" because it can-
not by definition be an "element." If the judiciary is now to announce
that sentencing factors must be found as elements beyond a reason-
able doubt, that badly skews the balance that Congress has histori-
cally been able to strike between guilt and punishment.
Of course, it will be said that if Blakely extends to the Guidelines,
the judiciary is not in reality creating elements of new offenses, and
juries in reality are simply finding facts as they have always done.
This, however, ignores the substance of what is taking place. When
a jury is required to find a fact beyond a reasonable doubt, it is fulfill-
ing precisely the same function that the legislature historically has
mandated for it in determining the guilt of a legislatively prescribed
offense. And when the judiciary requires juries to do that which the
legislature has historically had exclusive power to direct them to do,
judges have assumed the lawmaker’s role.
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Pretending otherwise would draw us into a constitutional dilemma.
If what the Supreme Court and Courts of Appeals have always under-
stood to be factors are now understood to be elements, our problems
are larger than we realize. Mistretta held that the Guidelines "do not
bind or regulate the primary conduct of the public or vest in the Judi-
cial Branch the legislative responsibility for establishing minimum
and maximum penalties for every crime. They do no more than fetter
the discretion of sentencing judges to do what they have done for gen-
erations — impose sentences within the broad limits established by
Congress." Mistretta v. United States, 488 U.S. 361, 396 (1989).
If, all along, the Sentencing Commission, in contravention of Mis-
tretta, was actually creating elements, then it was also creating dozens
and hundreds of new offenses. If the judiciary suddenly can say that
juries must find all the facts that attach to these offenses, then judges
have assigned themselves the enterprise of creating and defining
crimes. But creating elements and defining offenses is a purely legis-
lative power; offenses created within the judicial branch are void
because they were not authorized by the law-making procedure our
Constitution allows, that of Article I, Section 7. Installing judges, not
Congress, as arbiters of the necessary elements of any given offense
is hardly what the Sixth Amendment and the nature of our democracy
allow, let alone demand.
Some may argue that separation of powers is not implicated
because the power to create elements is a delegable function. I dis-
agree. The power of legislatures to define crimes and to set ranges of
punishment is no small thing. Criminal law is the basic bulwark of
public safety in our country, and it makes sense that the formulation
of offenses would be left in turn to the people’s representatives. To
apply Blakely to the Guidelines essentially severs the connection
between public protection and popular governance. Put plainly, it
erodes the legislature’s constitutional prerogative to pass criminal
laws to protect the American people.
Since Blakely, the air has been filled with anticipation of the invali-
dation of the Guidelines. There has been no shortage of suggestions
for legislative "fixes" whereby Congress might reclaim its authority
to define crimes and set parameters of punishment. Whether those
new sentencing regimes would be more opaque or draconian than the
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present system is unclear. Whether any new regime would pass con-
stitutional muster is itself uncertain. At a minimum, it will take more
months of confusion and years of litigation to find out. The hard truth
is that none of us can envision the future or forecast the shape of a
post-Guidelines world.
We live, however, in a constitutional present. Congress has pro-
claimed, in the United States Code, what the elements of a crime are.
It has instructed the courts to ensure through the Guidelines that the
exercise of sentencing discretion is evenhanded, fair, non-
discriminatory, and predictable. See Sentencing Reform Act of 1984,
28 U.S.C. § 991(b)(1)(B) (2000). What Congress — the most demo-
cratic of the branches — did not do was authorize the bench to create
additional elements on its own. Nor could it, as Mistretta teaches. Yet
some now maintain that the democratic features of jury deliberation
require judges to start legislating and to push Congress aside.
I think such a result antithetical to our democracy, regardless of
how it is spun. Contrary to the dissent’s representations, I do not in
any sense argue that Apprendi "got it wrong." Post at 71 n.4. To the
contrary, I argue that invalidation of the Guidelines is in no sense
required by Supreme Court precedent. Apprendi v. New Jersey, 530
U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and most
recently Blakely, have not required the courts to legislate from the
bench.* In each case, the Court held that any fact which increases a
*My good colleague in dissent says that "[t]he Supreme Court has spo-
ken." Post at 58. More specifically, she argues that the question of
whether courts are impermissibly creating legislative offense elements is
foreclosed. To the contrary, this issue is at the center of the entire Guide-
lines debate.
First, if the issue were foreclosed, why did the Supreme Court in
Blakely take the trouble to state explicitly that its holding did not extend
to the Guidelines? See Blakely, 124 S. Ct. at 2538 n.9. The Court will not
reach out to decide unpresented questions, but neither will it purposefully
sow confusion by expressing agnosticism about a proposition not in
doubt. Second, if the ability of courts to create offense elements is so
plain, why has the Court not overruled Edwards v. United States, 523
U.S. 511 (1998); United States v. Watts, 519 U.S. 148 (1997)(per
curiam); Witte v. United States, 515 U.S. 389 (1995); or Stinson v.
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statutory maximum must be found by a jury. In each case, the Court
keyed the analysis to the statutory maximum, thus operating explicitly
within the framework that the legislature had imposed. But if any
facts that increase a sentence without reference or regard to the statu-
United States, 508 U.S. 36 (1993)? In each case it allowed judges to find
sentencing enhancements under the preponderance standard. Third, if the
issue is foreclosed, why was the linchpin of the argument in Apprendi,
Ring, and Blakely tied to the question of whether a fact caused a sentence
to exceed the statutory maximum — an inquiry which by its nature
respects the division of legislative and judicial authority? Finally, if this
fundamental argument is so foreclosed, one is left to wonder how nine
members of this court, unanimous panels of the Fifth and Eleventh Cir-
cuits, and the en banc Sixth Circuit, have found the Sentencing Guide-
lines constitutional in light of Blakely. See United States v. Reese, 2004
WL 1946076 (11th Cir. Sept. 2, 2004); United States v. Koch, 2004 WL
1899930 (6th Cir. Aug. 26, 2004)(en banc); United States v. Pineiro, 377
F.3d 464 (5th Cir. 2004). And if "controlling precedent" is so clear that
failure to see it is "surprising," how much more surprising it must be that
the Second Circuit, unanimously and en banc, certified the question to
the Supreme Court, for the first time since 1981, because this was not an
issue where "doctrinal uncertainty may be tolerated." United States v.
Penaranda, 375 F.3d 238, 245 (2d. Cir. 2004) (en banc). If the question
of whether Blakely requires us to treat factors and elements the same was
so clear, why has the Supreme Court expedited cases for argument on the
first day of its Term to answer it?
I do, however, appreciate that my colleague accepts my central critique
of applying Blakely to the Guidelines — namely that to do so is to con-
vert factors into elements. See post at 71 n.4 ("treating ‘sentencing fac-
tors’ that mandate enhancement of a sentence as ‘elements’ is exactly
what" precedent requires). My colleague neglects to mention any reason
why such a course is justifiable.
Whether the Sixth Amendment requires juries to find most sentence
enhancing facts is integrally tied to the question of whether our constitu-
tional structure reserves to legislatures alone the power to criminalize
behavior. Indeed, the Sixth Amendment issue cannot be resolved without
asking whether the creation of non-legislative elements commandeers the
core constitutional function of a coordinate branch. Such judicial
alchemy — converting legislative into judicial power — is not justifi-
able. Creating elements is what legislatures, and only legislatures, can
do.
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tory parameters must be found by a jury, then legislatures are no lon-
ger the creators of criminal law and judges no longer the instruments
of guided sentencing discretion. The Apprendi line of cases sought to
prevent judges from assuming the legislative prerogative; Hammoud
now asks judges to assume that very same prerogative. To accept his
invitation is to trample on the democratic foundations of our constitu-
tional order.
Sixth Amendment rights are precious. Hammoud’s were fully pro-
tected — a jury of his peers convicted him of no fewer than fourteen
statutory offenses. But the particular Sixth Amendment right pressed
after Blakely is novel and evolving; the democratic liberties at risk are
ancient ones. The assignment to juries of all factual findings that may
affect a sentence will doubtless be advertised as a great democratic
development. In my judgment, it is profoundly anti-democratic
because the least accountable branch has claimed for itself a power
historically entrusted to the people’s representatives. Because the
opinion for the court refuses to assume powers that cannot be
assumed, I am pleased to concur.
SHEDD, Circuit Judge, concurring:
I fully concur in Parts I-VI and VIII of the majority opinion. Con-
cerning Part VII, the majority correctly frames the issue before us as
"whether the rationale of Blakely (and Apprendi before it) requires
indictment and a jury finding, beyond a reasonable doubt, of facts that
result in an increase in the offense level and corresponding guideline
range." Ante at 33. Blakely and Apprendi, of course, do not involve
the constitutionality of the guidelines. As the majority points out,
however, the Supreme Court has spoken on the constitutionality of
the guidelines in differing contexts on several occasions, and it has
consistently upheld the guidelines. Although "this line of authority by
itself suggests that a lower court should be skeptical about concluding
that Blakely’s invalidation of a state-sentencing scheme suddenly
dooms" the guidelines, United States v. Koch, ___ F.3d ___, 2004
Westlaw 1899930, at *3 (6th Cir. Aug. 26, 2004) (en banc), we would
certainly be at liberty to apply the rationale of Blakely and Apprendi
to the guidelines unless one of the Court’s guidelines cases directly
controls the issue presented to us.
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I believe Edwards v. United States, 523 U.S. 511 (1998), is that
case. In Edwards, the Supreme Court was presented with, and neces-
sarily rejected, a Sixth Amendment (among other issues) challenge to
a sentencing enhancement based on judge-made factual findings. See
Koch, 2004 Westlaw at **3-4; United States v. Booker, 375 F.3d 508,
516-17 (7th Cir.) (Easterbrook, J., dissenting), cert. granted, 73
U.S.L.W. 3073 (U.S. Aug. 2, 2004). As the Sixth Circuit noted,
Edwards "gave the back of the hand to the kind of challenge raised
here." Koch, at *3. Although Edwards predates Apprendi and Blakely,
the Court gave no indication in either of those cases that Edwards is
no longer valid. Indeed, the Court in Apprendi explicitly reaffirmed
Edwards. See Apprendi, 530 U.S. at 497 n.21 ("The Guidelines are,
of course, not before the Court. We therefore express no view on the
subject beyond what this Court has already held. See, e.g., Edwards
v. United States").*
In my opinion, because Edwards is controlling, the reasoning of
Blakely, at most, creates a conflict with Edwards that may only be
resolved by the Supreme Court. See Koch, at *4 ("The Court . . . has
not given us the authority to ignore Edwards"); Booker, 375 F.3d at
517 (Easterbrook, J. dissenting) ("It is for [the Court], not us, to say
that as a result of Blakely" Edwards is no longer valid). Under these
circumstances, our role as a court of appeals is simply to apply
Edwards, and Edwards compels the conclusion that Hammoud’s
argument must fail. It is unnecessary for us to go further. For this rea-
son, I concur in the result reached by the majority in Part VII.
WIDENER, Circuit Judge, concurring and dissenting:
I concur in the result and in all of the opinion of the court except
*Regardless of whether the United States shares my view of Edwards,
I believe that a close reading of that case compels the conclusion that it
is controlling. I note that the United States Sentencing Commission, as
amicus curiae in the Booker and Fanfan cases now pending before the
Supreme Court, recognizes the import of Edwards. See Brief of United
States Sentencing Commission at 25-26, United States v. Booker (No.
04-104) ("To conclude that factfinding under the guidelines violates the
Sixth Amendment, the Court would have to . . . overrule or substantially
limit Edwards").
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Part VII C, which commences on page 46 of the circulated slip opin-
ion.
I respectfully dissent to our recommending, in Part VII C, that the
district courts "announce, at the time of sentencing, a sentence pursu-
ant to . . . [18 U.S.C. § 3553(a),] treating the Guidelines as advisory
only."
This extraordinary recommendation from an intermediate to a more
inferior federal court will doubtless be treated as a direction by many,
even if not all, of the district courts in this circuit.
As a practical matter, if the advisory-only sentence is lower than
the Guidelines sentence, an appeal will be guaranteed.
More importantly, such an extraordinary variance as we recom-
mend from the usual rules of criminal procedure can only indicate to
others a doubt, which should not exist, as to the outcome of the prin-
cipal question in this case, the effect, if any, of Blakely on Guidelines
sentencing. Blakely should not, and does not, have an effect on our
Guidelines sentencing. And, even if the recommended advisory sen-
tencing is discretionary, about which I have some doubt, in my opin-
ion, it is inadvisable.
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
The Supreme Court has spoken: When a sentencing "system" per-
mits a "judge [to] inflict[ ] punishment that the jury’s verdict alone
does not allow" it violates a defendant’s Sixth Amendment right to
trial by jury. Blakely v. Washington, 124 S.Ct. 2531, 2537, 2540
(2004). In this case, the United States Sentencing Guidelines permit-
ted the district judge to inflict punishment on Mohamad Y. Hammoud
thirty times greater than that allowed by the jury verdict alone.
Blakely makes clear that such a sentence violates the Sixth Amend-
ment; the majority can reach a contrary conclusion only by resolutely
refusing to follow Blakely. Accordingly, although I join the majority
in affirming Hammoud’s convictions, I cannot join in its affirmance
of this unconstitutional sentence.
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I.
The maximum sentence that the district judge could have imposed
in this case, had he not made any additional factual findings, was 57
months.1 The United States Sentencing Guidelines (the "Guidelines"
or "federal guidelines"), however, directed the judge to make addi-
tional findings. The Guidelines further required the judge to increase
Hammoud’s sentence if the judge resolved, by a preponderance of the
evidence, certain facts in favor of the Government. Obedient to the
Guidelines, the judge made findings with respect to numerous facts
that had never been considered by the jury or proved beyond a reason-
able doubt. On the basis of these findings, the district judge sentenced
Hammoud not to 57 months, but to 155 years.
Some of these judicial findings had nothing to do with the jury’s
verdict. For example, the jury never considered the issue of whether
Hammoud had obstructed justice; in fact, none of the charges against
him related in any way to obstruction. Yet the district court increased
Hammoud’s offense level (which with his criminal history category
dictated his sentence range, see U.S. Sentencing Guidelines Manual
(hereinafter "U.S.S.G."), Tbl. Ch. 5, Pt. A) because it found that he
had done so. This required the court to make findings with respect to
three facts never even presented to the jury: that Hammoud "when
testifying under oath (1) gave false testimony; (2) concerning a mate-
rial matter; (3) with the willful intent to deceive (rather than as a
result of confusion, mistake, or faulty memory)." United States v.
Jones, 308 F.3d 425, 428 n.2 (4th Cir. 2002) (citing United States v.
Dunnigan, 507 U.S. 87, 92-98 (1993)).
Other judicial findings, also mandated by the Guidelines, although
at least relating to the facts found by the jury, required the district
1The Government expressly so concedes, explaining that "stripped of
any judge-found enhancing facts Hammoud face[d] a guidelines sentenc-
ing range of 46-57 months" because "using the proper Guidelines Man-
ual (the 1998-99 edition), if all counts of conviction are grouped
together, the money laundering Guideline § 2S1.1 provides the greatest
offense level—23" and "[c]oupled with a Criminal History Category I,
a level 23 yields a 46-57 month range." Supplemental Brief of the United
States at 34 n.19, amended by Letter of July 28, 2004.
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judge to increase Hammoud’s sentence to an extraordinary degree
beyond that permitted by the jury verdict alone. For example, the jury
convicted Hammoud of three counts, each involving illegal cigarette
trafficking of at least 60,000 cigarettes, which correlates to a tax loss
of roughly $6,700. See 18 U.S.C. § 2341, 2342 (2000). The Guide-
lines, however, required the judge to determine by a preponderance
of the evidence "the total tax loss attributable to the offense" looking
to "all conduct violating the tax laws . . . unless . . . clearly unrelated."
U.S.S.G. § 2T1.1, cmt. n.2. When the judge concluded that Hammoud
had trafficked in many more cigarettes than his conviction reflected,
resulting in a tax loss of over $2,500,000, the Guidelines required the
judge to increase Hammoud’s offense level by fourteen levels. See
U.S.S.G. § 2E4.1, § 2T4.1.
Similarly, the jury found only that Hammoud knowingly provided
material support to a foreign terrorist organization, 18 U.S.C.
§ 2339B(a)(1) (2000 & Supp. I); the jury never considered whether
in doing so Hammoud also acted with the specific intent to "influence
the conduct of government." 18 U.S.C.A. § 2332b(g)(5) (West 2000
& Supp. 2004). Yet, the Guidelines required the district judge to
determine whether Hammoud acted with this specific intent; and
when the judge concluded by a preponderance of evidence that Ham-
moud had, the Guidelines required the judge to increase Hammoud’s
offense level by twelve levels and to set his criminal history category
at VI. U.S.S.G. § 3A1.4.
Together, the judge’s tax-loss and terrorism findings burdened
Hammoud with an offense level and criminal history category so high
that the Guidelines instructed the district judge to impose a life sen-
tence. See U.S.S.G., Tbl. Ch. 5, Pt. A. In accord with United States
v. Kinter, 235 F.3d 192, 199-200 (4th Cir. 2000), the district judge
"reduced" Hammoud’s sentence from the Guidelines range of life to
"only" 155 years — the total maximum sentence authorized under the
statutes governing the offenses for which Hammoud was convicted.
Of course, the district judge cannot be faulted. In sentencing Ham-
moud, the judge simply followed the Guidelines and our holding that
Guidelines-mandated sentence increases, contingent on judicial find-
ings, survived the rule established in Apprendi v. New Jersey, 530
U.S. 466 (2000). In Apprendi, the Supreme Court held that the Sixth
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Amendment requires that "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Id. at 490. Soon thereafter, we held in Kinter
that, without violating the Apprendi mandate, a judge may follow the
Guidelines and make factual findings that increase the maximum sen-
tence permitted by the jury verdict alone under the Guidelines, pro-
vided the ultimate sentence does not exceed the maximum allowed in
the statute "criminalizing the offense." Kinter, 235 F.3d at 200. The
district court precisely followed this instruction.
A few months ago, however, the Supreme Court decided Blakely.
There the Court expressly rejected the Kinter view that the "statutory
maximum," which could not be exceeded without violating Apprendi,
was the sentence authorized by the statute "criminalizing the offense."
The Court instead held: "[O]ur precedents make clear . . . that the
‘statutory maximum’ for Apprendi purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2537
(emphasis in original) (citing Ring v. Arizona, 536 U.S. 584, 602
(2003); Harris v. United States, 536 U.S. 545, 563 (2002) (plurality
opinion); and Apprendi, 530 U.S. at 488). Blakely instructs that the
Sixth Amendment does not permit a "judge [to] inflict[ ] punishment
that the jury’s verdict alone does not allow." 124 S.Ct. at 2537.2
Moreover, in Blakely, the Supreme Court held that a jury’s verdict
alone does not allow the imposition of the highest sentence permitted
under the statute criminalizing the offense when separate sentencing
guidelines mandate a lesser maximum sentence. Id. at 2537-38.
Thus, the Supreme Court’s decision in Blakely "make[s] clear," 124
S.Ct. at 2537, that in Kinter we misinterpreted the term "statutory
maximum" as used in Apprendi, and that the findings made by the
district judge pursuant to the Guidelines, which increased Ham-
moud’s sentence beyond that permitted by "the jury verdict alone,"
violated the Sixth Amendment.
2In Blakely, the judge-found facts increased the defendant’s sentence
by 70% — from 53 to 90 months. Id. at 2540. Here, the judge-found
facts increased Hammoud’s sentence by more than 3000% — from 57
to 1860 months.
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II.
The majority holds to the contrary by exempting the federal guide-
lines from the Blakely rule. In doing so, the majority acknowledges
that, given the language of the Blakely holding, it is "not that far-
fetched to conclude that the Court intended to encompass within its
holding any situation in which a binding maximum — whether statu-
tory or not — is increased by virtue of a judicial finding." Ante at 40.
But, according to the majority, that constitutes an "incorrect reading
of Blakely." Id. at 45. The majority maintains that Blakely must be
"understood," see id. at 41, 42, 45, to hold only that the Sixth Amend-
ment prevents judicial factfinding that increases a "defendant’s sen-
tence beyond what the legislature has authorized as the consequence
of a conviction or guilty plea." Ante at 46 (emphasis in original). The
majority’s "understanding" of Blakely actually constitutes a complete
misunderstanding of the case.
A.
First, the majority’s "understanding" conflicts with both the actual
holding and rationale of Blakely. As an intermediate appellate court,
we have no license to develop an "understanding" of Supreme Court
precedent at odds with the Supreme Court’s own language and rea-
soning. Rather, we must follow Blakely as written, not as we would
like it to have been written or as we "understand" it to have been writ-
ten.
As written, Blakely instructs:
Our precedents make clear . . . that the "statutory maximum"
for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant. In other words,
the relevant "statutory maximum" is not the maximum sen-
tence a judge may impose after finding additional facts, but
the maximum he may impose without any additional find-
ings. When a judge inflicts punishment that the jury’s ver-
dict alone does not allow, the jury has not found all the facts
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which the law makes essential to the punishment, and the
judge exceeds his proper authority.3
124 S.Ct. at 2537 (internal quotation marks and citations omitted).
This language means exactly what it says: All defendants must be
sentenced "solely on the basis of the facts reflected in the jury ver-
dict." Id. The Supreme Court’s express directive leaves no room for
the majority’s "understanding" of Blakely.
Nor does the Court’s rationale permit the approach adopted by the
majority. The Blakely Court rejected the very argument the Govern-
ment poses here — that although the sentence imposed on the defen-
dant exceeded the Guidelines’ "standard range" maximum (i.e., the
maximum absent additional judicial findings), "there [wa]s no
Apprendi violation" because the sentence did not exceed the maxi-
mum allowed in the statute criminalizing the offense. Id. at 2535-38.
The Court held that "the ‘statutory maximum’ for Apprendi purposes"
is the "standard range" maximum (i.e., 53 months) because that sen-
tence — not the maximum sentence authorized in the statute "crimi-
nalizing the offense," Kinter, 235 F.3d at 200 — is the highest
sentence that a judge could impose "solely on the basis of the facts
admitted in the guilty plea." Blakely, 124 S. Ct. at 2537. If the sen-
tencing judge had imposed a sentence greater than 53 months without
additional judicial fact-finding, "he would have been reversed." Id. at
2538. Hence, Blakely had an enforceable "legal right to" application
of the maximum standard range sentence — it was his maximum sen-
tence for "Apprendi purposes." Id. at 2537, 2540 (emphasis in origi-
nal).
3The majority characterizes this language — the Blakely holding — as
the "culprit" that had led other courts to conclude that the Blakely rule
applies to the federal guidelines. Ante at 39. The majority’s word choice
is odd — and revealing. A "culprit" is "one accused of . . . a crime" or
"fault" or "guilty of a crime" or "fault." Webster’s Third New Interna-
tional Dictionary 552 (1993). By choosing to characterize this language
as a "culprit," the majority clearly signals its distaste for the Blakely
holding. The majority apparently has forgotten that dislike of, or dis-
agreement with, a Supreme Court holding does not provide a lower court
with a basis for refusing to follow the holding.
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This rationale compels the conclusion that Hammoud’s standard
range maximum sentence under the federal sentencing guidelines
(rather than the sentence set forth in the statutes criminalizing his
offenses) constitutes his maximum sentence for Apprendi purposes.
Hammoud’s standard range maximum Guidelines sentence was 57
months; as the Government concedes, that is the highest sentence the
district court could have imposed on Hammoud solely on the basis of
the facts reflected in the jury verdict. Hammoud, like Blakely, had an
enforceable legal right to that standard range maximum. For, as in
Blakely, if the judge had imposed a sentence greater than this standard
range maximum without additional judicial fact-findings, the judge
"would have been reversed." 124 S. Ct. at 2538; see also, e.g., United
States v. Sayles, 296 F.3d 219, 227 (4th Cir. 2002); United States v.
Pineiro, No. 03-30437, 2004 WL 1543170, at *6 (5th Cir. July 12,
2004) (conceding that "[l]ike the judge who disregards the Washing-
ton sentencing rules, a federal judge who disregards the Guidelines
does so on pain of reversal"); Kinter, 235 F.3d at 200 (acknowledging
that if the district court had "disregarded the maximum" Guideline
standard range, "we would have been required to vacate" the sen-
tence).
Thus, both the holding and rationale of Blakely mandate that any
sentence that exceeds "the maximum sentence [the] judge [could]
impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant" violates the Sixth Amendment. Blakely,
124 S.Ct. at 2537. Hammoud’s 155-year sentence clearly exceeds the
57-month maximum sentence the district judge could have imposed
solely on the basis of the jury verdict; ergo, it is unconstitutional. The
majority’s contrary "understanding" of Blakely simply misreads the
case.
B.
Moreover, this "understanding" rests on the most tenuous of foun-
dations — a single fact given no significance by the Supreme Court
itself — i.e., that the Blakely guidelines were entirely set forth in a
statute and the federal guidelines are not. The majority elevates this
lone fact, never relied on and barely mentioned by the Blakely Court,
into the dispositive linchpin of the Court’s analysis, maintaining that
because of it, the Blakely rule does not apply to the federal guidelines.
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In doing so, the majority wishfully grabs at a straw, rather than engag-
ing in the "close examination of Blakely," which it acknowledges is
the proper focus. Ante at 34.
"Close examination" of Blakely quickly reveals that the Supreme
Court never relied on the majority’s assertedly dispositive fact. The
Blakely Court notes the statutory origin of the Washington state
guidelines only once — at the outset of its opinion when recounting
the background of the case. Blakely, 124 S. Ct. at 2535. The remain-
der of the opinion, containing the Court’s extended reasoning, never
again refers to this fact, let alone suggests that it is determinative. See
id. at 2536-43.
On the contrary, the Blakely Court vigorously, almost self-
consciously, rejects the very idea to which the majority clings: that
importance attaches to whether or not a maximum sentence is set
forth in a statute. The Court initially places the phrase "statutory max-
imum" in quotation marks — indicating that the phrase constitutes a
term of art, subject to special definition. Id. at 2537. The Court then
proceeds to provide that definition, a definition that does not contain
any reference to the origin (statutory or not) of the maximum sen-
tence. Rather, under this definition, which the Court tells us its "pre-
cedents make clear," the "‘statutory maximum’ for Apprendi purposes
is the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant."
Id.
Furthermore, time and again throughout its analysis, the Blakely
Court employs language that reflects its total indifference to whether
or not the "statutory maximum" for "Apprendi purposes" is actually
embodied in a statute. See, e.g., id. at 2537 (referring to the "maxi-
mum [the judge] could have imposed under state law" when describ-
ing the facts in Ring and Apprendi) (emphasis added); id. at 2538
(observing that neither McMillan v. Pennsylvania, 477 U.S. 79
(1986), nor Williams v. New York, 337 U.S. 241 (1949), "involved a
sentence greater than what state law authorized") (emphasis added);
id. (concluding that "[b]ecause the State’s sentencing procedure did
not comply with the Sixth Amendment, petitioner’s sentence is
invalid") (emphasis added); id. at 2540 (explaining how a sentencing
"system" violates the Sixth Amendment) (emphasis added); id. at
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2543 (noting that Blakely "was sentenced to prison for more than
three years beyond what the law allowed") (emphasis added). The
majority must ignore all of this language in order to hold that a single
fact, regarded as inconsequential by the Blakely Court, constitution-
ally distinguishes that case from the one at hand.
This is precisely the sort of emphasis on "form" rather than "effect"
that the Supreme Court has repeatedly held improper in determining
the scope of Sixth Amendment jury-trial rights. See Ring, 536 U.S. at
602 ("[T]he dispositive question . . . ‘is one not of form, but of
effect.’" (quoting Apprendi, 530 U.S. at 494). For, although the fed-
eral guidelines (promulgated as they are by an administrative agency)
are not statutes, they are, as we recognized in Kinter itself, "nearly
indistinguishable from congressionally enacted criminal statutes." 235
F.3d at 200. The Guidelines have the force of statutory law, Stinson
v. United States, 508 U.S. 36, 45 (1993), and the maximum sentences
contained in them "are incorporated into the federal statutes by 18
U.S.C. § 3553(b)" and "may not be exceeded by sentencing judges."
Kinter, 235 F.3d at 200. The Sentencing Commission remains "fully
accountable to Congress, which can revoke or amend any or all of the
Guidelines as it sees fit . . . at any time." Mistretta v. United States,
488 U.S. 361, 393-94 (1989); see also United States v. Ameline, 376
F.3d 967, 977 (9th Cir. 2004) (listing instances in which "Congress
has utilized [its] authority to shape the Guidelines directly"). As Judge
Posner noted in holding for the Seventh Circuit that the Blakely rule
applies to the federal guidelines, "if a legislature cannot evade . . . the
commands of the Constitution by a multistage sentencing scheme nei-
ther" can the Sentencing Commission, which is simply "exercising
power delegated to it by Congress." United States v. Booker, 375 F.3d
508, 511 (7th Cir. 2004), cert. granted, 73 U.S.L.W. 3073, 2004 WL
1713654 (Aug. 2, 2004).
C.
Most troubling, the majority’s "understanding," which interprets
Blakely as applying only to maximum sentences set forth in statutes
and not to those set forth in the federal guidelines, undermines the
very purpose of the Blakely holding.
The Supreme Court explained in Blakely that the Apprendi princi-
ple had to be applied to maximums set forth in sentencing guidelines
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to give "intelligible content" to Sixth Amendment rights, creating a
"bright-line" rule. Blakely, 124 S.Ct. at 2538, 2540. Preservation of
jury-trial rights as a "fundamental reservation of power in our consti-
tutional structure," rather than a "mere procedural formality," required
such a rule. Id. at 2538 39. Otherwise, a legislature could eviscerate
Sixth Amendment rights by choosing to "label" a fact as a guidelines
sentencing factor to be found by a judge by a preponderance of evi-
dence, rather than a crime or element of a crime to be found by a jury
beyond a reasonable doubt. Id. Yet the majority’s holding, that maxi-
mum sentences set out in the federal guidelines do not constitute
"statutory maximums" for "Apprendi purposes," leaves Congress free
to undercut Sixth Amendment rights in the very manner Blakely
sought to prohibit. Under the majority’s holding, Congress can choose
not to criminalize conduct yet still require the Sentencing Commis-
sion to develop guidelines mandating punishment of that very conduct
upon a judicial finding by a mere preponderance of the evidence.
The Blakely Court clearly recognized that the federal guidelines
presented this problem. Witness the Court’s discussion of whether
obstruction of justice should constitute a sentencing factor or a sepa-
rate crime. Citing the upward adjustment required upon a judicial
finding of obstruction of justice in the federal guidelines, U.S.S.G.
§ 3C1.1, Justice O’Connor, in dissent, complained that the Blakely
rule would prevent consideration at sentencing of obstructive behav-
ior not discoverable before trial. See Blakely, 124 S. Ct. at 2546
(O’Connor, J., dissenting). In response, the Blakely majority sug-
gested that perjury during trial should be "an entirely separate offense
to be found by a jury beyond a reasonable doubt"; to treat it as a fact
to be considered by the sentencing judge would be "[a]nother exam-
ple of conversion from separate crime to sentence enhancement." Id.
at 2540 n.11. Yet, in the case at hand, the majority sanctions exactly
this "conversion," by affirming a sentence enhanced by a judicial
finding of obstruction of justice, in a case in which the jury never con-
sidered any evidence as to obstruction.
Affirmance of the obstruction enhancement, moreover, is neither
the most obvious nor most significant example in this case of the
manner in which the majority’s holding undermines Blakely’s stated
purpose of creating a bright-line rule safeguarding Sixth Amendment
rights. For in the case at hand, the federal guidelines also required the
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district judge to determine if Hammoud acted with specific intent "to
influence . . . the conduct of government by intimidation," 18 U.S.C.
§ 2332b(g)(5), and, if so, to apply a "terrorism adjustment" — even
though specific intent has long been recognized as an element of a
crime to be determined by a jury beyond a reasonable doubt. See, e.g.,
Carter v. United States, 530 U.S. 255 (2000). The Guidelines-
mandated application of the terrorism adjustment and other judicial
findings increased Hammoud’s sentence beyond what would have
been justified by the jury’s verdict alone by more than 3000%.
That the Sentencing Commission, not Congress itself, fashioned
the guideline that required this "conversion" plainly fails to eliminate
the Sixth Amendment problem targeted by the Supreme Court. Not
only is the Commission generally "fully accountable to Congress,
which can revoke or amend any or all of the Guidelines as it sees fit
. . . at any time," Mistretta, 488 U.S. at 393-94, but in this instance
Congress expressly directed the Commission to promulgate a terror-
ism guideline, with specific intent as an "appropriate enhancement."
See Violent Crime Control Act, Pub.L. 103-322, Sept. 13, 1994, 108
Stat. 1796, § 120004 (directing the Commission "to amend its sen-
tencing guidelines to provide an appropriate enhancement for any fel-
ony . . . that involves or is intended to promote international terrorism,
unless such involvement or intent is itself an element of the crime").
Thus, the unconstitutional "conversion" of a crime to a sentencing
factor is as clearly the responsibility of Congress in the case at hand
as it was of the Washington legislature in Blakely.
In sum, the majority adopts an "understanding" of Blakely at odds
with the case’s holding and rationale, based entirely on a single fact
of no importance to the Blakely Court itself. This "understanding"
places form over effect, violating the Supreme Court’s express man-
date that "the dispositive question . . . ‘is one not of form, but of
effect.’" Ring, 536 U.S. at 602 (quoting Apprendi, 530 U.S. at 494).
Most regrettably, this "understanding" undermines the very purpose
of the Blakely holding — the creation of a bright-line rule to ensure
protection of jury-trial rights. Instead of adopting this "understanding"
of Blakely, we should follow Blakely as written. In short, we should,
as the Supreme Court directed, hold that the "‘statutory maximum’ for
Apprendi purposes is the maximum a judge may impose solely on the
basis of facts reflected in the jury verdict." Blakely, 124 S.C. at 2537.
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III.
The majority seeks to justify its refusal to follow Blakely’s clear
directive by asserting that to do so would create two problems.4 The
justification fails; these alleged problems are mere makeweights.
A.
First, the majority contends that following this directive would
mean that the Blakely Court did not, as it said it had, "apply" the
Apprendi rule, but instead broadened that rule by "redefining" the
term "statutory maximum" to extend the term to non-statutory sen-
tences. See ante at 40-41, 43, 45. The majority’s contention, however,
rests on an entirely false premise: that the definition of "statutory
4Unlike the majority, which recognizes the Blakely (and Apprendi)
directive but argues that it does not apply to the federal guidelines, Judge
Wilkinson in concurrence essentially argues that the Supreme Court got
it wrong. He contends that, "[i]f the judiciary is now to announce that
sentencing factors must be found as elements beyond a reasonable doubt,
that badly skews the balance that Congress has historically been able to
strike between guilt and punishment," and represents an encroachment of
the judiciary on the province of the legislature. Ante at 54. But treating
"sentencing factors" that mandate enhancement of a sentence as "ele-
ments" is exactly what Blakely, Ring, and Apprendi hold the Sixth
Amendment requires: "[A]ll facts legally essential to the punishment"
must be proved to a jury beyond a reasonable doubt, Blakely, 124 S.C.
at 2537—whether they are labeled "elements of the offense, sentencing
factors, or Mary Jane." Ring, 536 U.S. at 610 (Scalia, J. concurring); see
also Ring, 536 U.S. at 602; Apprendi, 530 U.S. at 494 n.19. In the face
of this controlling precedent, the concurrence’s diatribe is surprising —
and inappropriate. (Although the concurrence offers a long, rhetoric-
filled response to this footnote, ante at 56-57 n.*, it still refuses to
acknowledge that the Supreme Court has already rejected its view that
the legislature always controls what facts must be proved to a jury; the
Court has concluded that all facts essential to punishment, including
those denominated "sentencing factors" by the legislature, must be
proved to a jury "to give intelligible content to the right of jury trial."
Blakely, 124 S. Ct. at 2538. The Court apparently determined that this
holding was not "antithetical to our democracy," ante at 56, but required
by it, in order to accomplish the judiciary’s most important function: pro-
tecting individual constitutional rights from legislative encroachment).
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maximum" set forth in Blakely differs from the Court’s definition of
that term in Apprendi.
As the majority recognizes, the Blakely Court carefully explained
that it did not "redefine" the term "statutory maximum," but simply
"applied" the Apprendi understanding of that term. See Blakely, 124
S.C. at 2537. What the majority refuses to recognize is that the
Blakely Court also carefully explained that the term "statutory maxi-
mum," as it was used in Apprendi, means "the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant." Id. Thus, immediately prior to
stating this definition of "statutory maximum," the Blakely Court
noted that the definition was the one "made clear" by "[o]ur prece-
dents," citing Apprendi and its progeny, Ring and Harris. Id.
That the courts of appeals, including this one in Kinter, misinter-
preted the meaning of "statutory maximum" as used in Apprendi by
construing it too narrowly, of course, sheds no light on the correct
interpretation of the term in Apprendi. Rather, we must take the
Supreme Court at its word — that in Blakely it "applied" Apprendi,
setting forth the meaning of "statutory maximum" as that term was
used in Apprendi.
B.
The majority’s other "problem" with following Blakely as written
is that doing so would assertedly "undermine" or "outright nullify"
Supreme Court decisions prior to Blakely. See ante at 42-45. This is
a powerful argument — if, but only if, a prior Supreme Court decision
directly controls the case at hand. When that is so, of course,
"Court[s] of Appeals should follow the [Supreme Court] case which
directly controls, leaving to [the Supreme] Court the prerogative of
overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237
(1997) (internal quotation marks and citation omitted). But, as the
Government expressly conceded at oral argument, there is no
Supreme Court case "directly controlling" the case at hand. Thus, as
the Government acknowledged, the Agostini rule does not apply here.5
5The Government’s concession that the Agostini rule does not apply
here accords with the fine amicus brief the United States filed on behalf
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Tellingly, in Kinter, this court took the same view. We did not sug-
gest that holding that "statutory maximum" for Apprendi purposes
included Guidelines’ maximums would "undermine" or "outright nul-
lify" Supreme Court precedent; instead, we characterized the issue as
"complex" and recognized "at least a colorable argument that the Sen-
tencing Guidelines do provide [the relevant] maximum." See Kinter,
235 F.3d at 200-201.
The majority carefully avoids citation of Agostini (perhaps hoping
to escape reminder of the Government’s express concession and our
rationale in Kinter) but nonetheless seeks to apply the Agostini rule
and treat prior Supreme Court cases as squarely presenting (and
resolving) the Sixth Amendment question at issue here. Prior
Supreme Court precedent, however, simply does not reach the consti-
tutional issue presented here. As every other court of appeals to have
considered the question has held, the Supreme Court cases relied on
by the majority "do not discuss the Sixth Amendment right to a jury
trial" and a holding that the "statutory maximum" for "Apprendi pur-
poses" includes Guidelines maximums "would not directly ‘overrule’
any Supreme Court holding." Pineiro, 2004 WL 1543170, at *9; see
also Ameline, 376 F.3d at 977-78; Booker, 375 F.3d at 513-14.
The fact is that the Supreme Court has never upheld the use of the
judicial fact-finding mandated by the federal guidelines in the face of
a direct Sixth Amendment challenge to that practice. Not one of the
cases relied on by the majority reaches that question. In Mistretta, the
Court simply held that the creation of the Sentencing Commission and
federal guidelines did not violate separation of powers and delegation
principles; the Court did not consider whether application of certain
federal guidelines violated the Sixth Amendment. 488 U.S. at 393-94.
In United States v. Watts, the Court ruled only that a Guidelines sen-
tence withstood a Fifth Amendment Double Jeopardy challenge. 519
of the State in Blakely. There, the Government did not even imply that
prior Supreme Court precedent precluded application of the Apprendi
rule to the federal guidelines. On the contrary, the Government warned
that "[a] decision in favor of [Blakely] could . . . raise a serious question
about whether Apprendi applies to myriad factual determinations under
the Guidelines." Brief for the United States as Amicus Curiae, No. 02-
1632, 2004 WL 177025, at *26.
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U.S. 148, 157 (1997). And, in Edwards v. United States, the Court
expressly disclaimed consideration of any constitutional claims. 523
U.S. 511 (1998); id. at 516 (noting that we "need not, and we do not,
consider the merits of petitioners’ . . . constitutional claims").6
In refusing to follow Blakely’s plain language, purportedly because
to do so would "undermine" or "outright nullify" prior Supreme Court
precedent, the majority does not just misapply the Agostini rule. It
also avoids our constitutional duty to decide properly presented
claims in accord with current Supreme Court instruction. As Judge
Bork explained, even if lower courts believe, as the majority appar-
ently does, that "more recent decisions" of the Supreme Court "create
discontinuities with older precedent," lower courts must discern and
apply the law as it presently exists and "leave" the "resolution of such
discontinuities, if such there be" to the Supreme Court. Haitian Refu-
gee Center v. Gracey, 809 F.2d 794, 798 (D.C. Cir. 1987) (Opinion
of Bork, J.).
IV.
The majority offers no legitimate reason for refusing to apply the
Supreme Court’s instruction — "that the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted
6Moreover, the petitioners in Edwards did not raise a Sixth Amend-
ment challenge to sentencing factors grounded in judicial findings under
the Guidelines; they argued only that the sentencing judge’s selection of
the relevant maximum under the statutes at issue violated the Sixth
Amendment. See Ameline, 376 F.3d at 978 (characterizing Edwards in
the same way); Booker, 375 F.3d at 514 (observing that "the petitioners
in Edwards did not argue that the sentencing guidelines are unconstitu-
tional" and concluding that "[t]he most that can be dug out of their briefs
. . . is that they were urging a statutory interpretation that would avoid
a Sixth Amendment issue") (emphasis in original). Accordingly, it is
hardly surprising that, notwithstanding the majority’s reliance on
Edwards, we did not cite the case in Kinter, let alone suggest, as the
majority now does, that Edwards answered the question of whether the
Apprendi rule applies to the Guidelines. Nor did the Government, which
now also heavily leans on Edwards, even mention the case in its amicus
brief in Blakely.
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by the defendant." 124 S.C. at 2537 (emphasis in original). The
Supreme Court has held that the Sixth Amendment affords "[e]very
defendant . . . the right to insist that the prosecutor prove to a jury all
facts legally essential to the punishment." Id. at 2543 (first emphasis
added). Neither the Supreme Court, nor the Constitution, permits us
to deny this right to defendants prosecuted by the federal government.
The majority’s holding does precisely that. Accordingly, I must
respectfully dissent.
Judge Michael and Judge Gregory join in this dissent.
GREGORY, Circuit Judge, dissenting:
I join in full Judge Motz’s fine dissenting opinion on the Blakely
issues. I write separately, however, to dissent from the judgment. I
believe the majority incorrectly concludes that AEDPA’s "material
support" provision, 18 U.S.C. § 2339B, is constitutional as applied in
this case. As the Ninth Circuit has held, a strict textual reading of
§ 2339B(a)(1)’s plain language raises serious due process concerns.
See Humanitarian Law Project v. U.S. Dep’t of Justice, 352 F.3d 382,
396 (9th Cir. 2003) (hereinafter "Humanitarian Law Project III")
("We believe that serious due process concerns would be raised were
we to accept the argument that a person who acts without knowledge
of critical information about a designated organization presumably
acts consistently with the intent and conduct of that designated organiza-
tion.").1
Unlike the Ninth Circuit, however, I do not believe that these con-
stitutional infirmities can be cured by reading the statutory term
"knowingly" as a scienter requirement meaning only that the defen-
dant had knowledge of the organization’s designation as a foreign ter-
rorist organization ("FTO"), or that he or she knew of the
organization’s unlawful activities that caused it to be so designated.2
1The Ninth Circuit and most other courts citing the Humanitarian Law
Project cases use these Roman numeral designations, referring to the
original district court case, Humanitarian Law Project v. Reno, 9 F.
Supp. 2d 1176 (C.D. Cal. 1998), as "Humanitarian Law Project I".
2It is interesting to note that during the writing of this dissent, the
Ninth Circuit agreed to hear Humanitarian Law Project III en banc and
has thus vacated the three-judge panel opinion. See Humanitarian Law
Project v. U.S. Dep’t. of Justice, No. 02-55082, 2004 U.S. App. LEXIS
18933 (9th Cir. Sept. 8, 2004).
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See id. at 400. But cf. Humanitarian Law Project v. Reno, 205 F.3d
1130 (9th Cir. 2000) ("Humanitarian Law Project II") (Kozinski, J.)
(stating "the term ‘knowingly’ modifies the verb ‘provides,’ meaning
that the only scienter requirement here is that the accused violator
have knowledge of the fact that he has provided something, not
knowledge of the fact that what is provided in fact constitutes mate-
rial support"). Instead, I would follow the reasoning of United States
v. Al-Arian, 308 F. Supp. 2d 1322 (M.D. Fla. 2004), and conclude that
to save the statute, one must apply the mens rea requirement to the
entire "material support" provision such that the government must
prove that the defendant (1) knew the organization was a FTO or
knew of the organization’s unlawful activities that caused it to be so
designated and (2) knew what he or she was providing was "material
support," i.e., the government must show that the defendant had a spe-
cific intent that the support would further the FTO’s illegal activities.
Because Hammoud was convicted of "material support" without the
proper scienter requirement, violating his constitutional rights under
the First and Fifth Amendments, I would hold that these constitutional
violations constitute plain error and thus vacate his material support
conviction.
I.
Hammoud and his Amici Curiae, the Center for Constitutional
Rights, the National Coalition to Protect Political Freedom, the
National Association of Criminal Defense Lawyers, and the National
Lawyers Guild, raise a bevy of constitutional challenges to Ham-
moud’s conviction under 18 U.S.C. § 2339B, including assertions that
the "material support" provision is vague and overbroad in violation
of the First Amendment, and that the statute violates the First and
Sixth Amendments because the defendant cannot challenge the FTO
designation. Moreover, Hammoud and Amici Curiae challenge Ham-
moud’s conviction on the basis that the statute lacks a specific intent
requirement, which they contend is essential to avoid "guilt by associ-
ation" in violation of the First and Fifth Amendments.
A.
To be sure, Hammoud faces a most difficult burden in this case
because he failed to raise his constitutional claims at trial. Accord-
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ingly, we review his claims for plain error. United States v. Higgs,
353 F.3d 281, 324 (4th Cir. 2003) (reviewing constitutional claim not
raised below for plain error); United States v. Ferguson, 211 F.3d
878, 886 (5th Cir. 2000) (reviewing allegation of constitutional viola-
tion for plain error because defendant failed to raise the issue below).
But cf. United States v. Osborne, 345 F.3d 281, 284 n.2 (4th Cir.
2003) (noting that the Tenth Circuit applies the plain error rule "less
rigidly" when reviewing constitutional issues) (citing United States v.
Ciapponi, 77 F.3d 1247, 1249-50 (10th Cir. 1996)).3 To satisfy this
standard, Hammoud must show that (1) an error occurred,(2) the error
was plain, (3) and the error affected his substantial rights. United
States v. Olano, 507 U.S. 725, 731-34 (1993); accord Johnson v.
United States, 520 U.S. 461, 467 (1997). If the first three elements are
met, we may exercise our discretion to correct such forfeited error
only where it "seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings." Olano, 507 U.S. at 732 (internal quo-
tation marks and citations omitted); see also Fed. R. Crim. P. 52(b)
(2002) ("A plain error or defect that affects substantial rights may be
considered even though it was not brought to the court’s attention.").
When "overwhelming and essentially uncontroverted" evidence exists
to support the challenged finding, there is "no basis for concluding
that the error seriously affected the fairness, integrity or public reputa-
tion of judicial proceedings." United States v. Cotton, 535 U.S. 625,
633 (2002) (internal quotation marks and citations omitted).
B.
In 8 U.S.C. § 1189(a), Congress authorized the Secretary of State
(hereinafter the "Secretary") to designate an organization as a "foreign
terrorist organization." To exercise this authority, the Secretary must
find the organization (1) is foreign, (2) engages in terrorist activity,
and (3) such activity threatens the security of United States nationals
or the national security of the United States. Id. § 1189(a)(1).4 In
3Furthermore, the Ninth Circuit has held that it may, in its "discretion,
resolve a pure issue of law raised for the first time on appeal . . . when
‘injustice might otherwise result.’" Humanitarian Law Project III, 352
F.3d at 394 (quoting Singleton v. Wulff, 428 U.S. 106, 121 (1976)).
4"Terrorist activity" is defined in 8 U.S.C. § 1182(a)(3)(B), and "na-
tional security" is defined in § 1189(c)(2), although those definitions are
not at issue in this case.
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determining whether to designate an organization as a FTO, the Sec-
retary is not required to notify the organization being considered for
designation. Moreover, the organization does not have a right to be
heard during the designation process.5 Instead, the Secretary compiles
an "administrative record" in which "findings" are made as to whether
an organization is to be designated. Id. §§ 1189(a)(2)(A)(i), (3)(A).
If an organization is so designated, the consequences are "dire."
Nat’l Council of Resistance of Iran, 251 F.3d at 196. Its members and
representatives may not enter the United States, 8 U.S.C.
§ 1182(a)(3)(B)(i), its assets may be frozen by the Department of
Treasury, id. § 1189(a)(2)(C), and financial institutions are required
to freeze its assets, 18 U.S.C. § 2339B(a)(2). Moreover, as is at issue
here, § 2339B makes it a crime punishable by a maximum of life
imprisonment if a person "knowingly provides material support or
resources" to such an organization. Id. § 2339B(a)(1). "Material sup-
port or resources" includes "currency or monetary instruments, finan-
cial securities, financial services, lodging, training, expert advice or
assistance, safehouses, false documentation or identification, commu-
nications equipment, facilities, weapons, lethal substances, explo-
sives, personnel, transportation, and other physical assets, except
medicine and religious materials." Id. §§ 2339A(b), 2339B(g)(4).6
The statute does not define what those terms mean in the context of
the proscribed activity.
A designated organization may seek review of the Secretary’s des-
ignation, but may only do so in the Court of Appeals for the District
of Columbia. Id. § 1189(b)(1). The District of Columbia Circuit’s
review is "based solely upon the administrative record," but the gov-
ernment may submit classified information for in camera review. Id.
5In Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192,
208 (D.C. Cir. 2001), the D.C. Circuit held that these provisions violated
the Fifth Amendment’s due process requirement, and thus held that the
entities under consideration have a due process right to "notice that the
designation is pending." However, the court also crafted an exception in
instances where "notification would impinge upon the security and other
foreign policy goals of the United States." Id.
6The Patriot Act modified this definition, but that revision is not at
issue here.
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§ 1189(b)(2). Moreover, the Secretary’s designation may only be set
aside if it is arbitrary or capricious, or otherwise contrary to law. Id.
Finally, § 1189(a)(8) expressly states that a defendant may not contest
the validity of the organization’s designation as a defense or objection
at trial.
In both October of 1997 and October of 1999, the Secretary desig-
nated Hizballah as a FTO. 64 Fed. Reg. 55,112 (1999); 62 Fed. Reg.
52,650 (1997). Neither the record nor case law indicates that Hizbal-
lah has ever challenged the validity of this designation.
In the instant case, Count 72 of the Second Superceding Indictment
alleged that Hammoud engaged in a conspiracy to provide "material
support" to Hizballah and that its objective was to furnish the FTO
"currency, financial services, training, false documentation and identi-
fication, communications equipment, explosives and other physical
assets to Hizballah and its operatives, in order to facilitate its violent
attacks." J.A. 482 ¶ 3. Hammoud was identified as a fund-raiser, id.
at 483 ¶ 4(e), and Count 78 alleged that he provided material support
to Hizballah by transmitting $3,500 to Sheik Abbas Harake via Said
Harb, id. at 498 ¶ 2. The jury convicted Hammoud on both counts.
II.
As noted above, Hammoud levies a series of interwoven7 First and
Fifth Amendment challenges against AEDPA’s material support pro-
visions. Specifically, he alleges that the material support provision (1)
penalizes association; (2) is impermissibly vague; (3) is facially over-
7Indeed, the freedom of association and vagueness arguments neces-
sarily blend with the Fifth Amendment claim regarding the statute’s
criminalization of conduct without the requisite "personal guilt." In short,
the law lacks the sufficient clarity that would allow persons of "ordinary
intelligence a reasonable opportunity to know what is prohibited."
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). However, even
if an individual would reasonably understand that all support of a FTO
is prohibited, when the statute is applied without a specific intent require-
ment, a tension arises because the statute criminalizes "support" of a
FTO, though the defendant’s conduct has no connection to "concededly
criminal activity," thus violating the Fifth Amendment.
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broad;8 and (4) violates due process and his Sixth Amendment right
to a jury trial.9
A.
Hammoud and Amici Curiae argue that the "material support" pro-
vision is unconstitutional because it penalizes association, in violation
of the First Amendment, and fails to require the requisite specific
8It is not necessary to discuss Hammoud’s overbreadth challenge in
any significant fashion because the overbreadth standard is a exceedingly
narrow exception to the normal rule regarding facial challenges. See Vir-
ginia v. Hicks, 539 U.S. 113, 118 (2003). As such "[e]ven where a statute
at its margins infringes on protected expression, ‘facial invalidation is
inappropriate if the remainder of the statute . . . covers a whole range of
easily identifiable and constitutionally proscribable . . . conduct.’"
Osborne v. Ohio, 495 U.S. 103, 112 (1995) (quoting New York v. Ferber,
458 U.S. 747, 770 n.25 (1982)). Here, because statutory terms such as
"weapons" and "explosives" are clearly not overbroad, this substantiality
showing is most difficult to overcome.
9Likewise, I do not discuss in detail the Sixth Amendment argument
raised with reference to the Secretary of State’s designation provisions,
because it lacks merit. In short, while the fact of the Secretary’s designa-
tion is an element of the offense, the designation’s validity is not. Cf.
United States v. Bozarov, 974 F.2d 1037, 1045-46 (9th Cir. 1992)
(because Secretary’s licensing designation was not an element of the
criminal charge, defendant’s inability to challenge designation did not
violate due process); United States v. Mandel, 914 F.2d 1215, 1221 (9th
Cir. 1990) (holding under Export Administration Act, Secretary’s deci-
sion to control a commodity "does not involve the defendant’s individual
rights and is not an element of the charged offense").
In United States v. Sattar, 272 F. Supp. 2d 348, 367 (S.D.N.Y. 2003),
the court applied this reasoning to reject precisely the sort of challenge
Hammoud levies, stating "[t]he correctness of the designation itself is not
an element of the offense and therefore the defendants’ right to due pro-
cess is not violated by their inability to challenge the factual correctness
of that determination." See also Al-Arian, 308 F. Supp. 2d at 1344-47
(rejecting the same). But see United States v. Rahmani, 209 F. Supp. 2d
1045, 1053-58 (C.D. Cal. 2002) (finding individual defendant had stand-
ing to challenge an organization’s designation and that § 1189 is uncon-
stitutional).
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intent, thus contravening the Fifth Amendment requirement of "per-
sonal guilt." They first frame these arguments by relying on the unim-
peachable, but basic and preliminary, proposition that the Constitution
protects individuals from being punished solely because of their asso-
ciation with a group. See NAACP v. Claiborne Hardware Co., 458
U.S. 886, 920 (1982) (holding that "liability may not be imposed
merely because an individual belonged to a group, some members of
which committed acts of violence"); Healy v. James, 408 U.S. 169,
186 (1972) (holding that "guilt by association" may not be imposed);
Scales v. United States, 367 U.S. 203, 229 (1961) ("If there were a
[ ] blanket prohibition of association with a group having both legal
and illegal aims, there would indeed be a real danger that legitimate
political expression or association would be impaired.").
The counter argument to this basic proposition, of course, is that
§ 2339B does not seek to impose criminal liability for association or
membership alone, but instead does so for involvement in terrorism
— i.e., "material support." In this vein, the government asserts that
Hammoud’s arguments obscure the gravamen of the offense of which
he was convicted; specifically, it argues that the overt act of providing
$3,500 to Said Harb, which was passed on to Sheik Abbas Harake,
is distinguishable from association.10 To advance its argument, the
government relies on a body of cases in which AEDPA’s material
support provision has been held distinguishable from a prohibition on
association. See People’s Mojahedin Org. of Iran v. Dep’t of State,
327 F.3d 1238, 1244 (D.C. Cir. 2003) (holding the material support
provision does not violate rights of free speech and association);
Humanitarian Law Project II, 205 F.3d at 1133 ("[AEDPA] does not
prohibit being a member of one of the designated groups . . . . Plain-
tiffs are even free to praise the group for using terrorism as a means
of achieving their ends. What AEDPA prohibits is the act of giving
material support, and there is no constitutional right to facilitate ter-
10Indeed, a pure First Amendment freedom of association argument
may be somewhat overstated because Hammoud’s prosecution did not
rely on mere association to the extent at issue in the communist cases;
rather, the indictment alleged that he "knowingly provide[d] . . . material
support or resources to Hizballah . . . by causing Said Harb to transport
$3,500 . . . to Sheik Abbas Harake." J.A. 498. Nonetheless, as discussed
below, the statute does not avoid the "personal guilt" infirmity.
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rorism by giving terrorists the weapons and explosives . . . . Nor, of
course, is there a right to provide resources with which terrorists can
buy weapons and explosives."); United States v. Sattar, 272 F. Supp.
2d 348, 368 (S.D.N.Y. 2003) (rejecting "associational rights" claim);
United States v. Lindh, 212 F. Supp. 2d 541, 549 (E.D. Va. 2002)
(same).11 Typical of this line of cases in which pure First Amendment
challenges are at issue, in Humanitarian Law Project II, 205 F.3d at
1133-34, the Ninth Circuit considered the constitutionality of
AEDPA’s material support provision. In doing so, the Ninth Circuit
11Relatedly, in defending the statute from First Amendment attack, the
government asserts that AEDPA need only satisfy the intermediate scru-
tiny standard of United States v. O’Brien, 391 U.S. 367, 376-77 (1968).
See Humanitarian Law Project II, 205 F.3d at 1135 (holding that the
material support restriction did not warrant strict scrutiny "because it is
not aimed at interfering with the expressive component of their conduct
but at stopping aid to terrorist groups"). Under O’Brien, the court must
determine whether: (1) the regulation is within the government’s power;
(2) it supports an important or substantial government interest; (3) the
regulation is unrelated to the suppression of speech; and (4) the restric-
tion on speech is no greater than necessary. 391 U.S. at 377. While,
assuming arguendo that intermediate scrutiny applies and AEDPA satis-
fies the first three standards as the regulation is within the war and for-
eign policy powers, serves an important interest in preventing terrorism,
is arguably related to suppressing certain conduct, not speech, the
emphasis of our inquiry falls on whether AEDPA is sufficiently well tai-
lored to meet these end goals. I suggest that it is not because the "mate-
rial support" provision’s vast sweep leads to a Fifth Amendment
violation. Because I believe such a result follows under O’Brien, I do not
examine a strict scrutiny challenge to the statute. I note, however, that
the Amici make, at least, a colorable argument that strict scrutiny applies.
See Br. of Amici Curiae at 11 n.2 (arguing AEDPA’s material support
statute "does not impose a content-neutral ban on conduct . . . but instead
punishes particular support only when done in association with specific
disfavored political groups. . . . The ‘material support’ statute’s prohibi-
tion on designated groups is analogous to a campaign finance law that
restricted contributions only to particular political parties selected by the
incumbent government."); see also Al-Arian, 308 F. Supp. 2d at 1334-35
(recognizing that level of scrutiny applied would depend on how broadly
the court interpreted AEDPA; "[t]he broader this Court interprets [the
statute], the more likely that the statute[ ] receive[s] a higher standard of
review and [is] unconstitutional").
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held that a "specific intent" requirement, as in the communism cases,
should not apply to the provision of material support, because donat-
ing money and resources to a designated group is different than being
a mere member of, or advocate for, the group in question. Id.
B.
Here, however, Hammoud and Amici Curiae also advance a legally
independent — though somewhat interrelated to the First Amendment
argument — Fifth Amendment Claim, see Scales, 367 U.S. at 225
(analyzing Fifth Amendment claim "independently of the claim made
under the First Amendment"), which Humanitarian Law Project II
and the other cases noted above did not reach. Specifically, to pass
Fifth Amendment scrutiny and to avoid a "personal guilt" problem,
they argue that AEDPA’s material support provision must include a
scienter requirement, whereby the defendant must be found guilty of
a specific intent to further the illegal aims of the association. Br. of
Appellant at 25; Br. of Amici Curiae at 6 ("This statute is so sweeping
that it would apply to a citizen who sent a human rights or constitu-
tional law treatise to Hizballah to urge it to respect human rights and
desist from committing terrorist acts."). Hammoud and Amici Curiae
rely on more Communist Party cases to support their argument that
AEDPA’s "material support" provision is unconstitutional without
such a specific intent requirement. See, e.g., United States v. Robel,
389 U.S. 258, 264 (1967) (striking sections of statute that prohibited
communists from registering to engage in employment at defense
facilities); Aptheker v. Sec’y of State, 378 U.S. 500, 511 (1964) (strik-
ing down statutory provisions that prohibited members of communist
organization from applying for or using a passport because statute did
not require specific intent to further the unlawful aims of the organi-
zation); Scales, 367 U.S. at 224-25 (stating that "[i]n our jurispru-
dence guilt is personal" and holding that punishment can only be
justified by connecting "status or conduct to other concededly crimi-
nal activity"). In such cases, the Court held that statutory prohibitions
"swep[t] too widely and too indiscriminately across the liberty guar-
anteed in the Fifth Amendment," Aptheker, 378 U.S. at 514, because
the statutes carried the "danger of punishing a member of a Commu-
nist organization ‘for his adherence to lawful and constitutionally pro-
tected purposes, because of other and unprotected purposes which he
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does not share.’" Id. at 512 (quoting Noto v. United States, 367 U.S.
290, 299-300 (1961) and citing Scales, 367 U.S. at 299-300).
Hammoud and Amici Curiae assert that without a specific intent
requirement, AEDPA’s material support provision suffers the same
fate. In this context, Amici Curiae posit that Humanitarian II’s iso-
lated focus on the First Amendment renders the prohibition on guilt
by association a meaningless formality because under the Ninth Cir-
cuit’s reasoning:
[E]very anti-Communist law struck down by the Supreme
Court for imposing guilt by association could have simply
been rewritten to penalize dues payments to the Party. It
would also lead to the anomalous result that while leaders
of the NAACP could not be held responsible for injuries
sustained during an NAACP-led economic boycott absent
proof of specific intent, Claiborne Hardware, 458 U.S. at
920, the NAACP’s thousands of individual donors could
have been held liable without any showing of specific intent.
Amicus Br. at 8-9. As the Supreme Court has stated in the Fifth
Amendment context:
In our jurisprudence guilt is personal, and when the imposi-
tion of punishment on a status or on conduct can only be
justified by reference to that relationship of that status or
conduct to other concededly criminal activity . . ., that rela-
tionship must be sufficiently substantial to satisfy the con-
cept of personal guilt in order to withstand attack under the
Due Process Clause of the Fifth Amendment.
Scales, 367 U.S. at 224-25. Accordingly, Hammoud and Amici Curiae
argue that without a scienter requirement of specific intent, the neces-
sary connection to criminal activity is wanting.
Nevertheless, the government argues, Br. of Gov’t at 22 n.9, that
the Ninth Circuit’s most recent examination of the "material support"
provision within the Fifth Amendment context in Humanitarian Law
Project III assures that the necessary scienter requirement is satisfied,
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thus preventing any Fifth Amendment violation. In Humanitarian
Law Project III, the Ninth Circuit considered a Fifth Amendment
"personal guilt" challenge to the "material support" provisions, and
correctly recognized that "serious due process concerns" would be
raised by § 2339B unless the statute is applied with a scienter require-
ment. 352 F.3d at 393-94, 396-97. Like in the Communist Party cases
upon which Hammoud and Amici Curiae rely, the Ninth Circuit stated
that AEDPA’s material support provision "presumes that a person
acts with guilty intent whenever that person provides material support
to a designated organization." Id. at 396. The court further remarked,
"to attribute the intent to commit unlawful acts punishable by life
imprisonment to persons who acted with innocent intent—in this con-
text, without critical information about the relevant organization—
contravenes the Fifth Amendment’s requirement of ‘personal guilt.’"
Id. at 397.
However, to avoid the "serious due process concerns [that] would
be raised were we to accept the argument that a person who acts with-
out knowledge of critical information about a designated organization
presumably acts consistently with the intent and conduct of that desig-
nated organization," id., the Ninth Circuit followed the Supreme
Court’s guidance "that ‘a statute is to be construed where fairly possi-
ble so as to avoid substantial constitutional questions.’" Id. (quoting
United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994)).
Thus, in its efforts to apply § 2339B constitutionally, the court
adhered to well-settled Supreme Court law that there is a presumption
of construing criminal statutes to include a mens rea requirement. Id.
(citing cases). In applying those principles, the Ninth Circuit deter-
mined, as a matter of statutory interpretation, that § 2339B "does not
in any way suggest that Congress intended to impose strict liability
on individuals who donate ‘material support’ to designated organiza-
tions." Id. at 399. Accordingly, the Ninth Circuit read the word
"knowingly" as a limited specific intent requirement, demanding
"proof that a defendant knew of the organization’s designation as a
terrorist organization or proof that a defendant knew of the unlawful
activities that caused it to be so designated . . . to convict a defendant
under the statute." Id. at 400; see also id. at 402-03 (holding that to
convict under § 2339B, "the government must prove beyond a reason-
able doubt that the donor had knowledge that the organization was
designated by the Secretary as a [FTO] or that the donor had knowl-
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edge of the organization’s unlawful activities that caused it to be so
designated").
While the Ninth Circuit’s interpretation of "knowingly" is more
advanced than the quasi-strict liability standard upon which Ham-
moud was convicted, infra, I submit that such an interpretation of
§ 2339B’s mental state requirement is still insufficient to withstand
constitutional attack. In finding as much, I am in agreement with the
recent and well reasoned opinion in United States v. Al-Arian, 308 F.
Supp. 2d 1322 (M.D. Fla. 2004), in which the court considered defen-
dants’ motion to dismiss an indictment alleging a violation of
AEDPA’s "material support" provisions.
In Al-Arian, the court agreed with the Ninth Circuit that "a purely
grammatical reading of the plain language of Section 2339B(a)(1)
makes it unlawful for any person to knowingly furnish any item con-
tained in the material support categories" to a FTO, rendering the pro-
vision constitutionally infirm. Id. at 1337 (citing Humanitarian II).
The court, however, disagreed with the Ninth Circuit’s attempt to sal-
vage the statute based on application of the statutory term "know-
ingly" in Humanitarian III, stating that the Ninth Circuit’s
construction "only cures some of the Fifth Amendment concerns." Id.
The Al-Arian court first correctly recognized that the Ninth Circuit
failed to comply with the Supreme Court’s X-Citement Video holding
wherein it stated that a mens rea requirement "should apply to each
of the statutory elements that criminalize otherwise innocent con-
duct," 513 U.S. at 72, because Humanitarian III applied the mens rea
requirement only to the FTO element, not the material support ele-
ment. Al-Arian, 308 F. Supp. 2d at 1337. As such, the Al-Arian court
found that under the Ninth Circuit’s construction:
[A] cab driver could be guilty for giving a ride to a FTO
member to the UN, if he knows that the person is a member
of a FTO . . . . Similarly, a hotel clerk in New York could
be committing a crime by providing lodging to that same
FTO member under similar circumstances as the cab driver.
Id. at 1337-38.12 Accordingly, the court rejected Humanitarian III’s
12Similarly, Amici Curiae properly recognize that the jury was not
instructed that it had to find Hammoud intended the donation to be used
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construction, stating that the Ninth Circuit did not resolve the vague-
ness concerns. Id. at 1338.13
Yet rather than declare § 2339B unconstitutionally vague, the court
applied a saving construction consistent with X-Citement Video, and
applied the statute in the manner Hammoud and Amici Curiae advo-
cate. Id. at 1338-39. The court stated:
to convict a defendant under Section 2339B(a)(1) the gov-
ernment must prove beyond a reasonable doubt that the
defendant knew that (a) the organization was a FTO or had
committed unlawful activities that caused it to be so desig-
nated; and (b) what he was furnishing was "material sup-
port." To avoid Fifth Amendment personal guilt problems
. . . the government must show more than a defendant knew
something was within a category of "material support" in
order to meet (b). In order to meet (b), the government must
show that the defendant knew (had a specific intent) that the
support would further the illegal activities of a FTO.
Id. at 1338-39 (emphasis added).14 Indeed, I note that the Al-Arian
for any violent, terrorist, or otherwise unlawful purpose, thus setting up
the anomalous result that under § 2339B "Hammoud would be guilty
even if it were stipulated that his support was intended to further only
Hizballah’s lawful activities . . . [while] an individual who gave a dona-
tion to a non-designated group intending that it be used for terrorist
activity would not be guilty." Br. of Amici Curiae at 6.
13Even Humanitarian II seemed to acknowledge that the term "know-
ingly" did not cure any vagueness problems that existed. See 205 F.3d
at 1138 n.5 ("[T]he term ‘knowingly’ modifies the verb ‘provides’ mean-
ing that the only scienter requirement here is that the accused violator
have knowledge of the fact that he has provided something, not knowl-
edge of the fact that what is provided in fact constitutes material sup-
port.").
14Additionally, I note that even without the scienter requirement which
I advocate, various courts have struck aspects of the "material support"
provisions as void for vagueness. See Humanitarian II, 205 F.3d at 1137
(holding that term "personnel" is void for vagueness as the law is not
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court’s interpretation of § 2339B’s intent requirement, with which I
fully agree, is supported by statements in the Congressional Record
by Senator Hatch, who cosponsored AEDPA. In introducing the Sen-
ate Conference Report to the Senate, Senator Hatch remarked: "This
bill also includes provisions making it a crime to knowingly provide
material support to the terrorist functions of foreign groups desig-
nated by a Presidential finding to be engaged in terrorist activities."
142 Cong. Rec. 7550 (April 16, 1996) (statement of Sen. Hatch)
(emphasis added). In discussing the law, Senator Hatch seemingly
made clear that the law’s prohibitions on financing were connected to
terrorist acts; he stated:
[N]othing in the Constitution provides the right to engage in
violence against fellow citizens or foreign nations. Aiding
and financing foreign terrorist bombings is not constitution-
ally protected activity. . . . I have to believe that honest
donors to any organization want to know if their contribu-
tions are being used for such scurrilous terrorist purposes.
We are going to be able to tell them after this bill. . . . I am
convinced we have crafted a narrow but effective designa-
tion provision which meets these obligations while safe-
guarding the freedom to associate, which none of us would
willingly give up.
Id. at 7557 (statement of Sen. Hatch) (emphasis added).
"sufficiently clear so as to allow persons of ‘ordinary intelligence’ a rea-
sonable opportunity to know what is prohibited") (internal quotation
marks omitted) (citing Grayned, 408 U.S. at 108); id. at 1138 (holding
the term "training" is also void for vagueness, and stating "a plaintiff
who wishes to instruct members of a designated group on how to petition
the United States" for assistance could violate AEDPA); Humanitarian
Law Project v. Ashcroft, 309 F. Supp. 2d 1185, 1199 (C.D. Cal. 2004)
(holding "expert advice or assistance" is impermissibly vague); Sattar,
272 F. Supp. 2d at 361 (holding "personnel" and provision of "communi-
cations equipment" were impermissibly vague); see also Humanitarian
III, 352 F.3d at 403 (reiterating Humanitarian II holding that terms "per-
sonnel" and "training" were impermissibly vague). But cf. Lindh, 212 F.
Supp. 2d at 572-73 (holding term "personnel" was not overbroad).
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Furthermore, the Al-Arian court also recognized its conclusions
regarding § 2339B were consistent with the Seventh Circuit’s treat-
ment of the material support provisions in Boim v. Quranic Literacy
Institute & Holy Land Foundation for Relief and Development, 291
F.3d 1000 (7th Cir. 2002), which addressed § 2339B in a related con-
text. See Al-Arian, 308 F. Supp. 2d at 1339 n.33. In Boim, the Seventh
Circuit considered whether a § 2339B violation could serve as a basis
for § 2333 civil liability. The Seventh Circuit acknowledged that the
statute contained "tension" regarding a "definition of acts of interna-
tional terrorism . . . so broad that [defendants] might be held liable
for involvement in terrorist activity when all they intended was to
supply money to fund the legitimate, humanitarian mission of Hamas
or other organizations." Boim, 291 F.3d at 1022. To resolve that ten-
sion arising "when a group engages in both protected advocacy and
unprotected criminal acts," the Seventh Circuit turned to Claiborne
Hardware, Scales and other Communist Party cases and held that to
succeed on a § 2333 claim, a plaintiff must prove "‘that the group
itself possessed unlawful goals and that the individual held a specific
intent to further those illegal aims.’" Id. at 1022-23 (quoting Clai-
borne Hardware, 458 U.S. at 920). Specifically, the Seventh Circuit
reasoned that in the § 2333 context, such a showing requires proof
"that the defendants knew of [the organization’s] illegal activities,
that they desired to help those activities succeed, and they engaged in
some act of helping the illegal activities." Id. (citation omitted); see
also id. at 1024 (stating that it was "irrelevant" if the organization
engaged in "legitimate advocacy or humanitarian efforts . . . if [defen-
dants] knew about [the organization’s] illegal operations, and
intended to help [the organization] accomplish those illegal goals
when they contributed money to the organization") (citing Claiborne
Hardware, Scales and other cases). In the instant case, the district
court did nothing to insure that the jury was instructed upon, and the
government met, the proper scienter burden as described above.15
15Finally, the Al-Arian court remarked that the government’s scienter
burden is not "that great in the typical case." 308 F. Supp. 2d at 1339.
It suggested that the intent can often be easily inferred by juries, e.g., "a
jury could infer a specific intent to further the illegal activities of a FTO
when a defendant knowingly provides weapons, explosives, or lethal
substances to an organization that he knows is a FTO because of the
nature of the support." Id. More germane to the instant case, Al-Arian
also suggested that "a jury could infer a specific intent when a defendant
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For the foregoing reasons, I believe that § 2339B’s "material sup-
port" provisions constitute a violation of the Fifth Amendment when
applied without the necessary specific intent requirement. Unlike the
situation faced in Al-Arian, however, in Hammoud’s case it is many
days too late to apply a savings instruction — or to preliminarily
enjoin the government from applying the "material support" provision
as written, as in Humanitarian Law Project III — therefore, I turn to
the application and effect of the constitutional error in this case.
III.
As noted above, to obtain relief on his claim, Hammoud must sat-
isfy the plain error standard, showing that (1) an error occurred, (2)
the error was plain, i.e., obvious or clear, (3) the error affected sub-
stantial rights, and (4) the error seriously affected the fairness, integ-
rity or public reputation of judicial proceedings. Olano, 507 U.S. at
731-34. For the reasons that follow, I would find that Hammoud satis-
fies Olano’s plain error standard and he should be granted a new trial
on the "material support" charge.
A.
As discussed at length above, when § 2339B’s "material support"
provision is applied without a scienter requirement, as in this case,
constitutional error occurs. In Hammoud’s case, that error material-
ized when the jury was instructed that they could convict Hammoud
of violating AEDPA’s material support provision without instructing
them of the necessary scienter requirement. On Count 78, the district
court judge instructed the jury that to convict Hammoud under 18
U.S.C. § 2339B, "three essential elements" must be found. (1) "[Ham-
moud] provided or attempted to provide material support or resources
to Hizballah, a designated foreign terrorist organization;" (2) "[Ham-
moud] was within the United States or subject to the jurisdiction of
the United States;" and (3) "[Hammoud] did such act knowingly. . . .
knows that the organization continues to commit illegal acts and the
defendant provides funds to that organization knowing that money is fun-
gible and, once received, the donee can use the funds for any purpose it
chooses." Id.
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You will recall the definition[ ] I previously gave you for the term[ ]
. . . knowingly." J.A. 3391-92. Regarding "knowingly," the district
court had previously charged the jury with the instruction: "The term
‘knowingly’ as used in these instructions to describe the alleged state
of mind of the defendant, means that he was conscious and aware of
his action, realizing what he was doing or what was happening around
him, and did not act because of ignorance, mistake or accident." Id.
at 3302.
In short, the district court judge gave the jury no instructions
regarding a scienter requirement — whether in a manner akin to that
employed by the Ninth Circuit or the Middle District of Florida — for
AEDPA’s "material support provision." While we review an errone-
ous jury instruction in light of the entire charge, Jones v. United
States, 527 U.S. 373, 390-91 (1999), the district court in the instant
case erred by failing to provide appropriate guidance regarding a spe-
cific intent requirement.
B.
In finding that the error was plain, I suggest that despite the fact
that Hammoud’s trial counsel did not properly serve up the Fifth
Amendment claim here at issue, the district court judge was well-
aware of the sweeping nature of the "material support" charge and the
inherent possibility that it would criminalize conduct without personal
guilt. At the charge conference, the government advocated that the
court take the Ninth Circuit’s approach in Humanitarian Law Project
II. Citing that case, the government stated, "[y]ou may find a violation
even if the defendant did not intend to aid in the organization’s
unlawful activities. The whole thing was just sending it to the orphans
to [sic] Hizballah." J.A. 3256 (emphasis added). While the prosecu-
tor’s statement was clearly tongue-in-cheek, the impact of the "mate-
rial support" provision as applied had the effect which the prosecutor
suggested. Under the district court’s instructions, Hammoud could
have been convicted for helping assist Hizballah orphans or humani-
tarian works if the organization had such projects. While the district
court declined to enter the quasi-strict liability instruction that the
government advocated, the judge told the prosecutor, "[y]ou can
argue that. I’m not going to quote anything from the Ninth Circuit
until the Fourth Circuit tells me okay." Id. at 3256.
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Furthermore, the district court implicitly acknowledged the exis-
tence of the constitutional infirmities challenged on appeal, yet it
chose to proceed with the scienter-less instruction nonetheless. In dis-
cussing "material support," the following colloquy took place
between the district court judge and the federal prosecutor:
THE COURT: Material support. Define. Now question: Is
there any evidence or any question about
materiality or is anything that goes consid-
ered material support.
[GOVERNMENT]: Except for medicine or religious
materials. I think that’s in the —
THE COURT: I guess if you get a few bucks, is that mate-
rial support? Right out of the statute.
[HAMMOUD’S COUNSEL]: You can throw bibles at
them but not money.
THE COURT: Book of stamps and that’s material. All
right.
Id. at 3257-58. Thus, the district court judge instructed the jury with-
out imposing a scienter requirement despite an implicit understanding
that the "material support" provision potentially criminalizes a broad
sweep of conduct which has no connection to "concededly criminal
activity," and the fact that various aspects of the "material support"
provisions had already been held to violate the First Amendment. See
Humanitarian Law Project II, 205 F.3d at 1137-38 (holding terms
"training" and "personnel" in AEDPA’s "material support" provision
were unconstitutionally vague).
In demonstrating the plain nature of AEDPA’s constitutional defi-
cient mens rea requirement, perhaps it is best to compare that statute
to the Supreme Court’s treatment of the Protection of Children
Against Sexual Exploitation Act, 18 U.S.C. § 2252, which the Court
held was unconstitutional when applied without a scienter require-
ment in X-Citement Video, 513 U.S. at 68-72. See Al-Arian, 308 F.
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Supp. 2d at 1335 (stating that in X-Citement Video, "the Supreme
Court faced almost the same statutory interpretation issues" as those
raised by AEDPA’s material support provision). In X-Citement Video,
the Supreme Court interpreted a statutory provision which criminal-
ized the "knowing" transport, shipment, receipt, distribution or pro-
duction of a "visual depiction involv[ing] the use of a minor engaging
in sexually explicit conduct." 513 U.S. at 68 (citing 18 U.S.C. § 2252)
(internal quotation marks omitted). The Supreme Court rejected the
Ninth Circuit’s interpretation that the "knowing" mens rea element
applied only to the relevant verbs, rather than to the facts that minors
were involved and the material was sexually explicit. See id. at 68-69.
The Court held that the Ninth Circuit’s construction led to absurd
results under the First Amendment. See id. at 69. For example, "a
retail druggist who returns an uninspected roll of developed film to
a customer ‘knowingly distributes’ a visual depiction and would be
criminally liable if it were later discovered that the visual depiction
contained images of children engaged in sexually explicit conduct."
Id. In this manner, the Ninth Circuit’s absurd construction of the stat-
ute in X-Citement Video is closely related to the absurd results, see
supra at 86, which necessarily follow from interpreting AEDPA’s
"material support" provisions without a scienter requirement. Thus,
from the reasoning in X-Citement Video, see 513 U.S. at 70-77, it
should have been apparent to the district court that to avoid such
absurd results in the AEDPA context the jury needed to be instructed
that the specific intent requirement had to be applied to each element
of the statute. For the end result of applying "knowingly" as did the
Ninth Circuit in Humanitarian Law Project III "is to render a substan-
tial portion of Section 2339B unconstitutionally vague." Al-Arian,
308 F. Supp. 2d at 1338.
C.
The failure to require the jury to find what should have been the
elements of the material support offense affected Hammoud’s sub-
stantial rights. By not being instructed on a scienter requirement, the
jury was not presented an essential element of the "material support"
offense, and as the Third Circuit has remarked, "the omission of an
essential element of an offense [in a jury instruction] ordinarily con-
stitutes plain error" satisfying Olano. United States v. Haywood, 363
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F.3d 200, 207 (3d Cir. 2004) (internal quotation marks and citation
omitted). The Tenth Circuit has recognized: "A plainly erroneous jury
instruction affects a defendant’s ‘substantial rights’ if the instruction
concerns a principal element of the defense or an element of the
crime, thus suggesting that the error affected the outcome of the
case." United States v. McSwain, 197 F.3d 472, 481 (10th Cir. 1999)
(internal quotation marks and citation omitted); see also United States
v. Perez, 43 F.3d 1131, 1139 (7th Cir. 1994) (holding that erroneous
jury instruction, which failed to include a "precise description of the
requisite specific intent element," was plain error affecting defen-
dant’s substantial rights such that conviction had to be reversed); cf.
United States v. Wilkinson, 137 F.3d 214, 228 (4th Cir. 1998) (finding
third prong of Olano satisfied where district court failed to give the
jury a conclusive instruction on element of materiality). Indeed, such
practice "is consistent with the Supreme Court’s instruction that due
process ‘requires proof beyond a reasonable doubt of every fact nec-
essary to constitute the crime with which [the defendant] is charged.’"
Haywood, 363 F.3d at 207 (quoting In re Winship, 397 U.S. 358, 364
(1970)) (additional quotation marks and citation omitted). Here, the
plainly erroneous jury instructions did not require the government to
prove that Hammoud’s purported "material support" for Hizballah
went to further the organization’s criminal conduct. As such, the con-
victed offense falls well short of the "personal guilt" and connection
to "concededly criminal activity" which the Fifth Amendment
requires. Scales, 367 U.S. at 224-25.
D.
Turning to Olano’s requirement that the error seriously affected the
fairness, integrity or public reputation of judicial proceedings, I note
that when reviewing an erroneous jury instruction for plain error, "the
relevant inquiry . . . is whether, in light of the evidence presented at
trial, the failure to instruct had a prejudicial impact on the jury’s
deliberations, so that it produced a miscarriage of justice." Haywood,
363 F.3d at 207. As the Seventh Circuit remarked in Perez, where the
defendant carries his Olano burden of showing the erroneous jury
instruction affected his or her substantial rights, "the gravity of such
an error makes reversal the usual outcome." 43 F.3d at 1139 (citing
United States v. Kerley, 838 F.2d 932, 939 (7th Cir. 1988)); see also
United States v. Duran, 133 F.3d 1324, 1334 (10th Cir. 1998) (hold-
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ing plain error in jury instruction that allowed a conviction "where
one important element may not have been found against the defendant
by such a standard cannot be overlooked," and remanding for a new
trial) (citation omitted). The Seventh Circuit reasoned that when a
jury instruction is erroneous because it does not include the requisite
specific intent requirement, "the error affects the integrity of the pro-
ceeding itself." Perez, 43 F.3d at 1140 (citations omitted).
Applying these principles in the instant case, I would find that the
error affected the fairness, reputation and integrity of the judicial pro-
ceedings, thus we should vacate Hammoud’s "material support" con-
viction and remand for a new trial. Had the district court judge
charged the jury with the scienter requirement, it is highly unlikely
that the jury could have convicted Hammoud based on the evidence
offered at trial. Indeed, at the jury charge conference, the district court
judge examined the language of Count 72 of the indictment, which
alleged that Hammoud "used his position as a leader . . . to foster sup-
port and raise funds for violent Hizballah activity," J.A. 482 ¶ 4(a),
and stated: "There was no proof he raised funds for violent Hizballah
activity. I have a problem leaving that in when you don’t have any
proof on that. But it’s part of the indictment. I can’t just take it out."
J.A. 3251 (emphasis added). Accordingly, it is clear that the govern-
ment failed to connect Hammoud to any terrorist activity on the part
of Hizballah, rather it merely associated him with Hizballah, a foreign
terrorist organization.16 This is not a case in which "overwhelming
16It is further worth noting that not only did the government fail to con-
nect Hammoud’s purported $3,500 donation to Sheik Abbas Harake to
any illegal purpose, or concededly criminal act, but the government
could barely connect the funds to Harake to any degree whatsoever. The
government admits that the only source of information indicating that
Hammoud was sending money to Hizballah was Said Harb. Harb was
described throughout the trial as untrustworthy, manipulative, a liar and
an exaggerator. See, e.g., J.A. 1412, 1408, 2215, 2504. With reference to
the alleged $3,500 in "material support" provided to Hizballah, Harb tes-
tified that he had once carried money to Harake for Hammoud. Id. at
2763. He testified that the money he carried was in an envelope which
Hammoud said had two checks totaling $3,500. Id. at 2761-64. Harb tes-
tified that he spoke with Harake by telephone while in Lebanon, but
never met with him and did not deliver money to him. J.A. 2764-66.
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and essentially uncontroverted" evidence exists to support the conclu-
sion that Hammoud supported Hizballah’s illegal, terrorist activities,
Cotton, 535 U.S. at 633, and in light of the lack of such evidence I
would find that Hammoud suffered prejudice.
IV.
For these reasons, I would hold that the jury instruction upon which
Hammoud was convicted of providing material support to Hizballah
violated his Fifth Amendment rights, and Hammoud satisfied Olano’s
"plain error" standard, thus entitling him to a new trial. In recom-
mending as much, I do not seek to give comfort to terrorist organiza-
tions, or to diminish the reality of clear and present threats posed by
such groups. To the contrary, I seek to uphold the Constitution in a
manner that does not harken back to a bleaker era of American history
when characters were impugned, and individuals indicted, convicted
and punished based on little more than suspicion, association and fear,
without the "personal guilt" which is the hallmark of our criminal jus-
tice system. In applying AEDPA’s material support provisions with
the requisite scienter requirement, we may help insure that juries are
not driven to findings of guilt by mere fear of the unknown, but
instead arrive at the just result only after interrogation of the govern-
ment’s case to determine whether criminal intent is present.
I respectfully dissent.
Instead, Harb stated he "g[a]ve it [the envelope] to my mom and, you
know, told her to make sure it gets to [Hammoud’s] mom." Id. at 2765.
Ostensibly, under the government’s theory, Hammoud’s mother gave the
money to Harake, although I have found no testimony in the record com-
pleting this chain that allegedly stretched from Hammoud to Harake.
Indeed, Harb never explained how the money got to Harake, nor did he
state that he even spoke with Hammoud’s mother to make sure she
received the envelope, let alone spoke to Harake to assure that he
received the envelope from Hammoud’s mother. Despite these facts, the
$3,500 transfer was the sole transaction offered by the government in
support of Count 78 against Hammoud.
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