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

10-3916-cr
United States v. Siddiqui
*The Clerk of the Court is respectfully directed to amend the caption to
conform with the above.
**The Honorable Roslynn R. Mauskopf, of the United States District Court
for the Eastern District of New York, sitting by designation.
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2011 8
9
(Argued: February 10, 2012 Decided: November 5, 2012) 10
11
Docket No. 10-3916-cr 12
13
14
UNITED STATES OF AMERICA, 15
16
Appellee, 17
18
–v.– 19
20
AAFIA SIDDIQUI, 21
22
Defendant-Appellant. *
23
24
25
26
Before: 27
WESLEY, CARNEY, Circuit Judges, MAUSKOPF, District Judge. **
28
29
Defendant-Appellant Aafia Siddiqui appeals her criminal 30
convictions, entered after a jury trial in the United States 31
District Court for the Southern District of New York 32
(Berman, J.), for attempted murder of United States 33
nationals, attempted murder of United States officers and 34
employees, armed assault of United States officers and 35
employees, assault of United States officers and employees, 36
and use of a firearm during a crime of violence. She also 37
challenges her sentence of eighty-six years’ imprisonment. 38
Siddiqui contends that the district court erred in a number 39

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

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3
Southern District of New York (Berman, J.) entered on 1
September 23, 2010, convicting her after a jury trial of one 2
count of attempted murder of United States nationals in 3
violation of 18 U.S.C. § 2332(b)(1); one count of attempted 4
murder of United States officers and employees in violation 5
of 18 U.S.C. § 1114(3); one count of armed assault of United 6
States officers and employees in violation of 18 U.S.C. §§ 7
111(a)(1) and (b); one count of using a firearm during a 8
crime of violence in violation of 18 U.S.C. § 924(c); and 9
three counts of assault of United States officers and 10
employees in violation of 18 U.S.C. § 111(a)(1). The 11
district court sentenced her principally to 86 years’ 12
imprisonment. Siddiqui urges this Court to reverse her 13
convictions and, failing that, to vacate her sentence. We 14
address five of the arguments that Siddiqui raises on appeal 15
here and the remaining issues in an accompanying summary 16
order. 17
I. BACKGROUND 18
A. Offense Conduct 19
Around dusk on July 17, 2008, Afghan National Police 20
(“ANP”) detained Aafia Siddiqui, a United States-educated 21
Pakistani national, in Ghazni City, Afghanistan, on 22

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4
suspicion of attempting to attack the Governor of Ghazni. 1
When police took her into custody, Siddiqui possessed, among 2
other things, various documents that discussed the 3
construction of weapons, referenced a “mass casualty 4
attack,” and listed a number of New York City landmarks. 5
Afghan authorities brought Siddiqui to an ANP facility for 6
questioning. Later that evening, the Governor of Ghazni 7
delivered the materials found in Siddiqui’s possession to 8
the United States Army. 9
The following morning, the United States dispatched a 10
team to the ANP facility with the objective of interviewing 11
Siddiqui and ultimately taking her into American custody. 12
The team–most dressed in military fatigues–consisted of two 13
FBI agents and members of a military special forces unit. 14
Afghan officials brought the team to a poorly lit room 15
partitioned by a yellow curtain. The room was crowded with 16
Afghan officials, and unbeknownst to the Americans, Siddiqui 17
was sequestered unrestrained behind the curtain. 18
The presence of a large number of Afghan officials led 19
members of the American team to believe that they had been 20
brought to the room to discuss the terms of their access to 21
Siddiqui. One of the team members, a Chief Warrant Officer, 22

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5
moved to a chair near the curtain dividing the room. After 1
quickly glancing behind the curtain and seeing nothing, he 2
set down his M-4 rifle and turned to engage the Afghan 3
officials in conversation. Moments later, Siddiqui gained 4
control of the rifle, aimed it at members of the American 5
team, shouted, and fired. The team’s interpreter lunged at 6
and struggled with Siddiqui. As the interpreter wrestled 7
with her, the Chief Warrant Officer drew his sidearm and 8
shot Siddiqui in the stomach. 9
Team members then attempted to restrain Siddiqui, who 10
was fiercely resisting and screaming anti-American 11
statements. One witness recalled Siddiqui stating, “I am 12
going to kill all you Americans. You are going to die by my 13
blood.” Another recounted that Siddiqui yelled “death to 14
America” and “I will kill all you motherfuckers.” 15
Eventually, the Americans were able to subdue Siddiqui 16
enough to begin to render emergency medical aid to her. 17
After providing preliminary treatment at the scene, the 18
Americans transported her to a number of military bases in 19
Afghanistan to undergo surgery and receive further care. On 20
July 19, 2008, American forces moved Siddiqui to Bagram 21
Airfield to recuperate. 22

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6
While recovering at Bagram, Siddiqui was guarded by an 1
FBI team. She was tethered to her hospital bed in soft 2
restraints. During the course of her stay at Bagram, 3
Siddiqui provided a number of incriminating, un-Mirandized 4
statements to two members of the security team. In 5
particular, she (1) asked about the penalty for attempted 6
murder; (2) stated that she had a number of documents in her 7
possession at the time of her arrest and recognized some of 8
them when shown to her; (3) said that she had picked up a 9
rifle with the intention of scaring the American team and 10
escaping; and (4) noted that “spewing” bullets at Americans 11
was a bad thing. 12
The government filed a sealed criminal complaint 13
against Siddiqui in the Southern District of New York on 14
July 31, 2008. On August 4, 2008, the government 15
transferred Siddiqui to the United States for prosecution. 16
A month later, Siddiqui was indicted. 17
B. Pre-Trial 18
Soon after the indictment was filed, the district court 19
ordered that Siddiqui undergo psychiatric evaluations of her 20
competence to stand trial. In a report issued on November 21
6, 2008, Dr. Leslie Powers opined that Siddiqui was not 22

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1The certification was filed on the same day as the indictment.
7
currently competent, citing, among other things, Siddiqui’s 1
reports of visual hallucinations. Later, Dr. Powers revised 2
her assessment, finding that Siddiqui was malingering to 3
avoid prosecution. Other experts arrived at the same 4
conclusion, although one expert commissioned by the defense 5
opined that Siddiqui was not competent. The district court 6
held a competency hearing on July 6, 2009. After canvassing 7
the relevant evidence, the court found Siddiqui competent to 8
stand trial. 9
In advance of trial, the district court ruled on a 10
number of motions, some of which are relevant here. 11
Siddiqui first moved to dismiss all of the counts of the 12
indictment. As to Count One, Siddiqui claimed that the 13
Attorney General failed to timely issue the required written 14
certification that her offense (attempted murder of United 15
States nationals) “was intended to coerce, intimidate, or 16
retaliate against a government or a civilian population.” 1
17
18 U.S.C. § 2332(d). Siddiqui also contended that Counts 18
Two through Seven, charging violations of 18 U.S.C. §§ 1114, 19
111, and 924(c), should be dismissed because the statutes do 20
not have extraterritorial application under the 21

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8
circumstances of her case. The district court denied 1
Siddiqui’s motions. 2
The district court also considered the government’s 3
motion in limine to admit certain documents and other 4
evidence recovered from Siddiqui at the time of her arrest 5
by Afghan officials. These documents, some of which were in 6
Siddiqui’s handwriting and bore her fingerprints, referred 7
to attacks on the United States and the construction of 8
various weapons. The court found this evidence admissible 9
pursuant to Federal Rule of Evidence 404(b) to show 10
Siddiqui’s “motive, intent, identity, and knowledge.” In 11
finding the documents admissible, the court rejected the 12
argument that the evidence would cause Siddiqui unfair 13
prejudice, concluding that the documents were no more 14
sensational than the crimes charged. The court also noted 15
that it would instruct the jury that the documents were not 16
to be considered as propensity evidence. 17
C. Trial 18
At trial, the government presented six members of the 19
American interview team who testified that Siddiqui gained 20
control of the Chief Warrant Officer’s rifle and fired at 21
them. Three more witnesses who did not directly observe the 22

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2The district court gave a limiting instruction to the jury, informing
them that they could not consider the documents as proof that Siddiqui was
predisposed to commit the crimes charged. The district court made clear that
the documents could only be considered to the extent they demonstrated
Siddiqui’s motive, intent, or knowledge.
9
shooting testified that they heard M-4 rifle shots. A 1
government expert testified that the fact that no gunpowder 2
residue was found on the curtain hanging in the room did not 3
necessarily indicate that an M-4 had not been fired because 4
someone standing between the curtain and the weapon could 5
have absorbed the residue. The government also introduced 6
the 404(b) documents discussed above. 2
7
The defense put forth a forensic metallurgist who, 8
based on the lack of forensic evidence of a discharge of a 9
M-4 rifle at the crime scene, testified that he did not 10
believe an M-4 had been fired in the room. In particular, 11
he found it implausible that someone could discharge an M-4 12
rifle in a room without bullet fragments or gunpowder 13
residue being recovered by authorities. The defense also 14
introduced deposition testimony of an ANP officer that when 15
Siddiqui was arrested she possessed documents describing how 16
to make explosive devices, among other things, and that 17
while in Afghani custody she made anti-American statements 18
and asked not be turned over to the United States. He also 19

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3The government elicited admissions from the officer that he previously
gave inconsistent statements to American investigators.
4Defense counsel viewed this as a disastrous decision, and went so far
as to make an application to the court to prevent Siddiqui from testifying.
In their view, Siddiqui suffered from diminished capacity, such that she did
not appreciate the risks inherent in testifying. Further, based on previous
outbursts during the proceedings, they feared that Siddiqui would “turn the
[trial] into a spectacle,” thus alienating the jury and damaging her prospects
for acquittal. Prior to Siddiqui’s testimony, the defense held an ex parte
conference with the judge where they aired their concerns. The judge then
opened the courtroom to the public, and Siddiqui indicated on the record that
she understood (1) that testifying was a significant decision, and one that
her counsel had unanimously recommended against; (2) that her testimony had to
be relevant; (3) that if she veered off into tangential topics the court may
stop her testimony; and (4) that by testifying she would be subject to an
intense cross-examination aimed at undercutting her testimony.
10
stated that he saw an American soldier walk behind the 1
curtain prior to hearing shots fired, although he did not 2
directly observe the shooting. 3 Significantly, the officer 3
testified that he observed a technician remove two rifle 4
shells from the scene. 5
Against the advice and over the objection of her 6
attorneys, Siddiqui took the stand to testify in her own 7
defense. 4 Though her testimony at times lacked focus, she 8
was able to provide her version of the events that 9
transpired on July 18, 2008. According to Siddiqui, she was 10
sitting behind a curtain in a room at the ANP facility when 11
she heard American voices. She feared being taken into 12
American custody and peeked through an opening in the 13
curtain with the hope of finding an escape route. Siddiqui 14
testified that she was then shot from multiple directions. 15

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5The court conducted this voluntariness inquiry prior to admitting
Siddiqui’s testimony, and the government asked Siddiqui about her statements
during its cross-examination in an attempt to impeach her. On cross-
examination, she denied she made the statements.
11
She stated that she never picked up, aimed, or fired an M-4 1
rifle at the Americans. 2
Siddiqui claimed that she could not confirm that she 3
possessed documents at the time of her arrest in Afghanistan 4
because she was “in a daze.” JA 2371. She stated that the 5
bag in which the documents were found was not hers but 6
rather was given to her. When confronted with the document 7
referencing mass casualty attacks and listing New York City 8
landmarks, Siddiqui testified that it was a “possibility” 9
that the document was in her own handwriting. JA 2372. 10
After the defense rested, the government presented its 11
rebuttal case. Two FBI agents who were members of 12
Siddiqui’s security detail during her recovery at Bagram 13
recounted several incriminating statements that Siddiqui 14
made to them. Before receiving this testimony, the district 15
court held a hearing to determine whether Siddiqui gave 16
these un-Mirandized statements voluntarily. 5 At that 17
hearing, the two FBI agents testified, as did Siddiqui. The 18
district court determined that Siddiqui’s statements were 19
voluntary. 20

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12
On February 3, 2010, the jury returned a guilty verdict 1
on all counts of the indictment. The district court 2
sentenced Siddiqui on September 23, 2010. In addition to a 3
number of other enhancements, the court applied the 4
terrorism enhancement pursuant to U.S.S.G. § 3A1.4. In 5
applying the enhancement, the court found that Siddiqui’s 6
offense was calculated to influence the conduct of the 7
government by intimidation, namely, attempting to frustrate 8
the interview team’s efforts to detain her. Further, based 9
on a number of anti-American statements Siddiqui made before 10
and at the time of the shooting, the court determined that 11
Siddiqui’s conduct was calculated to retaliate against the 12
United States government. The district court sentenced 13
Siddiqui principally to 86 years’ imprisonment and five 14
years of supervised release. 15
Siddiqui timely appealed her convictions and sentence. 16
II. DISCUSSION 17
A. Denial of Siddiqui’s Motion to Dismiss the Indictment 18
Siddiqui raised below, and now reasserts, several 19
challenges to the indictment. According to Siddiqui, the 20
district court should have dismissed Count One, which 21
charged a violation of 18 U.S.C. § 2332, because the United 22

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13
States Attorney General did not timely issue the 1
certification required by 18 U.S.C. § 2332(d). She also 2
argues that the remaining counts are deficient because the 3
underlying statutes do not apply extraterritorially in an 4
active theater of war. We disagree. 5
Section 2332(d) provides that “[n]o prosecution for any 6
offense described in this section shall be undertaken by the 7
United States except on written certification of the 8
Attorney General . . . [that] such offense was intended to 9
coerce, intimidate, or retaliate against a government or 10
civilian population.” Siddiqui relies on speedy trial 11
principles to conclude that a prosecution is commenced at 12
the time of arrest or the filing of formal charges. But 13
Siddiqui’s argument here encounters an obstacle: the 14
original complaint on which Siddiqui was arrested did not 15
charge a violation of § 2332. The first instrument to do so 16
was the indictment, which was filed the same day the 17
Attorney General issued the § 2332(d) certification. 18
Siddiqui has an answer to the problem. She points out 19
that the statute requires certification prior to a 20
prosecution for an “offense described in this section.” 18 21
U.S.C. § 2332(d) (emphasis added). In her view, the 22

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14
Attorney General is required to issue the certification 1
before an accusatory instrument describing facts that could 2
constitute a violation of § 2332 is filed, regardless of 3
whether that instrument actually charges a violation of 4
§ 2332. Siddiqui reasons that because the criminal 5
complaint filed on July 31, 2008 described conduct 6
proscribed by § 2332, the Attorney General’s certification 7
filed the day of the indictment was untimely. 8
Siddiqui’s argument offers an unusual reading of what 9
appears to be straightforward statutory language—a reading 10
that would undercut the very purpose of the provision. 11
Section 2332(d)’s requirement that the Attorney General 12
issue a certification before “prosecution for any offense 13
described in [§ 2332] shall be undertaken” is most naturally 14
read as a requirement that the Attorney General issue the 15
certification either at the time of or before the filing of 16
the first instrument charging a violation of § 2332. This 17
view furthers the purpose of § 2332(d)—namely, ensuring that 18
the statute reaches only terrorist violence inflicted upon 19
United States nationals, not “[s]imple barroom brawls or 20
normal street crime.” See H.R. Conf. Rep. 99-783, at 87, 21
reprinted in 1986 U.S.C.C.A.N. 1926, 1960. 22

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618 U.S.C. § 1114 prohibits the murder or attempted murder of any United
States officer or employee while such officer or employee is engaged in, or on
account of, his or her official duties.
718 U.S.C. § 111 punishes those who assault, resist, oppose, impede,
intimidate, or interfere with a United States officer or employee while he or
she is engaged in, or on account of, his or her official duties.
818 U.S.C. § 924(c) prohibits the use of a firearm during the commission
of a crime of violence.
15
Under Siddiqui’s interpretation of the provision, the 1
Attorney General would have to issue the certification any 2
time someone engaged in conduct that could be covered by the 3
statute. This would deprive the Attorney General of the 4
opportunity to sort through the facts of each case to 5
determine if it merited certification—and prosecution—under 6
the statute. More simply put, Siddiqui’s interpretation 7
would undercut § 2332(d)’s primary objective. Accordingly, 8
the district court did not err in denying Siddiqui’s motion 9
to dismiss Count One of the indictment. 10
Siddiqui next contends that Counts Two through Seven of 11
the indictment should be dismissed because the charging 12
statutes—18 U.S.C. §§ 1114, 6 111, 7 and 924(c) 8—do not have 13
application extraterritorially “in an active theater of 14
war.” This argument is without merit. 15
“Congress has the authority to ‘enforce its laws beyond 16
the territorial boundaries of the United States.’” United 17
States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (quoting 18

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16
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). The 1
ordinary presumption that laws do not apply 2
extraterritorially has no application to criminal statutes. 3
United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 4
2011). “When the text of a criminal statute is silent, 5
Congressional intent to apply the statute extraterritorially 6
must ‘be inferred from the nature of the offense.’” Id. 7
(quoting United States v. Bowman, 260 U.S. 94, 98 (1922)). 8
The statutes underlying Counts Two through Seven apply 9
extraterritorially. Subsequent to the filing of Siddiqui’s 10
brief, we held that 18 U.S.C. § 1114 applies 11
extraterritorially. Al Kassar, 660 F.3d at 118. We 12
reasoned that “the nature of the offense–protecting U.S. 13
personnel from harm when acting in their official 14
capacity–implies an intent that [the statute] apply outside 15
of the United States.” Id. We see no basis for expecting 16
Congress to have intended to limit these protections to U.S. 17
personnel acting within the United States only. For the 18
same reason, § 111 applies extraterritorially. See United 19
States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir. 1984); 20
see also United States v. Hasan, 747 F. Supp. 2d 642, 685-86 21
(E.D. Va. 2010). Like 18 U.S.C. § 1114, the nature of the 22

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9Indeed, this argument is premised on a misreading of a number of cases.
Siddiqui contends that international law “allow[s] an occupying force to try
unlawful belligerents only in a military commission,” see Siddiqui Br. 66, and
thus extraterritorial application of the statutes at issue would run afoul of
the general presumption that Congress intends its statutes to comport with
international law. But the portion of Ex parte Quirin, 317 U.S. 1, 30 (1942),
that Siddiqui cites merely stands for the more pedestrian observation that
unlawful combatants, unlike lawful combatants, may be subjected to trial
before a military commission. Moreover, the case Siddiqui cites for the
proposition that “[a]t least one court has expressed reservation about
17
offense–protecting United States officers and employees 1
engaged in official duties from harm–implies a Congressional 2
intent that § 111 apply outside of the United States. See 3
Al Kassar, 660 F.3d at 118. 4
As for § 924, which criminalizes the use of a firearm 5
during commission of a crime of violence, every federal 6
court that has considered the issue has given the statute 7
extraterritorial application where, as here, the underlying 8
substantive criminal statutes apply extraterritorially. 9
See, e.g., United States v. Belfast, 611 F.3d 783, 815 (11th 10
Cir. 2010); United States v. Ahmed, No. 10 Cr. 131 (PKC), 11
2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012); United 12
States v. Mardirossian, 818 F. Supp. 2d 775, 776-77 13
(S.D.N.Y. 2011). We see no reason to quarrel with their 14
conclusions. 15
Siddiqui’s argument that the statutes, even if 16
generally extraterritorial, do not apply “in an active 17
theater of war” is unpersuasive. 9 As the government points 18

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extending the extraterritorial reach of § 1114 into Afghanistan because of the
sensitive state of the relationship between the two nations,” see Siddiqui Br.
65-66, does not mention § 1114 at all. Instead, the case addressed whether
federal courts had jurisdiction to afford habeas corpus relief and the
protection of the Suspension Clause to aliens held in Executive detention at
Bagram Airfield. Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010).
18
out, it would be incongruous to conclude that statutes aimed 1
at protecting United States officers and employees do not 2
apply in areas of conflict where large numbers of officers 3
and employees operate. The district court appropriately 4
denied Siddiqui’s motion to dismiss Counts Two through Seven 5
of the Indictment. 6
B. Admission of Documents under Federal Rule of Evidence 7
404(b) 8
9
The district court admitted documents allegedly found 10
in Siddiqui’s possession that explained the construction and 11
use of various weapons and described a “mass casualty 12
attack” on a number of New York City landmarks for the 13
purpose of demonstrating Siddiqui’s knowledge, motive, and 14
intent. Siddiqui argues that her defense–that she never 15
picked up and fired the Chief Warrant Officer’s 16
rifle–removed those issues from the case and thus admission 17
of the documents was improper. 18
A district court’s evidentiary rulings encounter 19
trouble on appeal only where the district court abuses its 20
discretion. United States v. Mercado, 573 F.3d 138, 141 (2d 21

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10Of course, the strictures of Federal Rules of Evidence 401, 402, and
403 still apply to Rule 404(b) evidence. The evidence must be relevant to an
issue in dispute, and its probative value must outweigh the risk of unfair
prejudice. See United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989).
19
Cir. 2009). A district court abuses its discretion when 1
its evidentiary rulings are “arbitrary and irrational.” Id. 2
But even when an evidentiary ruling is “manifestly 3
erroneous,” the defendant will not receive a new trial if 4
admission of the evidence was harmless. Cameron v. City of 5
New York, 598 F.3d 50, 61 (2d Cir. 2010). 6
Federal Rule of Evidence 404(b) provides that evidence 7
of a defendant’s prior crimes, wrongs, or other acts cannot 8
be used to prove that a defendant was a bad fellow and most 9
likely remains one–that he has a criminal nature or 10
propensity and the acts in question are consistent with his 11
nature or tendency towards crime. However, this type of 12
evidence may be admissible for other legitimate purposes, 13
such as demonstrating motive, opportunity, identity, intent, 14
and knowledge. Id. Under our “inclusionary” approach, all 15
“other act” evidence is generally admissible unless it 16
serves the sole purpose of showing a defendant’s bad 17
character. United States v. Curley, 639 F.3d 50, 56 (2d 18
Cir. 2011). 10
19
20

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20
A defendant may, however, forestall the admission of 1
Rule 404(b) evidence by advancing a theory that makes clear 2
that the object the 404(b) evidence seeks to establish, 3
while technically at issue, is not really in dispute. See 4
United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). 5
For example, a defense theory that the defendant did not 6
commit the charged act effectively removes issues of intent 7
and knowledge from the case. See id at 657; United States 8
v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988). Siddiqui’s 9
defense was just that–“I didn’t fire the M-4.” 10
But even assuming that Siddiqui’s defense theory 11
effectively removed any issue of her intent or knowledge, 12
the documentary evidence remained relevant to demonstrate 13
Siddiqui’s motive. Motive has been variously defined as 14
“the reason that nudges the will and prods the mind to 15
indulge the criminal intent,” United States v. Benton, 637 16
F.2d 1052, 1056 (5th Cir. 1981) (internal quotation marks 17
omitted); “the rationale for an actor’s particular conduct,” 18
United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010); and 19
“an emotion or state of mind that prompts a person to act in 20
a particular way,” Charles Alan Wright and Kenneth W. 21
Graham, Jr., Federal Practice and Procedure: Federal Rules 22

-- 20 of 42 --

21
of Evidence § 5240. “Although it does not bear directly on 1
the charged elements of a crime, evidence offered to prove 2
motive is commonly admitted.” United States v. Salameh, 152 3
F.3d 88, 111 (2d Cir. 1998). And unlike issues of knowledge 4
and intent, the defendant’s motive–an explanation of why the 5
defendant would engage in the charged conduct–becomes highly 6
relevant when the defendant argues that he did not commit 7
the crime. 8
For instance, in Salameh, the defendants were charged 9
with a conspiracy to bomb the World Trade Center. Id. at 10
108. The district court admitted documents possessed by the 11
defendants that “bristled with strong anti-American 12
sentiment.” Id. at 111. On appeal, we found those 13
documents admissible to demonstrate the conspiracy’s motive. 14
Id. 15
Here, the documents the government introduced pursuant 16
to Rule 404(b) detail, among other things, the construction 17
of fertilizer and plastic explosives. One document in 18
particular discusses radioactive bombs, biological weapons, 19
and chemical weapons. That document also contains the 20
phrase “mass casualty attack” and lists a number of New York 21
City landmarks, including Grand Central Terminal, the Empire 22

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11In her brief, Siddiqui appears to contend that the government was
required to call Afghan witnesses who were present at Siddiqui’s arrest to
confirm this fact. We disagree. There was more than sufficient evidence to
establish that the documents were in Siddiqui’s possession at the time of her
arrest. Some were in her handwriting, and some bore her fingerprints.
Moreover, on the day of her arrest, Afghan officials delivered the documents
to American military authorities, which also tends to corroborate that
Siddiqui possessed the documents when arrested by Afghan authorities.
12Although Siddiqui often characterizes the admitted documents as
“adverse and prejudicial,” “incendiary,” and “powerful, prejudicial, and
damning,” she never argues in her briefs that the evidence should have been
excluded under Federal Rule of Evidence 403 on a theory that its probative
value is substantially outweighed by a danger of unfair prejudice. As such,
the argument is waived. See Tolbert v. Queens College, 242 F.3d 58, 76 (2d
Cir. 2001); see also Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1996),
vacated on other grounds by, 521 U.S. 1114 (1997).
22
State Building, the Statute of Liberty, and the Brooklyn 1
Bridge. Taken together, these documents, which were in 2
Siddiqui’s possession at the time Afghan officials took her 3
into custody 11 and some of which were in her handwriting, 4
supply a plausible rationale for why Siddiqui would fire a 5
rifle at the American interview team, namely, she harbored 6
an anti-American animus. This motive was relevant to the 7
ultimate issue in dispute at trial–whether Siddiqui picked 8
up and fired the M-4 rifle at the American interview team. 9
Accordingly, the district court did not abuse its discretion 10
in admitting the documents pursuant to Rule 404(b). 12
11
But even if we agreed with Siddiqui that the district 12
court abused its discretion in admitting the documents, that 13
would not end the matter. There would remain the question 14

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23
of whether the error was harmless. An evidentiary error is 1
harmless “if the appellate court can conclude with fair 2
assurance that the evidence did not substantially influence 3
the jury.” United States v. Cadet, 664 F.3d 27, 32 (2d Cir. 4
2011) (internal quotation marks omitted). Several factors 5
bear on the inquiry: whether the evidence was tied to “an 6
issue that [was] plainly critical to the jury’s decision”; 7
“whether that [evidence] was material to the establishment 8
of the critical fact or whether it was instead 9
corroborat[ive] and cumulative”; and “whether the wrongly 10
admitted evidence was emphasized in arguments to the jury.” 11
Curley, 639 F.3d at 58 (internal quotation marks omitted). 12
But the most critical factor is “the strength of the 13
government’s case.” Id. (internal quotation marks omitted). 14
Here, although the government by its own admission 15
“repeatedly referenced the documents introduced at trial,” 16
Government Br. 37, the jury also had ample testimony before 17
it regarding anti-American statements Siddiqui made at the 18
time of the shooting from which it could conclude that 19
Siddiqui harbored an animus towards the United States. And 20
most importantly, the strength of the government’s case was 21
overwhelming. Among other evidence, six members of the 22

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24
American interview team testified that Siddiqui gained 1
control of the Chief Warrant Officer’s rifle and fired at 2
them. Another three government witnesses who did not 3
observe the shooting testified that they heard M-4 rifle 4
shots. Moreover, after Siddiqui testified, the government 5
introduced the testimony of two FBI agents who had 6
interviewed Siddiqui. According to those agents, Siddiqui, 7
among other things, (1) asked what the penalty for attempted 8
murder was; and (2) noted that “spewing” bullets at 9
Americans was a bad thing. 10
Siddiqui counters that her forensic expert’s opinion 11
that an M-4 rifle had not been fired in the room effectively 12
neutralized the government’s case against her. However, 13
this forensic expert’s testimony was undermined by one of 14
Siddiqui’s own witnesses, who testified that two rifle 15
shells were recovered from the room, and by a government 16
expert’s testimony that the absence of certain forensic 17
evidence from the room was not necessarily inconsistent with 18
the firing of a weapon. 19
Siddiqui also asserts that our decision in United 20
States v. Colon, 880 F.2d 650 (2d Cir. 1989), requires us to 21
grant her a new trial. She argues that Colon mandates that 22

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25
we assess the strength of the government’s case without 1
reference to the government’s cross-examination of Siddiqui 2
or the incriminating statements she made at Bagram and that 3
Colon requires a new trial because the admission of the 4
documents forced her to testify and she was harmed by doing 5
so. We disagree. 6
In Colon, the defendant was charged with heroin 7
distribution. Id. at 652. His defense was that he did not 8
engage in the charged act. Id. at 658. Nevertheless, the 9
district court admitted evidence concerning two prior 10
instances in which the defendant had sold heroin to 11
demonstrate knowledge and intent–an obvious error. Id. at 12
656. The defendant then testified, and, in the words of his 13
counsel, "the [Assistant] U.S. Attorney made a jackass out 14
of him." Id. at 661 (brackets in original). Specifically, 15
the cross-examination cast doubt on the defendant's 16
credibility and delved deeply into the circumstances 17
surrounding the defendant's prior involvement with heroin. 18
Id. Because the record in Colon demonstrated that the 19
defendant's case was badly damaged by the erroneous 20
admission of the evidence, and because the defense may have 21
felt that there was no alternative but to have the defendant 22

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26
testify as a result, we granted the defendant a new trial. 1
See id. at 661-62. 2
Here, we need not resolve the issue of whether Colon 3
necessitates that we measure the strength of the 4
Government’s case without reference to either Siddiqui’s 5
cross-examination or the admission of the incriminating 6
statements she made at Bagram. Even without that evidence, 7
the government’s case against Siddiqui can only be fairly 8
characterized as devastating. 9
We also disagree with Siddiqui’s claim that Colon 10
requires a new trial because the admission of the 404(b) 11
evidence forced her to testify and her defense was badly 12
damaged by that testimony. Unlike in Colon, the 13
introduction of the 404(b) evidence here did not necessitate 14
Siddiqui’s testimony from an objective, strategic 15
standpoint. The 404(b) evidence was somewhat cumulative on 16
the issue of whether Siddiqui harbored an anti-American 17
animus, given that numerous witnesses testified as part of 18
the government’s case-in-chief that she made anti-American 19
statements during the shooting incident. Further, even 20
after the introduction of the 404(b) evidence, defense 21
counsel advised Siddiqui not to testify, we presume in large 22

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27
part because her testimony would open the door to the 1
admission of the incriminating statements she made while 2
recovering at Bagram. Colon does not allow a defendant to 3
make an otherwise harmless error harmful based on her simple 4
assertion that the error compelled her to testify. 5
C. Denial of Defense Counsel’s Application to Keep Siddiqui 6
from Testifying 7
8
It is well established that criminal defendants have 9
the right to testify in their own defense. Rock v. 10
Arkansas, 483 U.S. 44, 49 (1987); see Brown v. Artuz, 124 11
F.3d 73, 76 (2d Cir. 1997). “This right . . . is . . . 12
essential to due process of law in a fair adversary 13
process.” Bennett v. United States, 663 F.3d 71, 84 (2d 14
Cir. 2011) (internal quotation marks omitted). That is 15
because “the most important witness for the defense in many 16
criminal cases is the defendant himself,” and he has the 17
“right to present his own version of events in his own 18
words.” Rock, 483 U.S. at 52. The ultimate decision to 19
testify remains at all times with the defendant; defense 20
counsel, though charged with an obligation to apprise the 21
defendant of the benefits and risks of testifying, cannot 22
make the decision, regardless of tactical considerations. 23
Brown, 124 F.3d at 77-78. 24

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28
Siddiqui’s counsel does not challenge these clearly 1
established principles. Instead, she urges us to craft an 2
exception to the general rule, arguing that in some cases a 3
defendant may be competent to stand trial yet incompetent to 4
exercise her right to testify without the approval of 5
defense counsel. 6
In support of her argument, counsel relies heavily on 7
the Supreme Court’s decision in Indiana v. Edwards, 554 U.S. 8
164 (2008). There, the Court held that a state may 9
determine that a defendant who is competent to stand trial 10
may nonetheless be incapable of representing himself at 11
trial and may thus insist that the defendant have trial 12
counsel. Id. at 167. The Court noted that a mentally ill 13
defendant may not possess the ability to execute tasks such 14
as organizing a defense, arguing points of law, and 15
questioning witnesses. Id. at 176-77. It further observed 16
that a prolonged spectacle could result from such a 17
defendant representing himself, and that spectacle would 18
undercut the Constitution’s goal of providing a fair trial. 19
Id. at 177. 20
Counsel’s reliance on Edwards is misplaced. First, as 21
three other circuits have recognized, Edwards holds that a 22

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29
court may require that trial counsel appear on behalf of a 1
mentally ill defendant, not that it must do so. See United 2
States v. Turner, 644 F.3d 713, 724 (8th Cir. 2011); United 3
States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); United 4
States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009). 5
But even if Edwards mandated trial courts to require trial 6
counsel for a discrete group of mentally ill defendants, the 7
case still would have no application here. Common sense 8
dictates that the mental capacity needed to conduct an 9
entire trial is much greater than the mental capacity 10
required to play the more limited role of witness on one’s 11
own behalf. Moreover, the defendant’s right to air her 12
version of events before a jury is “more fundamental to a 13
personal defense than the right of self-representation.” 14
Rock, 483 U.S. at 52. As such, Edwards does not 15
significantly support, let alone compel, the conclusion that 16
a district court may prevent a mentally ill defendant from 17
testifying on her own behalf if defense counsel moves to 18
keep the defendant off the stand. 19
We question whether the Constitution permits a finding 20
that a criminal defendant is competent to stand trial, yet 21
incompetent to determine whether to testify on her own 22

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30
behalf. But we need not decide that question today. Here, 1
the district court went to extraordinary lengths to ensure 2
that Siddiqui understood the implications of testifying and 3
had the capacity to testify. Even were we to discern any 4
daylight between the standards governing a defendant's 5
capacity to stand trial and those for assessing her capacity 6
to determine whether to testify (and then, actually to 7
testify), we would find no reason to upset the district 8
court's implicit determination that Siddiqui did in fact 9
have the requisite capacity to make the latter decision 10
here. That Siddiqui's choice to testify—like many 11
defendants' decisions to testify—was a poor one, does not 12
alter our analysis. See Brown, 124 F.3d at 77-78. 13
D. Voluntariness of Siddiqui’s un-Mirandized statements at 14
Bagram 15
16
Siddiqui contends that the district court erred in 17
finding that the incriminating, un-Mirandized statements she 18
gave to two members of the FBI security team while she was 19
hospitalized at Bagram Airfield were voluntary and thus 20
could be used in the government’s rebuttal case after 21
Siddiqui testified. Prior to Siddiqui’s testimony, the 22
court held a hearing to determine the voluntariness of the 23
statements. At that hearing, the two FBI agents testified, 24

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13These soft restraints, made of terry cloth and cotton, provided
Siddiqui a fair range of mobility. In fact, the restraints provided such
mobility that Siddiqui was able to remove them. After Siddiqui removed the
restraints, the agents positioned the straps such that it was impossible to
remove the strap on one hand with the other. The restraints were loose enough
to allow her to read, drink, and wash, and were removed when Siddiqui required
use of the washroom.
31
and the district court’s ruling credited their testimony. 1
Their testimony established the following. 2
During the course of her stay at Bagram, Siddiqui was 3
tethered to her bed in soft restraints to prevent her 4
escape. 13 The agents endeavored to meet Siddiqui’s needs as 5
best they could and never denied her access to the restroom, 6
food, water, or medical attention. Further, Siddiqui had 7
access to a medical call button that allowed her to contact 8
the hospital’s medical staff directly; therefore, she was 9
not entirely dependent on the agents to meet her basic 10
needs. Although Siddiqui was at times in pain and 11
medicated, she was coherent, lucid, and able to carry on a 12
conversation. 13
Special Agent Angela Sercer spent the most time with 14
Siddiqui. She would arrive in the morning and stay 15
approximately eight hours in Siddiqui’s room. Upon 16
arriving, she would ask Siddiqui if she wanted to talk; if 17
Siddiqui indicated she did not, Sercer would remain quietly 18
in the room as a member of Siddiqui’s security detail. 19

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32
Although the topic of the July 18th shooting did come up, 1
Sercer’s primary objective was to gather intelligence 2
related to another investigation of Siddiqui commenced years 3
earlier. Siddiqui was generally receptive to speaking with 4
Sercer and indicated that she enjoyed their discussions. 5
Special Agent Bruce Kamerman spent significantly less time 6
with Siddiqui. Although he was not initially tasked with 7
interviewing Siddiqui, supervisors instructed Kamerman to 8
“continue the dialog” when Siddiqui made unsolicited 9
incriminating statements to him. Siddiqui never indicated 10
to Kamerman that she was unwilling to talk. Neither agent 11
gave Siddiqui Miranda warnings. 12
Statements taken from a defendant in violation of 13
Miranda may not be introduced by the government during its 14
case in chief. United States v. Douglas, 525 F.3d 225, 248 15
(2d Cir. 2008). But because a defendant “must testify 16
truthfully or suffer the consequences,” the government may 17
introduce un-Mirandized statements to impeach the 18
defendant’s testimony. Id. (internal quotation marks 19
omitted). The government cannot, however, introduce a 20
defendant’s involuntary statements. See, e.g., Mincey v. 21
Arizona, 437 U.S. 385, 397-98 (1978); see also United States 22

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33
v. Khalil, 214 F.3d 111, 121-22 (2d Cir. 2000). Because 1
Siddiqui testified at trial, the government was free to 2
introduce the statements she made at Bagram Airfield so long 3
as those statements were voluntary. 4
The government bears the burden of demonstrating that 5
the defendant’s statements were voluntary. See United 6
States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); United 7
States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). To 8
determine whether a defendant’s statements were made 9
voluntarily, courts look to the totality of the 10
circumstances surrounding the statements. Anderson, 929 11
F.2d at 99. “Relevant factors . . . include the accused’s 12
age, his lack of education or low intelligence, the failure 13
to give Miranda warnings, the length of detention, the 14
nature of the interrogation, and any use of physical 15
punishment.” Campaneria v. Reid, 891 F.2d 1014, 1020 (2d 16
Cir. 1989). A defendant’s mental vulnerability also bears 17
on the analysis. See Colorado v. Connelly, 479 U.S. 157, 18
164 (1986). 19
A number of decisions have assessed the voluntariness 20
of a defendant’s statements where the defendant was in 21
medical distress. For example, in Mincy, 437 U.S. at 398- 22

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34
400, the Supreme Court held that a defendant’s statements to 1
police were involuntary where the defendant (1) arrived at 2
the hospital a few hours before the interrogation “depressed 3
almost to the point of coma”; (2) suffered “unbearable” 4
pain; (3) was unable to think coherently; (4) was 5
“encumbered by tubes, needles, and [a] breathing apparatus”; 6
(5) expressed his desire that the interrogation cease 7
numerous times to no avail; and (6) was falling in and out 8
of consciousness. By contrast, courts tend to view a 9
hospitalized defendant’s statements as voluntary where the 10
defendant was lucid and police conduct was not overbearing. 11
See Khalil, 214 F.3d at 121-22; Pagan v. Keane, 984 F.2d 61, 12
63 (2d Cir. 1993); Campaneria, 891 F.2d at 1019-20. 13
We review the factual findings underpinning the 14
district court’s voluntariness determination for clear error 15
while subjecting the ultimate conclusion that a defendant’s 16
statements were voluntarily to de novo review. See Khalil, 17
214 F.3d at 122; see also United States v. Pettigrew, 468 18
F.3d 626, 633 (10th Cir. 2006); United States v. Bell, 367 19
F.3d 452, 460-61 (5th Cir. 2004). Doing so, we find no 20
error in the district court’s determination that Siddiqui’s 21
statements were voluntary. Although no Miranda warnings 22

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35
were given and Siddiqui was kept in soft restraints for the 1
duration of her hospital stay, the agents’ conduct was not 2
overbearing or abusive. To the contrary, the agents 3
endeavored to meet her basic needs. Siddiqui conversed 4
freely with the agents, and when she indicated that she did 5
not want to engage in conversation, Special Agent Sercer sat 6
quietly in her room. Further, Siddiqui is highly educated, 7
having earned her undergraduate degree from Massachusetts 8
Institute of Technology and a doctorate from Brandeis 9
University. Most importantly, just as in Khalil, Pagan, and 10
Campaneria, Siddiqui was lucid and able to engage the agents 11
in coherent conversation despite the pain attendant to her 12
injury. 13
Thus, the district court did not err in allowing the 14
government to introduce the statements Siddiqui made while 15
recuperating at Bagram Airfield to rebut her trial 16
testimony. 17
E. Application of the Terrorism Enhancement to Siddiqui’s 18
Sentence 19
20
Finally, we address Siddiqui’s challenge to the 21
district court’s application of the terrorism enhancement 22
under U.S.S.G. § 3A1.4. The enhancement increases by twelve 23
the defendant’s offense level and elevates the defendant’s 24

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36
criminal history category to category six if the defendant’s 1
offense “is a felony that involved, or was intended to 2
promote, a federal crime of terrorism.” Id. A “federal 3
crime of terrorism” is an offense that “is calculated to 4
influence or affect the conduct of government by 5
intimidation or coercion, or to retaliate against government 6
conduct”; and is a violation of any one of a number of 7
enumerated statutes, including 18 U.S.C. §§ 1114 and 2332. 8
U.S.S.G. § 3A1.4 app. n. 1; 18 U.S.C. § 2332b(g)(5). 9
The district court found that Siddiqui’s offenses were 10
calculated to influence or affect government conduct and 11
that they were calculated to retaliate against government 12
conduct. As to the former, the court determined that 13
Siddiqui’s offenses were “calculated to influence or affect 14
by intimidation the government’s fulfillment of its official 15
duties including, among other things, the interview team’s 16
efforts to interview . . . and . . . detain her.” JA 2848. 17
The court, pointing to statements Siddiqui made while in 18
Afghan custody, determined that Siddiqui began scheming to 19
avoid transfer to American custody on July 17, 2008, and 20
that the scheming came to fruition when Siddiqui gained 21
control of the Chief Warrant Officer’s rifle and fired at 22
the American interview team. 23

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37
In support of the latter finding, the district court 1
highlighted testimony regarding various anti-American 2
statements Siddiqui made while in custody. In the court’s 3
estimation, these statements demonstrated Siddiqui’s intent 4
to retaliate against the United States government. 5
Siddiqui argues that the district court erred in applying 6
the enhancement. She claims that application of both the 7
terrorism enhancement and the Guidelines’ official victim 8
enhancement resulted in impermissible double counting. She 9
also contends that her conduct was not “calculated,” as 10
required by the plain language of the enhancement. 11
According to Siddiqui, long-term planning is a necessary 12
condition to finding that a defendant’s offense was 13
“calculated.” 14
Siddiqui’s contention that the district court committed 15
error in applying both the official victim enhancement and 16
the terrorism enhancement is devoid of merit. “[A] district 17
court calculating a Guidelines sentence may apply multiple 18
[enhancements] based on the same underlying conduct,” 19
especially where “each of the multiple [enhancements] . . . 20
serves a distinct purpose or represents a discrete harm.” 21
United States v. Maloney, 406 F.3d 149, 152, 153 (2d Cir. 22

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38
2005). The terrorism and official victim enhancements both 1
address discrete harms resulting from Siddiqui’s conduct–the 2
official victim enhancement “deals with the selection of 3
victims based on their status as government employees,” and 4
the terrorism enhancement addresses those acts that are 5
calculated to influence government conduct or to retaliate 6
against a government. In re Terrorism Bombings of U.S. 7
Embassies in East Africa, 552 F.3d 93, 153 (2d Cir. 2008). 8
Accordingly, application of both the terrorism and official 9
victim enhancements does not constitute impermissible double 10
counting. See id. 11
Resolution of Siddiqui’s challenge to the district 12
court’s finding that her offense was “calculated” merits 13
more discussion. As previously noted, for the terrorism 14
enhancement to apply, the defendant’s offense must be 15
“calculated to influence or affect the conduct of government 16
by intimidation or coercion, or to retaliate against 17
government conduct.” 18 U.S.C. § 2332b(g)(5)(A) (emphasis 18
added). When we interpret the Guidelines, we “giv[e] the 19
words used their common meaning.” United States v. Stewart, 20
590 F.3d 93, 137 (2d Cir. 2009). “Calculated” means 21
“planned–for whatever reason or motive–to achieve the stated 22

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39
object.” Awan, 607 F.3d at 317; see Stewart, 590 F.3d at 1
137 (“The conventional meaning of ‘calculated’ is ‘devised 2
with forethought.’”). 3
Many courts (including this one) interpret “calculated” 4
as nearly synonymous with intentional. See Stewart, 590 5
F.3d at 137; see also United States v. Chandia, 675 F.3d 6
329, 333 n.3 (4th Cir. 2012); United States v. El-Mezain, 7
664 F.3d 467, 571 (5th Cir. 2011); United States v. 8
Jayyousi, 657 F.3d 1085, 1115 (11th Cir. 2011). Thus, “if a 9
defendant’s purpose in committing an offense is to 10
‘influence or affect the conduct of government by 11
intimidation or coercion, or to retaliate against government 12
conduct,’” application of the terrorism enhancement is 13
warranted. See Stewart, 590 F.3d at 137 (emphasis added) 14
(quoting 18 U.S.C. § 2332b(g)(5)(A)). Where, however, 15
“there is no evidence that the defendant sought to influence 16
or affect the conduct of the government,” the enhancement is 17
inapplicable. Id. (internal quotation marks omitted). 18
Most cases applying the terrorism enhancement have 19
involved conduct that spanned a significantly greater length 20
of time than the conduct here. See, e.g., Awan, 607 F.3d at 21
310-11; United States v. Salim, 549 F.3d 67, 70-71 (2d Cir. 22

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40
2008); In re Terrorist Bombings, 552 F.3d at 103-05 (2d Cir. 1
2008); United States v. Meskini, 319 F.3d 88, 90-91 (2d Cir. 2
2003). Relying on this observation, Siddiqui argues that 3
“calculation,” as used in the enhancement, incorporates a 4
long-term planning requirement. We disagree. That long- 5
term planning is present in many of the cases applying the 6
terrorism enhancement does not make it a condition necessary 7
to finding that a defendant’s offense was calculated to 8
influence government conduct or to retaliate against a 9
government. Instead, the terrorism enhancement is 10
applicable where a defendant acts according to a 11
plan–whether developed over a long period of time or 12
developed in a span of seconds–with the object of 13
influencing government conduct or retaliating against a 14
government. 15
The day before the shooting incident here, Siddiqui 16
repeatedly implored Afghan police officials not to turn her 17
over to American forces. Siddiqui gained control of an M-4 18
rifle and fired on the American interview team attempting to 19
take her into United States custody the following day. 20
Under these circumstances, the district court did not 21

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14We decline Siddiqui’s invitation to apply a searching de novo review
here. Because the district court’s finding on this score is factual, clear
error review is appropriate. See Salim, 549 F.3d at 79; see also El-Mezain,
664 F.3d at 571.
41
clearly err 14 in its determination that Siddiqui’s offense 1
was calculated to influence government conduct–i.e, the 2
United States’ attempts to take Siddiqui into custody–by 3
intimidation or coercion. 4
We also find that the district court did not clearly 5
err in determining that Siddiqui’s offense was calculated to 6
retaliate against the United States. While in Afghan 7
custody prior to the shooting incident, Siddiqui referred to 8
the United States as invaders, and when queried about the 9
bomb-making documents found in her possession, Siddiqui 10
indicated that the target of those bombs were “the 11
foreigners.” See JA 3022. What’s more, shortly after 12
firing on the American interview team, Siddiqui stated: “I 13
am going to kill all you Americans. You are going to die by 14
my blood”; “death to America”; and “I will kill all you 15
motherfuckers.” Taken as a whole, this evidence provides a 16
sufficient factual basis for the district court’s conclusion 17
that Siddiqui’s offense was calculated to retaliate against 18
the United States. 19
20

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42
Accordingly, the district court did not err in applying 1
the terrorism enhancement. 2
III. CONCLUSION 3
For the foregoing reasons, and for the reasons provided 4
in the accompanying summary order, Siddiqui’s convictions 5
and sentence are hereby affirmed. 6

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