Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AHMED OMAR ABU ALI, a/k/a Reda, No. 06-4334
a/k/a Hani, a/k/a Abi Umar, a/k/a
Ashraf, a/k/a Abu Abdullah,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
AHMED OMAR ABU ALI, a/k/a Reda, No. 06-4521
a/k/a Hani, a/k/a Abi Umar, a/k/a
Ashraf, a/k/a Abu Abdullah,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:05-cr-00053-GBL)
Argued: June 21, 2007
Decided: June 6, 2008
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
2 UNITED STATES v. ALI
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Wilkinson, Judge Motz, and Judge Traxler wrote a joint
opinion in this case. Judge Wilkinson and Judge Traxler join the opin-
ion in its entirety. Judge Motz joins the opinion with the exception of
footnote 5 and Section VII, as to which she has written a dissenting
statement and opinion.
COUNSEL
ARGUED: Joshua Lewis Dratel, New York, New York, for Ahmed
Omar Abu Ali, Appellant/Cross-Appellee. David Howard Laufman,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for the United States,
Appellee/Cross-Appellant. ON BRIEF: Joseph Margulies, UNIVER-
SITY OF CHICAGO LAW SCHOOL, Chicago, Illinois, for Ahmed
Omar Abu Ali, Appellant/Cross-Appellee. Chuck Rosenberg, United
States Attorney, Stephen M. Campbell, Assistant United States Attor-
ney, Marla B. Tusk, Trial Attorney, Department of Justice, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
the United States, Appellee/Cross-Appellant.
OPINION
WILKINSON, MOTZ, and TRAXLER, Circuit Judges:
Ahmed Omar Abu Ali was convicted by a jury of nine criminal
counts arising from his affiliation with an al-Qaeda terrorist cell
located in Medina, Saudi Arabia, and its plans to carry out a number
of terrorist acts in this country. He was sentenced by the district court
to 360 months imprisonment and 360 months of supervised release
following imprisonment. Abu Ali appeals his convictions and the
government cross-appeals his sentence. For the following reasons, we
affirm the conviction, but we vacate and remand for purposes of
resentencing.
Unlike some others suspected of terrorist acts and designs upon the
United States, Abu Ali was formally charged and tried according to
UNITED STATES v. ALI 3
the customary processes of the criminal justice system. Persons of
good will may disagree over the precise extent to which the formal
criminal justice process must be utilized when those suspected of par-
ticipation in terrorist cells and networks are involved. There should
be no disagreement, however, that the criminal justice system does
retain an important place in the ongoing effort to deter and punish ter-
rorist acts without the sacrifice of American constitutional norms and
bedrock values. As will be apparent herein, the criminal justice sys-
tem is not without those attributes of adaptation that will permit it to
function in the post-9/11 world. These adaptations, however, need not
and must not come at the expense of the requirement that an accused
receive a fundamentally fair trial. In this case, we are satisfied that
Abu Ali received a fair trial, though not a perfect one, and that the
criminal justice system performed those functions which the Constitu-
tion envisioned for it. The three of us unanimously express our con-
viction that this is so in this opinion, which we have jointly authored.
Some differences do exist, however, among the panel members.
Judge Wilkinson and Judge Traxler join in the opinion in its entirety.
Judge Motz dissents (in footnote 6) from the majority’s holding that
the interrogation of Abu Ali on June 15, 2003, did not constitute a
joint venture between law enforcement officers of Saudi Arabia and
those of the United States. Judge Motz likewise dissents from Section
VII of the panel’s opinion, which directs that the case be remanded
to the district court for the purposes of resentencing.
I.
A.
Abu Ali is an American citizen. He was born in Texas and raised
in Falls Church, Virginia by his mother and father, the latter of whom
was employed at the Royal Embassy of Saudi Arabia in Washington,
D.C. After graduating from the Saudi Islamic Academy in Virginia,
Abu Ali studied for one semester at the University of Maryland and
then enrolled in the Institute in Virginia to study Islamic Sciences.
In September 2002, at the age of 21, Abu Ali left his home in Falls
Church, Virginia and traveled to Saudi Arabia to study at the Islamic
University in Medina. Within a few months of his arrival in Medina,
4 UNITED STATES v. ALI
Abu Ali contacted Moeith al-Qahtani ("al-Qahtani"). Abu Ali and al-
Qahtani had become friends two years earlier when Abu Ali attended
an Islamic summer study session in Saudi Arabia and, upon his return
to Saudi Arabia, Abu Ali renewed the friendship. The two "often
talked about jihad" and, in November 2002, al-Qahtani introduced
Abu Ali to Sultan Jubran Sultan al-Qahtani ("Sultan Jubran"), who
was also known by the name of "Ali."1 Sultan Jubran had been a
mujahid soldier during the United States bombing of Tora Bora in
Afghanistan (a major battle between al-Qaeda/Taliban forces and
United States forces during the Afghanistan invasion) and, when
introduced to Abu Ali, was second-in-command of an al-Qaeda cell
in Medina. Abu Ali "accepted and liked the idea" of meeting the "mu-
jahid brother." After their introduction, he and Sultan Jubran also
talked "about the virtues of jihad" and exchanged cell phone numbers
to keep in touch.
In the ensuing months, Abu Ali and Sultan Jubran continued their
discussions. During one such meeting, Sultan Jubran questioned Abu
Ali "about gathering and crowded places" in the United States. Abu
Ali, who "understood the implication of his question," informed Sul-
tan Jubran that these "would be amusement parks . . . and stadiums."
At one point, when Abu Ali was unsuccessful in contacting Sultan
Jubran by cell phone, he obtained the latter’s email address from al-
Qahtani and sent Sultan Jubran a message asking that he be contacted.
Shortly thereafter, Sultan Jubran did contact Abu Ali and the two men
met again in Jiddah, Saudi Arabia, which is just to the south of
Medina. At this meeting, Sultan Jubran urged Abu Ali to engage in
jihad against America. According to Abu Ali, Sultan Jubran "told me
that they had something to do" and "asked [me] to be ready to join
them in working against America." Abu Ali "immediately accepted,
because of my hatred of the [United States] for what I felt was its sup-
port of Israel against the Palestinian people, and because I was origi-
nally from Jerusalem."
Later, Sultan Jubran advised Abu Ali that Abu Ali would soon be
meeting "the person in charge of the organization." According to Abu
Ali, Sultan Jubran "explained to me that I was one of them now, and
1
Jihad is "a holy war undertaken as a sacred duty by Muslims." Web-
ster’s Unabridged Dictionary 1029 (2d ed. 2001).
UNITED STATES v. ALI 5
that I could speak in the name of al-Qaeda." A few days later, Sultan
Jubran arranged a meeting between himself, Abu Ali, and Ali Abd al-
Rahman al-Faq’asi al-Ghamdi ("al-Faq’asi"), the leader or "brother in
charge" of the al-Qaeda terrorist cell in Medina, who was also known
by the name of "Adil. "
Abu Ali and al-Faq’asi met a number of times thereafter to discuss
the Medina cell’s plans for jihad. More specifically, al-Faq’asi
advised Abu Ali that an assignment was planned inside the United
States and the two men discussed and considered a number of alterna-
tives for terrorist attacks within the United States. According to Abu
Ali, al-Faq’asi "presented me with two ideas, based on the fact that
I was a [United States] citizen and that I had not engaged in jihad
before." "The first idea was to carry out a major operation that he
would arrange." The second was "that I would go to the [United
States], settle down, find work, lead a normal life, blend into Ameri-
can society and marry a Christian," which would allow him to "plan
successive operations inside the [United States] for which . . . al-
Faq’asi would send individuals to carry out." In other words, Abu
Ali, who was a United States citizen able to return at will and move
freely about in the country, would marry a Christian woman, live an
overtly normal life to deflect attention, establish a sleeper cell within
this country, and prepare for operation instructions and additional
operatives to assist.
After this introduction to al-Faq’asi, Abu Ali "became directly con-
nected" to the leader of the cell and "stopped seeing or hearing from
Sultan" Jubran. However, he "continued to meet . . . al-Faq’asi in var-
ious places" and "discuss[ed] how to carry out the assignment in the
[United States]." According to Abu Ali, he met with al-Faq’asi on six
separate occasions to plan such terrorist operations within the United
States. In the course of these meetings, Abu Ali suggested assassina-
tions or kidnappings of members of the United States Senate, the
United States Army, and the Bush Administration, a plan to rescue
the prisoners at Guantanamo Bay, and plans to blow up American
warplanes on United States bases and at United States ports, similar
to the USS Cole operation. Al-Faq’asi suggested an operation similar
to the 9/11 bombings, but which would originate in planes departing
from Britain or Australia for Canada in order to circumvent the
requirements of a United States visa to enter the country, and plans
6 UNITED STATES v. ALI
to assassinate President Bush. With regard to the presidential assassi-
nation, Abu Ali suggested two possibilities: an assassination plot
involving at least three snipers to fire upon the President while in pub-
lic or a martyr operation conducted while the President was out greet-
ing the public.
In the course of these plans and discussions, Al-Faq’asi requested
that Abu Ali move out of the dormitory where he lived and advised
Abu Ali that a "suitable residence" would be found where he "could
be trained on manufacturing explosives, information gathering, and
forgery." Abu Ali went with al-Faq’asi to live in a villa in the al-Iskan
neighborhood in Medina for training. Using the name "Ashraf," Abu
Ali was trained by a man called "Ahmad" on how to assemble and
disassemble the Kalashnikov machine gun, five of which were located
in the villa along with ammunition. Abu Ali informed Ahmad that he
was tasked with killing the United States President. Abu Ali also
spoke on at least one occasion to Sheikh Nasser, a/k/a Ali al-Khudair,
who "gave his blessing for the assassination of the President of the
United States."
In addition to training, the al-Faq’asi Medina cell provided Abu Ali
with finances and equipment. He was given money to buy a laptop
computer, a cell phone, and books, as well as written materials on
security and methods of concealment. He was also given a USB mem-
ory chip that included a clip taken during the bombing of Afghanistan
which contained the voices of American pilots, and tasked with trans-
lating the recording into Arabic.
On May 6, 2003, Saudi authorities discovered a large stash of
weapons and explosives in Riyadh, Saudi Arabia, which was sus-
pected to be intended for use in terrorist activities within that country.
The following day, the Saudi government published a list of the 19
most wanted individuals in connection with terrorist activity. The list
included al-Faq’asi and Sultan Jubran. According to Abu Ali, after the
list was published, al-Faq’asi told him that the villa location would be
changed and Abu Ali was taken to a farm where he stayed for several
days.
Six days later, on May 12, 2003, al-Qaeda carried out a number of
suicide bombings in Riyadh, killing approximately 34 people includ-
UNITED STATES v. ALI 7
ing 9 Americans. That night, Abu Ali and the other cell members per-
formed guard duty at the cell’s safehouses. After the bombings, Abu
Ali and a number of the others moved to a second villa in an al-Iskan
neighborhood where they stayed for three days, although Abu Ali did
not spend the night in the villa with the others. According to Abu Ali,
the villa contained "a dimly-lit room that contained wires and cell
phones, . . . machine guns, ammunition, a pistol and a hand grenade."
Later, the group moved back to the farm, where Abu Ali continued
his training in explosives and forgery. He received lessons from
Majid (Mohammad Salem al-Ghamdi) on forging and removing seals,
altering photos, and removing visas, and received lessons from al-
Faq’asi on explosives, making explosives, and compounds. Another
man, Umar al-Hakmi, provided lessons on fuses and wiring.
On May 26 and 27, 2003, authorities with the Saudi Mabahith
received orders to raid several suspected terrorist safe houses in
Medina, including the safe house in the Al-Azhari villa where Abu
Ali had received training.2 Among the evidence retrieved during the
search of one safe house was an English translation of an American
pilot’s radio transmission and a paper with Abu Ali’s additional alias
names of "Hani" and "Hanimohawk" written on it. The authorities
also recovered a number of automatic rifles and guns, ammunition,
fertilizer, hand grenades, cell phones which were being converted to
explosives, as well as computers, cameras, walkie-talkies, and lami-
nating equipment for identification cards. A number of members of
the al-Faq’asi terrorist cell were arrested during the raids, including
al-Ghamdi, who had trained Abu Ali, and Sheikh Nasser, who had
given Abu Ali the blessing for the presidential assassination. Al-
Faq’asi and Sultan Jubran, disguised in women’s clothing, escaped.3
During subsequent questioning by the Saudi authorities, al-Ghamdi
informed the Mabahith that one of their members was a student at the
University of Medina of either American or European background
who went by the alias "Reda" or "Ashraf." Further investigative
2
The Saudi Mabahith is part of the Saudi Ministry of Interior. Its mis-
sion is to fight terrorism.
3
Al-Faq’asi surrendered to Saudi authorities in June 2003. Sultan
Jubran was killed in a shootout with Saudi authorities in September
2003.
8 UNITED STATES v. ALI
efforts resulted in the photo identification of Abu Ali as the American
or European member of the cell.
On June 8, 2003, Abu Ali was arrested by the Mabahith at the
Islamic University in Medina and his dormitory room was searched.
Among the items found there were a GPS device, jihad literature, a
walkie talkie, a United States passport, a Jordanian passport and iden-
tification card, a Nokia cellular telephone, a telephone notebook con-
taining al-Qahtani’s name, and literature on jihad. Abu Ali was then
flown from Medina to Riyadh, where he was interrogated by the
Mabahith. Although he initially denied involvement with the al-
Faq’asi cell, he confessed when the Mabahith officers addressed him
with his alias names of "Reda" and "Ashraf." Specifically, Abu Ali
confessed to his affiliation with al-Qaeda and, in particular, the
Medina cell headed by al-Faq’asi. According to Abu Ali, he joined
the al-Qaeda cell "to prepare and train for an operation inside the
[United States]," including an "intention to prepare and train to kill
the [United States] President." In addition to written confessions, the
Mabahith obtained a videotaped confession in which Abu Ali admit-
ted his affiliation with the Medina cell and its plans to conduct terror-
ist operations within the United States, including the plan to
assassinate President Bush and to destroy airliners destined to this
country.
Following Abu Ali’s arrest by the Saudi authorities, the FBI was
notified of his suspected involvement in the al-Qaeda cell in Saudi
Arabia and advised that the cell was planning on conducting terrorism
operations in the United States. Although the FBI requested access to
Abu Ali, the Mabahith denied the request. On June 15, 2003, the
Mabahith allowed the FBI to supply proposed questions, but later
rejected the list and the breadth of the inquiry sought. Ultimately, the
Mabahith only agreed to ask Abu Ali six of those questions and to
allow the FBI officers to observe his responses through a one-way
mirror. Abu Ali was asked whether he was tasked to assassinate the
President (as had been reported by the Mabahith to the FBI), when he
arrived in Saudi Arabia, whether he knew of any planned terrorist
attacks against American, Saudi, or Western interests, whether he was
recruited by any terrorist organization, whether he had used false
passports, and the nature of his father’s position in the Embassy.
UNITED STATES v. ALI 9
Other than consular contact, the United States was denied all access
to Abu Ali until September of 2003.
In the meantime, on June 16, 2003, the FBI obtained and executed
a search warrant at Abu Ali’s home in Virginia. Among the items
found there, the agents discovered a printout of the buddy list of email
addresses from MSN Hotmail account Ahmedabuali@hotmail.com,
which contained an address of abumuslim99@hotmail.com for al-
Qahtani, an address book containing the name of al-Qahtani, a two-
page article praising the 9/11 attacks in this country, a handguns mag-
azine addressed to Abu Ali which contained a feature article on meth-
ods for the concealed carrying of handguns, and an email message
from an unknown individual to Abu Ali discussing opportunities for
Muslim fighters in the conflict between Muslim rebels and Russians
in Chechnya.
B.
On February 3, 2005, a federal grand jury returned an indictment
against Abu Ali. The Saudi officials surrendered Abu Ali to United
States authorities and he was flown back to the United States on Feb-
ruary 21, 2005. He had his initial appearance before the United States
magistrate judge the following day. In the superseding indictment,
Abu Ali was charged with the following offenses: Conspiracy to Pro-
vide Material Support and Resources to a Designated Foreign Terror-
ist Organization (al-Qaeda), in violation of 18 U.S.C.A. § 2339B
(Count 1); Providing Material Support and Resources to a Designated
Foreign Terrorist Organization (al-Qaeda), in violation of 18
U.S.C.A. § 2339B (Count 2); Conspiracy to Provide Material Support
to Terrorists, in violation of 18 U.S.C.A. § 2339A (Count 3); Provid-
ing Material Support to Terrorists, in violation of 18 U.S.C.A.
§ 2339A (Count 4); Contribution of Services to al-Qaeda, in violation
of 50 U.S.C.A. § 1705(b), 31 C.F.R. § 595.204 (Count 5); Receipt of
Funds and Services from al-Qaeda, 50 U.S.C.A. § 1705(b), 31 C.F.R.
§ 595.204 (Count 6); Conspiracy to Assassinate the President of the
United States, 18 U.S.C. § 1751 (Count 7); Conspiracy to Commit
Aircraft Piracy, 49 U.S.C.A. § 46502(a)(2) (Count 8); and Conspiracy
to Destroy Aircraft, 18 U.S.C.A. § 32(b)(4) (Count 9).
In March 2005, the government filed a motion pursuant to Rule 15
of the Federal Rules of Criminal Procedure requesting an order allow-
10 UNITED STATES v. ALI
ing it to conduct depositions of the Saudi Arabian witnesses in Saudi
Arabia. Over Abu Ali’s objection, these depositions were taken in
July 2005.
On October 25, 2005, the district court rejected Abu Ali’s subse-
quent attempts to prohibit admission of the deposition testimony at
trial, as well as his effort to suppress the introduction of his various
statements and confession made to the Saudi Mabahith, see United
States v. Abu Ali, 395 F. Supp. 2d 338 (E.D. Va. 2005), and trial com-
menced before the jury on October 31, 2005.
On November 22, 2005, Abu Ali was convicted of all charges. He
was subsequently sentenced to 360 months imprisonment to be fol-
lowed by a term of 360 months of supervised release. Abu Ali appeals
his convictions and his sentence on a number of grounds and the gov-
ernment cross-appeals the sentence.
II.
It is undisputed that during Abu Ali’s time in Saudi custody, he
was repeatedly interrogated, but never given either a probable cause
determination or Miranda warnings, see Miranda v. Arizona, 384
U.S. 436 (1966). It is also undisputed that the district court admitted
into evidence at trial inculpatory statements and confessions elicited
during this custodial interrogation. Abu Ali contends that the court
erred in permitting the jury to consider these statements and confes-
sions, because (1) he was never brought before a judicial officer for
a probable cause determination, (2) he was never given Miranda
warnings, and (3) his statements were allegedly involuntary. We
address each purported basis for exclusion in turn.
A.
Abu Ali first contends that following his arrest in Saudi Arabia on
June 8, 2003, he had a Fourth Amendment and statutory right to
prompt presentment before a neutral judicial officer, such as a United
States federal magistrate, to determine that probable cause supported
his detention. See Gerstein v. Pugh, 420 U.S. 103, 125 (1975); 18
U.S.C. § 3501(c) (2000); Fed. R. Crim. P. 5(a)(1)(B); see also County
UNITED STATES v. ALI 11
of Riverside v. McLaughlin, 500 U.S. 44, 52-53 (1991). He contends
that because he was not afforded this right, all evidence obtained dur-
ing his time in Saudi custody was inadmissible as "fruit" of the
prompt presentment violation.
Of course, any prompt presentment guarantee applies only to
actions undertaken by domestic authorities. Abu Ali thus rests his
prompt presentment claim on the assertion that his arrest and deten-
tion by Saudi authorities, beginning on June 8, 2003, resulted from an
"illicit working arrangement" between Saudi and United States law
enforcement and so his right to prompt presentment attached at the
time of that collaboration. See United States v. Alvarez-Sanchez, 511
U.S. 350, 359-60 (1994) (noting that "improper collaboration"
between federal and state officers undertaken to delay federal present-
ment leads to suppression in federal court of any resultant confes-
sion); Anderson v. United States, 318 U.S. 350, 356 (1943) (excluding
fruits of these impermissible "working arrangement[s]").4 The district
court thoroughly considered and rejected Abu Ali’s factual assertion
that there was such a "working arrangement" between Saudi and
United States law enforcement.
After hearing two weeks of testimony, the district court found that
"[t]he evidence clearly demonstrates that the Saudi government
arrested the defendant on June 8, 2003, in Saudi Arabia based on its
own information and interest in interrogating the defendant as a sus-
pected member of the al-Faq’asi terrorist cell located in Medina,
Saudi Arabia." Abu Ali, 395 F. Supp. 2d at 381-82 . The court further
found that Saudi officials did not engage in improper collaboration
with the United States in effecting Abu Ali’s arrest.
4
The sole, prompt presentment argument offered by, or available to,
Abu Ali challenges his treatment while in Saudi custody. He received a
probable cause determination — in the form of a federal indictment —
before he was taken into United States custody on February 21, 2005. An
individual arrested following the return of a proper indictment has no
"prompt presentment" right. See Gerstein, 420 U.S. at 114 (limiting the
right to prompt presentment to cases of warrantless arrest); see also id.
at 117 n.19 ("[A]n indictment . . . conclusively determines the existence
of probable cause and requires issuance of an arrest warrant without fur-
ther inquiry.").
12 UNITED STATES v. ALI
Abu Ali does not appear to dispute the district court’s factual find-
ing that the United States did not participate in his arrest in Medina.
Nor does he point to any evidence that calls into question the district
court’s finding that, in the wake of the May 12, 2003 bombings in
Riyadh, the Saudi government had an independent interest in, and in
fact acted independently in, detaining him. Moreover, although he
disputes the district court’s finding that he was held "pursuant to a
Saudi government order," Abu Ali, 395 F. Supp. 2d at 382, he offered
no credible evidence that the Saudis held, or continued to hold, him
so that United States officials could evade their constitutional duties.
Accordingly, we can hardly conclude that the district court clearly
erred in finding that there was no "improper collaboration" between
United States and Saudi law enforcement. Because United States law
enforcement did not collaborate in Abu Ali’s arrest or detention, we
must reject Abu Ali’s prompt presentment claim.
B.
1.
We next consider Abu Ali’s Miranda challenge. Generally, state-
ments made by a defendant held in United States custody and ques-
tioned by law enforcement officers without receiving Miranda
warnings are inadmissible at trial in this country. See New York v.
Quarles, 467 U.S. 649, 654 (1984). But because the United States
cannot dictate the protections provided to criminal suspects by foreign
nations and one of the principal purposes of the exclusionary rule —
deterrence of unlawful police activity — is absent when foreign
agents direct an interrogation, a different rule applies to statements
elicited by foreign officials. See United States v. Martindale, 790 F.2d
1129, 1132 (4th Cir. 1986) ("[T]he exclusionary rule has little or no
effect upon the conduct of foreign police."). Thus, voluntary state-
ments obtained from a defendant by foreign law enforcement officers,
even without Miranda warnings, generally are admissible. See United
States v. Yousef, 327 F.3d 56, 145 (2d Cir. 2003); Kilday v. United
States, 481 F.2d 655, 656 (5th Cir. 1973).
Notwithstanding this distinction, United States law enforcement
officials may not intentionally evade the requirements of Miranda by
purposefully delegating interrogation duties to foreign law enforce-
UNITED STATES v. ALI 13
ment officers and then having the fruits of the interrogation admitted
at trial in the United States. See, e.g., United States v. Maturo, 982
F.2d 57, 61 (2d Cir. 1992); cf. Anderson, 318 U.S. at 356 ("There was
a working arrangement between the federal officers and [a local sher-
iff] . . . [t]herefore, the fact that the federal officers themselves were
not formally guilty of illegal conduct does not affect the admissibility
of the evidence which they secured improperly through collaboration
with state officers."). For this reason, two exceptions have developed
to the general rule that voluntary statements obtained by foreign offi-
cials during a custodial interrogation without benefit of Miranda
warnings are admissible. Namely, such statements will not be admis-
sible if obtained by foreign officials (1) engaged in a joint venture
with, or (2) acting as agents of, United States law enforcement offi-
cers. See, e.g., United States v. Heller, 625 F.2d 594, 599 (5th Cir.
1980); see also Maturo, 982 F.2d at 61.
Abu Ali contends that his answers to an interrogation on June 15,
2003 should not have been admitted into evidence because that inter-
rogation constituted a "joint venture" between his Saudi interrogators
and United States law enforcement officers, and his Saudi interroga-
tors acted as the agents of United States law enforcement on that day,
posing questions prepared by the FBI and asked at its behest. The dis-
trict court considered and rejected both claims in denying Abu Ali’s
pre-trial motion to suppress, holding admissible all of his statements
to the Mabahith.
Abu Ali does not dispute the court’s factual finding that the United
States was not involved in his interrogation prior to June 15th, or in
his handwritten confession or the July 24th videotaped reading of that
confession and that, therefore, United States officials had no duty to
ensure that he received Miranda warnings on those occasions. Thus,
he only challenges the failure to provide Miranda warnings with
respect to the statements taken on June 15, 2003, and argues that the
June 15th violation tainted his later statements.
2.
As mentioned earlier, prior to its June 15th interrogation of Abu
Ali, the Saudi Mabahith allowed United States law enforcement offi-
cers to propose questions to be asked of the defendant. The FBI sup-
14 UNITED STATES v. ALI
plied a list of questions, and, on June 15th, the Mabahith asked Abu
Ali six of the questions submitted. However, the Saudis rejected a
majority of the questions proposed by the FBI, and asked a number
of their own questions during the interrogation. Furthermore, although
no FBI or other United States agents were present in the interrogation
room on June 15th or had any direct contact with Abu Ali, FBI and
Secret Service agents did observe Abu Ali and his interrogator
through a one-way mirror during the questioning, and a Saudi official
consulted with the observing United States agents at the end of the
interview. After properly recounting these facts, the district court con-
cluded that they did not constitute a "joint venture" between Saudi
interrogators and United States law enforcement officers.
The "joint venture" doctrine provides that "statements elicited dur-
ing overseas interrogation by foreign police in the absence of
Miranda warnings must be suppressed whenever United States law
enforcement agents actively participate in questioning conducted by
foreign authorities." Yousef, 327 F.3d at 145; see also Heller, 625
F.2d at 599 ("[I]f American officials participated in the foreign search
or interrogation . . . the exclusionary rule should be invoked.");
Pfeifer v. U.S. Bureau of Prisons, 615 F.2d 873, 877 (9th Cir. 1980)
("Under the joint venture doctrine, evidence obtained through activi-
ties of foreign officials, in which federal agents substantially partici-
pated and which violated the accused’s Fifth Amendment or Miranda
rights, must be suppressed in a subsequent trial in the United
States.").
Only a few cases illuminate what constitutes "active" or "substan-
tial" participation. See Yousef, 327 F.3d at 144-46 (finding no active
participation when there was no evidence that the United States had
"encouraged, requested, or participated in [suspect’s] interrogation or
written statement" and United States agents did not receive any state-
ment from foreign authorities until after suspect was in United States
custody); Heller, 625 F.2d at 599-600 & n.7 (finding no joint venture
when American law enforcement was only "peripheral[ly]" involved
in suspect’s arrest, Mirandized the suspect when questioning him, and
did not exchange information with British authorities regarding sepa-
rate un-Mirandized interrogation of suspect by the British); Pfeifer,
615 F.2d at 877 (finding no substantial participation when an Ameri-
can Drug Enforcement Agency (D.E.A.) agent was present during
UNITED STATES v. ALI 15
interrogation, but there was no evidence that the agent instigated any
questioning or took any part in it); United States v. Emery, 591 F.2d
1266, 1268 (9th Cir. 1978) (finding substantial participation when
American D.E.A. agents contacted Mexican officials about suspected
drug activity, coordinated the relevant surveillance, supplied person-
nel in the sting operation, signaled appropriate time to arrest suspects,
and were present at suspect’s interrogation); United States v. Trenary,
473 F.2d 680, 682 (9th Cir. 1973) (finding no joint venture when
American customs officer, who never identified himself as an Ameri-
can agent, translated questions asked by Mexican police officers).
Although few in number, these cases do permit us to derive one
general rule: mere presence at an interrogation does not constitute the
"active" or "substantial" participation necessary for a "joint venture,"
see Pfeifer, 615 F.2d at 877, but coordination and direction of an
investigation or interrogation does, see Emery, 591 F.2d at 1268; see
also Pfeifer, 615 F.2d at 877 & n.3 (implying that had U.S. officials
participated in the suspect’s questioning the court might face a differ-
ent case). A majority of the court would affirm the district court’s
holding that the June 15th interrogation was not a joint venture and
so there was no Miranda violation.5 One judge believes that the June
(Text continued on page 17)
5
Judge Wilkinson and Judge Traxler would affirm the district court
and hold that the June 15th interrogation of Abu Ali was not a joint ven-
ture. The joint venture doctrine prohibits American law enforcement offi-
cers from circumventing the constitutional protections afforded criminal
suspects who are interrogated by foreign officials when the United States
possesses a significant degree of investigative control or authority. This
purpose underlies, and informs, the "active" or "substantial" participation
standard typically utilized in joint venture determinations. See, e.g.,
Emery, 591 F.2d at 1267-68 (finding the arrest and interrogation of a sus-
pect in Mexico to be a joint venture because American officials "alerted
the Mexican police of the possible activity, coordinated the surveillance,"
participated in the sting operation, "gave the signal that instigated the
arrest," and were present at the interrogation); United States v. Mundt,
508 F.2d 904, 906-907 (10th Cir. 1974) (finding the arrest and interroga-
tion of a suspect in Peru not to be a joint venture, even though an Ameri-
can official "helped plan the operation" that led to the arrest, because
"the Peruvian Police [were] in ultimate control" once the arrest was
made).
16 UNITED STATES v. ALI
The district court, after considering nearly fourteen days of testimony,
found that the June 15 interrogation did not constitute a joint venture
because the United States, lacking any investigative control or authority,
did not "actively" or "substantially" participate. We affirm this finding.
To begin, the United States played no role in the arrest or detention of
Abu Ali, and the "Saudi government was in complete control of Mr. Abu
Ali while in custody." Abu Ali, 395 F. Supp. 2d at 381-82. Likewise, "the
Saudi government controlled every aspect of the questioning of Mr. Abu
Ali on June 15, 2003." Id. at 382. For instance, the Saudi government
refused to accommodate a request by the United States to directly ques-
tion Abu Ali, instead only permitting American officials to observe the
interrogation through a one-way mirror. Although the Saudis did allow
the United States to submit questions for consideration, at no point did
the Saudi government relinquish any part of its control over the interro-
gation: the Mabahith "determined what questions would be asked, deter-
mined the form of the questions, and set the length of the interrogation."
Id. In fact, the Saudi interrogators refused to ask a majority of the ques-
tions submitted by the United States, and asked a number of their own
questions during the interrogation.
In sum, the Saudis were always in control of the investigation. It is
clear to us, as it was to the district court, that the Mabahith never acted
as a mouthpiece or mere conduit for their American counterparts. Based
on these findings, we are convinced, as was the district court, that Ameri-
can law enforcement officials were not trying to "evade the strictures of
Miranda," Martindale, 790 F.2d at 1131-32, and the June 15 interroga-
tion did not rise to the level of a joint venture. Abu Ali, 395 F. Supp. 2d
at 381-83.
A determination that the suggestion of questions, without more, consti-
tutes a joint venture would be problematic for at least two reasons. First,
such a broad holding would contravene the well-established notion that
Miranda, which is intended to regulate only the conduct of American law
enforcement officers, does not apply extraterritorially to foreign officials
absent significant involvement by American law enforcement. See Mar-
tindale, 790 F.2d at 1331-32 (quoting United States v. Chavarria, 443
F.2d 904, 905 (9th Cir. 1971)); see also, e.g., Yousef, 327 F.3d at 145;
United States v. Covington, 783 F.2d 1052, 1056 (9th Cir. 1985); United
States v. Nolan, 551 F.2d 266, 273 (10th Cir. 1977); Kilday , 481 F.2d
at 656. Second, such a broad per se holding could potentially discourage
UNITED STATES v. ALI 17
15th interrogation was a joint venture in which United States law
enforcement officials violated Abu Ali’s Miranda rights.6
the United States and its allies from cooperating in criminal investiga-
tions of an international scope. Both the United States and foreign gov-
ernments may be hesitant to engage in many forms of interaction if the
mere submission of questions by a United States law enforcement officer
were to trigger full Miranda protections for a suspect in a foreign coun-
try’s custody and control. To impose all of the particulars of American
criminal process upon foreign law enforcement agents goes too far in the
direction of dictation, with all its attendant resentments and hostilities.
Such an unwarranted hindrance to international cooperation would be
especially troublesome in the global fight against terrorism, of which the
present case is clearly a part.
Because for the reasons noted above, the Saudis were in control of the
interrogation, they likewise were not acting as agents of the United
States. We therefore also would affirm the district court’s finding "that
Saudi officials did not act as ‘agents’ of the United States in the arrest,
detention, or interrogation of [Abu Ali]." Abu Ali, 395 F. Supp. 2d at
383.
Of course, the matter is one of degree, and American courts must
impose proper safeguards on the admission of evidence in their own pro-
ceedings. None of our discussion suggests for a moment that courts relax
their insistence that confessions must be voluntary and reliable. Regard-
less of whether there is a joint venture, the voluntariness standard, which
serves as the ultimate safeguard against coerced confessions, applies to
all interrogations and governs the admissibility of the statements at issue
here.
6
Judge Motz would hold that the June 15th interrogation was a joint
venture. In contending to the contrary, the government notes that the
United States agents never questioned Abu Ali face-to-face, that the
Saudi agents did not accept all of the questions proffered by United
States agents, and that the Saudi agents also asked questions of their
own. However, the government posits no legal reason that these facts
remove this encounter from the realm of "active" or "substantial" partici-
pation. Moreover, neither the government nor the majority offers any
case, from any court, that presents a situation analogous to the one at
issue here — that is, a case in which foreign officers, at the request of
the United States, posed questions that United States officials had
drafted, and then allowed United States officials to watch the interroga-
tion.
18 UNITED STATES v. ALI
3.
Even if the district court erred in refusing to suppress statements
made during the June 15th interrogation, we all agree that this error
was harmless.
Like any other evidentiary ruling, we subject the district court’s
error in admitting the statement to harmless error review. See Fed. R.
Crim. P. 52(a) ("Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded."). Evidence errone-
ously admitted will be deemed harmless if a reviewing court is able
Whatever else "active" or "substantial" participation may mean, when
United States law enforcement officials propose the questions pro-
pounded by foreign law enforcement officials, and those questions are
asked in the presence of, and in consultation with United States law
enforcement officials, this must constitute "active" or "substantial" par-
ticipation. Accord United States v. Bin Laden, 132 F. Supp. 2d 168, 187
(S.D.N.Y. 2001) ("Whatever the precise formulation, the existence of the
["joint venture"] exception itself is based on the assumption that Miran-
da must apply to any portion of an overseas interrogation that is, in fact
or form, conducted by U.S. law enforcement.") (dicta). After all, the pur-
pose of an interrogation is to obtain answers to questions about criminal
or otherwise dangerous activity. Drafting the questions posed to a sus-
pect thus constitutes the quintessential participation in an interrogation.
It differs in kind from observation of an interrogation, or rote translation
of an interrogator’s questions and a suspect’s responses. Observers and
translators undoubtedly gain important information from a suspect’s
answers as well as from his behavior and demeanor, but those who for-
mulate the questions asked during an interrogation actually direct the
underlying investigation.
To hold otherwise permits United States law enforcement officers to
strip United States citizens abroad of their constitutional rights simply by
having foreign law enforcement officers ask the questions. This cannot
be the law. Rather, when United States law enforcement officers provide
the questions to be asked of a suspect by cooperating foreign law
enforcement officials, they clearly have engaged in "active" or "substan-
tial" participation such that any resultant interrogation becomes a joint
venture. Consequently, when the suspect has not been given Miranda
warnings, the responses to that interrogation should be suppressed.
UNITED STATES v. ALI 19
to "say, with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was
not substantially swayed by the error." Kotteakos v. United States,
328 U.S. 750, 765 (1946); United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997). Here, we are able to say, with fair assurance, that the
jury’s judgment was not substantially swayed by the admission of
Abu Ali’s answers to the June 15th questioning.
This is so because, as the district court properly recognized, Abu
Ali had confessed to each of the crimes of which he was convicted
before the June 15th interrogation took place. As a result, Abu Ali’s
answers to the questions submitted by the FBI on June 15th were
cumulative. See United States v. Seidman, 156 F.3d 542, 558 (4th Cir.
1998) ("‘Improper admission of evidence which is cumulative of mat-
ters shown by admissible evidence is harmless error.’" (quoting Smith
v. Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir. 1985)).
We are thus confident that the admission of Abu Ali’s responses to
the June 15th questions did not substantially sway the jury verdict.
Therefore, any error in admitting these statements was harmless.
C.
Abu Ali next claims that all of his statements and confessions
while in Saudi custody should have been suppressed as involuntary.
The district court rejected this argument, finding that the government
had "demonstrated by a ‘preponderance of the evidence’ that any
incriminating statements" made by Abu Ali while in Saudi custody in
June and July, 2003, were "voluntary" and so admissible at trial.7 Abu
Ali, 395 F. Supp. 2d at 342.
When Miranda warnings are unnecessary, as in the case of an
interrogation by foreign officials, we assess the voluntariness of a
defendant’s statements by asking whether the confession is "the prod-
uct of an essentially free and unconstrained choice by its maker."
Culombe v. Connecticut, 367 U.S. 568, 602 (1961). If it is, "it may
7
Abu Ali also presented his evidence and contentions as to the volun-
tariness of his confessions to the jury, which could draw its own conclu-
sions. Since the jury found Abu Ali guilty on all charges, it presumably
also rejected any claim that his statements were involuntarily given.
20 UNITED STATES v. ALI
be used against him." Id. at 602. But, if the defendant’s "will has been
overborne and his capacity for self-determination critically impaired,
the use of his confession offends due process." Id.; see also Schnec-
kloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). The government
acknowledges that "[t]he crucial inquiry is whether [Abu Ali’s] will
has been ‘overborne,’" and maintains that it was not; Abu Ali, of
course, contends that it was.
In evaluating whether a defendant’s will has been overborne, courts
must assess the totality of the circumstances, taking into account char-
acteristics of the accused, and details of the interrogation. See Schnec-
kloth, 412 U.S. at 226. The factors we consider include: "the youth
of the accused, his lack of education, or his low intelligence, the lack
of any advice to the accused of his constitutional rights, the length of
detention, the repeated and prolonged nature of the questioning, and
the use of physical punishment such as the deprivation of food or
sleep." Id. (internal citations omitted). We review a trial court’s legal
conclusion as to the voluntariness of an accused’s statements de novo,
United States v. Dodier, 630 F.2d 232, 236 (4th Cir. 1980), but its
"findings of fact on the circumstances surrounding the confession" for
clear error, United States v. Braxton, 112 F.3d 777, 781 (4th Cir.
1997) (internal quotation marks omitted). We particularly defer to a
district court’s credibility determinations, for "it is the role of the dis-
trict court to observe witnesses and weigh their credibility during a
pre-trial motion to suppress." United States v. Murray, 65 F.3d 1161,
1169 (4th Cir. 1995).
In this case, after hearing nearly fourteen days of testimony, the
court issued a 113-page opinion describing and analyzing the testi-
mony of over 20 witnesses, including Abu Ali, his Saudi captors, FBI
agents, and American consular officials who met with Abu Ali during
his detention in Saudi Arabia, as well as psychiatrists, other doctors,
and nurses. The court evaluated the demeanor and testimony of these
witnesses, and then made extensive findings of fact as to the credibil-
ity of the witnesses, including Abu Ali, and the conditions of Abu
Ali’s confinement and interrogation. We need only briefly summarize
these factual findings here.
Initially, the court properly recognized that "torture, and evidence
obtained thereby, have no place in the American system of justice."
UNITED STATES v. ALI 21
Abu Ali, 395 F. Supp. 2d at 380. But, based on its evaluations of "the
credibility of the witnesses," and "the quality of the evidence pre-
sented," id. at 374, the district court found itself "left with lingering
questions concerning the credibility of Mr. Abu Ali and his claim that
he was tortured," id. at 378. The court credited the testimony of the
Saudi Arresting Officer and the Lieutenant Colonel (the Warden at
the Medina detention facility where Abu Ali was held for two days
following his arrest) that no Saudi official used coercive interrogation
techniques on Abu Ali. The court found that the Lieutenant Colonel’s
testimony that Abu Ali was never abused was believable while Abu
Ali’s contrary testimony "raise[d] questions that bear on the defen-
dant’s credibility." Id. at 373.
In addition, the court relied on the testimony of two other Saudi
officials, the Brigadier General and the Captain, that the interrogation
of Abu Ali in Riyadh "was conducted in the absence of threats or tor-
ture." Id. at 373. The court found "implausible" Abu Ali’s "claim
about having been whipped" during the early period of his detention
because several Saudi and American witnesses who observed him
during this period reported behavior "that do[es] not coincide with
how a recently beaten person would behave." Id. at 374. Moreover,
the court found that "[s]ome aspects" of Abu Ali’s testimony "just do
not flow logically," id. at 378, and observed that "during his testi-
mony, there were times where Mr. Abu Ali seemed to deflect the
question," id. Finally, the court considered, but found deficiencies in,
the testimony of Abu Ali’s medical experts who supported his torture
claim, crediting instead the testimony of the government’s experts
that Abu Ali showed no physical or psychological signs of mistreat-
ment.
The district court largely rested its legal conclusion that Abu Ali’s
statements were voluntary on its factual findings concerning his
claims of torture and abuse. Our thorough review of the record pro-
vides no basis for finding clear error in any of those findings. This,
however, does not end our inquiry. We must evaluate the voluntari-
ness of Abu Ali’s confessions de novo, looking to the totality of the
circumstances to determine whether his will was "overborne." See
Schneckloth, 412 U.S. at 225.
In making this evaluation, we consider that Abu Ali was not pro-
vided the legal protections — including prompt presentment and
22 UNITED STATES v. ALI
Miranda warnings — that the Constitution requires be provided to
suspects by United States law enforcement officers. Saudi Arabia is
a sovereign nation with its own legal system, and the failure to pro-
vide Abu Ali these protections does not, in and of itself, require
exclusion of the statements Abu Ali made in Saudi custody. At the
same time, we do consider the absence of these protections as one
factor in the totality of circumstances in evaluating whether Abu Ali
made his statements voluntarily.
In making this voluntariness determination, we also look to the dis-
trict court’s factual findings as to Abu Ali’s personal characteristics,
and the conditions of his confinement. The court noted that Abu Ali
"is an intelligent, well-educated man with a rich and graphic vocabu-
lary," Abu Ali, 395 F. Supp. 2d at 376, and found him "intelligent,
capable, and articulate," id. at 378. It is undisputed that Abu Ali
attended school in Saudi Arabia, and he does not allege any religious,
cultural, or linguistic difficulties in dealing with his Saudi interroga-
tors. Indeed, he responded to his interrogators’ questions in Arabic,
and the district court found that the Saudi officers provided him with
a prayer rug and Koran among other accommodations. For these rea-
sons, Abu Ali’s personal characteristics did not render him particu-
larly susceptible to coercion or pressure.
In addition, the district court rejected Abu Ali’s testimony that the
Saudis subjected him to coercive conditions of confinement. Instead,
the court found believable the testimony of Saudi officers that they
confined Abu Ali under reasonable conditions, including provision of
three meals a day, and a cell with a bed, blanket and pillow. The court
further found believable Saudi testimony that Saudi authorities did
not question Abu Ali during his initial detention in Medina, and noted
that Abu Ali’s own description of the Riyadh interrogation suggested
that he was not questioned in Medina.
Saudi authorities did question Abu Ali after transporting him to
Riyadh on June 10, 2003. But, the district court credited their testi-
mony that "Abu Ali was granted breaks, access to food, water, a bath-
room, and refreshments during breaks in questioning," and that they
did not attempt to deprive him of sleep. The court further found
believable testimony from Saudi authorities that during just the sec-
ond session of questioning, on June 11th, Abu Ali "began his lengthy
UNITED STATES v. ALI 23
and detailed confession." Abu Ali’s extensive written responses to
questions, beginning June 11, 2003 — his second day in Riyadh —
support this finding. Although the questioning of Abu Ali lasted many
days, that he began to confess in great detail on just the second day
of interrogation indicates that his will was not overborne by pro-
longed questioning.
After consideration of all of the evidence and the extensive factual
findings made by the district court, we conclude that Abu Ali’s state-
ments were voluntary. Abu Ali was intelligent, articulate, and com-
fortable with the language and culture of the country in which he was
detained and questioned. The district court found, based upon copious
record evidence, that he was not tortured, abused, threatened, held in
cruel conditions, or subjected to coercive interrogations. On the basis
of the totality of these circumstances, we conclude that Abu Ali’s
statements were "the product of an essentially free and unconstrained
choice." Culombe, 367 U.S. at 602.
III.
Even if we uphold (as we have) the district court’s findings as to
the presentment, Miranda, and voluntariness challenges to the admis-
sion of his multiple confessions, Abu Ali contends that the govern-
ment failed to corroborate the confessions sufficiently.
A.
Abu Ali poses this contention as a challenge to the sufficiency of
the evidence used to corroborate his confessions. To prevail on any
sufficiency challenge, a defendant must meet an exacting standard. In
most cases, evidence adequately supports a conviction if, viewing it
in the light most favorable to the prosecution, "any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). We
therefore confine reversal of a conviction on grounds of insufficient
evidence "to cases where the prosecution’s failure is clear." Burks v.
United States, 437 U.S. 1, 17 (1978).
However, "[i]t is a settled principle of the administration of crimi-
24 UNITED STATES v. ALI
nal justice in the federal courts that a conviction must rest upon firmer
ground than the uncorroborated admission or confession of the
accused" made after commission of a crime. Wong Sun, 371 U.S. at
488-89. This is so because "the doubt persists that the zeal of the
agencies of prosecution to protect the peace . . . or the aberration or
weakness of the accused under the strain of suspicion may tinge or
warp the facts of the confession." Opper v. United States, 348 U.S.
84, 89-90 (1954). Thus, courts require corroboration to prevent con-
fessions to crimes never committed and "convictions based upon
untrue confessions alone." Warszower v. United States, 312 U.S. 342,
347 (1941).8 Still, the Supreme Court has cautioned that since this
corroboration rule "infringe[s] on the province of the primary finder
of facts, its application should be scrutinized lest the restrictions it
imposes surpass the dangers which gave rise to them." Smith v.
United States, 348 U.S. 147, 153 (1954).
At one time, courts and commentators disagreed as to the amount
and quality of corroboration required. Some mandated that corrobora-
tion provide independent proof of the corpus delicti, or of commis-
sion of a crime; others followed a more flexible "trustworthiness"
approach. In Opper, the Supreme Court resolved this question for fed-
eral courts by rejecting the corpus delicti rule and adopting the trust-
worthiness approach, which it found to be the "better rule." 348 U.S.
at 93. Pursuant to this rule, the government must "introduce substan-
8
Abu Ali also maintains that the district court erred when it failed to
instruct the jury on the need for corroboration. Because he never
requested such an instruction, we can reverse on this ground only if he
meets the rigorous plain error standard. See United States v. Olano, 507
U.S. 725, 732 (1993) (holding that to demonstrate plain error a defendant
must show plain error, that the error affected his substantial rights, and
that failure to recognize the error would "seriously affect[ ] the fairness,
integrity or public reputation of judicial proceedings" (internal quotation
marks omitted)). Abu Ali cannot begin to demonstrate plain error given
that a number of our sister circuits have held that a court need not
instruct juries on the corroboration rule, even if requested to do so. See,
e.g., United States v. Howard, 179 F.3d 539, 543 (7th Cir. 1999); United
States v. Dickerson, 163 F.3d 639, 641-43 (D.C. Cir. 1999); United
States v. Singleterry, 29 F.3d 733, 739 (1st Cir. 1994). Contrary to Abu
Ali’s argument, United States v. Booker, 543 U.S. 220 (2005), does not
in any way undermine these holdings.
UNITED STATES v. ALI 25
tial independent evidence which would tend to establish the trustwor-
thiness of the [defendant’s] statement." Id. But this "corroborative
evidence need not be sufficient, independent of the [defendant’s
incriminatory] statements, to establish the corpus delicti." Id.; see
also Wong Sun, 371 U.S. at 489 (noting "extrinsic proof [i]s sufficient
which merely fortifies the truth of the confession, without indepen-
dently establishing the crime charged" (internal quotation marks omit-
ted)).
Independent evidence adequately corroborates a confession if it
"supports the essential facts admitted sufficiently to justify a jury
inference of their truth;" the facts admitted "plus the other evidence
besides the admission must, of course, be sufficient to find guilt
beyond a reasonable doubt." Opper, 348 U.S. at 93. Thus, "corrobora-
tive evidence does not have to prove the offense beyond a reasonable
doubt, or even by a preponderance, as long as there is substantial
independent evidence that the offense has been committed, and the
evidence as a whole proves beyond a reasonable doubt that [the]
defendant is guilty." Smith, 348 U.S. at 156. The government must
establish each element of an offense but may do so "by independent
evidence or corroborated admissions," and one "mode of corrobora-
tion is for the independent evidence to bolster the confession itself
and thereby prove the offense through the statements of the accused."
Id. (emphasis added).
With these principles in mind, we consider the case at hand.
B.
Undoubtedly, Abu Ali’s own repeated confessions provide the
strongest evidence of his guilt. Orally and in writing on several occa-
sions, he confessed that he joined an al-Qaeda cell in Saudi Arabia
and plotted with Sultan Jubran, al-Faq’asi, and others to engage in
jihad and commit terrorist acts against the United States, including
assassinating the President and other officials, hijacking and blowing
up American warplanes, and striking nuclear stations. To further these
plans, Abu Ali related that he moved from his university dormitory
to al-Qaeda safehouses, translated into Arabic a video clip of Ameri-
can pilots attacking Afghanistan, received training in weapons, explo-
sives, forgery, and intelligence gathering, and researched on the
26 UNITED STATES v. ALI
internet nuclear facilities and airline flights. He described weapons
and explosives stored at the safehouses and he admitted that al-
Faq’asi gave him money to buy a laptop computer, cellphone, books,
and written materials on security and concealment to further terrorist
activities.9
Without testimony from Abu Ali’s co-conspirators, the government
relied largely on circumstantial evidence to corroborate Abu Ali’s
confessions. The Supreme Court has long recognized that circumstan-
tial evidence can provide the basis for criminal convictions. See Hol-
land v. United States, 348 U.S. 121, 137-38 (1954). Similarly, courts
have held that a confession may be corroborated by circumstantial
evidence. See United States v. Chimal, 976 F.2d 608, 611 (10th Cir.
1992); United States v. Grizales, 859 F.2d 442, 446 (7th Cir. 1988);
United States v. Baker, 293 F.2d 613, 616-17 (3d Cir. 1961).
The government offered significant independent circumstantial evi-
dence tending to establish the trustworthiness of Abu Ali’s confes-
sions. For example, the government offered evidence recovered by
Saudi authorities at the al-Qaeda safehouses, including a translation
from English to Arabic of a conversation between American pilots,
documents containing two of Abu Ali’s aliases (Hani and Hanimo-
hawk), and photographs of the various weapons, explosives, cell
phones, computers, and walkie-talkies found in the safehouse, all of
which Abu Ali had described. Jihad literature and address books con-
taining the names and e-mail address of an al-Qaeda leader, a GPS
device, a walkie-talkie, a handgun magazine, a cellphone, and other
items found in Abu Ali’s dormitory room in Medina or in his Falls
9
Abu Ali’s confessions contain remarkable detail, but we reject the
government’s suggestion that this detail might suffice to confirm their
trustworthiness. The Supreme Court permits no exception to the rule that
corroboration evidence must be independent when an "admission is made
after the fact to an official charged with investigating the possibility of
wrongdoing and the statement embraces an element vital to the Govern-
ment’s case." Smith, 348 U.S. at 155. Similarly, we do not rely on Abu
Ali’s numerous confessions to corroborate each other. See United States
v. Calderon, 348 U.S. 160, 165 (1954) (noting a later admission "stand-
ing uncorroborated cannot serve to corroborate [defendant’s] other
admissions").
UNITED STATES v. ALI 27
Church home similarly tended to establish the trustworthiness of his
admissions that he had long wanted to join al-Qaeda, to further its
goals, and to provide it support and assistance. The government also
offered evidence that an al-Qaeda cell member identified Abu Ali as
a member of the cell.
Perhaps the strongest independent evidence corroborating Abu
Ali’s confessions were two coded communications: one from him to
Sultan Jubran occurring a day after the arrest of other cell members
and the other from Sultan Jubran to him several days later. Abu Ali
communicated that he had "heard the news about the children’s sick-
ness," wished them "a speedy recovery," and offered "[g]reetings to
the group." Sultan Jubran responded that he had been "saved from the
accident" but had "no idea about the others," and cautioned Abu Ali
to prepare himself for a "medical checkup . . . soon." The government
argued and the jury could infer that these communications constituted
messages between al-Qaeda conspirators — Abu Ali bemoaning the
capture of some of his fellow al-Qaeda members and wishing others
well, and Sultan Jubran reporting that he had escaped capture and
warning Abu Ali that he might face arrest "soon."
This independent evidence renders the case at hand very different
from the three cases on which Abu Ali heavily relies. See United
States v. Stephens, 482 F.3d 669 (4th Cir. 2007); United States v.
Bryce, 208 F.3d 346 (2d Cir. 2000); United States v. Fearn, 589 F.2d
1316 (7th Cir. 1978). In each of those cases the courts reversed con-
victions because the defendant’s confessions or admissions consti-
tuted the only evidence linking him to criminal conduct. See Stephens,
482 F.3d at 672 (noting the government presented "no evidence other
than [defendant’s] statement to establish his connection to a drug con-
spiracy or any drug trafficking crime"); Bryce, 208 F.3d at 356 (not-
ing the "absence of corroboration by independent evidence"); Fearn,
589 F.2d at 1326 (holding that "[t]here was no substantial, or even
slight evidence, other than the admission . . . which tended to show
that the defendant was guilty beyond a reasonable doubt").
Abu Ali’s argument that, despite the substantial independent evi-
dence outlined above, the government did not provide adequate cor-
roboration for his confessions, largely rests on a misunderstanding of
the role of corroborative evidence. He asserts that the corroborative
28 UNITED STATES v. ALI
evidence here is inadequate because it "failed to introduce evidence
that established the ‘essential facts admitted [by Abu Ali] sufficiently
to justify a jury inference of their truth.’" (quoting Opper, 348 U.S.
at 93) (alteration in original) (emphasis added). Abu Ali quotes Opper
accurately, but out of context. In fact, the Opper Court instructed that
"[i]t is sufficient if the corroboration supports" — not establishes —
"the essential facts admitted," and that corroboration need only "tend
to establish" — not establish — "the trustworthiness" of the confes-
sion. 348 U.S. at 93 (emphasis added). The evidence offered by the
government meets this standard.
To be sure, the independent evidence does not prove Abu Ali’s
guilt of any crime, but this is not necessary. In his own statements,
Abu Ali confessed to committing each of the crimes charged.10
"[E]xtrinsic proof [i]s sufficient which merely fortifies the truth of the
confession[s], without independently establishing the crime charged."
Wong Sun, 371 U.S. at 489 (quoting Smith, 348 U.S. at 156). The
independent evidence offered by the government did just that. This
independent evidence, including the translation, documents, and
books found in the Saudi safehouses and in Abu Ali’s Saudi dorm
room and Virginia home, "tend[s] to establish the trustworthiness" of
his confession that he intended to and did contribute services to al-
Qaeda, receive funds from al-Qaeda, and provide material support to
terrorists and a designated foreign terrorist group, i.e. al-Qaeda, and
thus supports the jury’s conviction of him for these four substantive
offenses.
10
For this reason, Abu Ali’s alternative contention — that no evidence
establishes his guilt of conspiracy to assassinate the President, conspiracy
to provide material support to terrorists, or providing material support to
terrorists — fails. Considered in the light most favorable to the govern-
ment, his confessions provide substantial evidence that he conspired to
and did provide material support to terrorists. As to the charge of con-
spiracy to assassinate the President, Abu Ali maintains that the evidence
against him on this charge only constitutes "ideation" and not conduct.
Actually, the government offered evidence that Abu Ali confessed that
he had long been determined to kill the President, discussed with al-
Faq’asi particular ways to carry out the assassination, and engaged in
explosive and intelligence training to carry out the assassination — sug-
gesting that the conspiracy to assassinate the President constituted much
more than Abu Ali’s "ideation" at the time of his confession.
UNITED STATES v. ALI 29
The remaining five convictions involved conspiracy with other
members of al-Qaeda — including Sultan Jubran — to assassinate the
President, commit air piracy, destroy aircraft, and provide material
support to terrorists and to a designated foreign terrorist organization.
Agreement between conspirators often presents difficult proof prob-
lems for the government. See Iannelli v. United States, 470 U.S. 770,
778 n.10 (1975); Scales v. United States, 367 U.S. 203, 226 n.18
(1961); see also United States v. Burgos, 94 F.3d 849, 857-58 (4th
Cir. 1996). Here, however, the government’s independent evidence —
the coded communications between Abu Ali and Sultan Jubran —
supported Abu Ali’s account of a conspiracy among al-Qaeda cell
members "sufficiently to justify a jury inference" as to the truth of
that account. Opper, 348 U.S. at 93.
In sum, we believe the government presented sufficient indepen-
dent evidence to "fortif[y]" the truth of Abu Ali’s confessions, Wong
Sun, 371 U.S. at 489, and to "tend to establish" their "trustworthi-
ness," thus "justify[ing] a jury inference of their truth" beyond a rea-
sonable doubt. Opper, 348 U.S. at 93.
IV.
We next address Abu Ali’s claim that the taking of the depositions
of the Saudi Mabahith officials in Riyadh violated his Sixth Amend-
ment Confrontation Clause rights.11 We hold that the procedures
developed by the district court to meet the extraordinary circum-
stances of this case adequately protected Abu Ali’s Sixth Amendment
rights. We therefore reject his claim.
11
Although Abu Ali raises no claim under Fed. R. Crim. P. 15, he does
use the Rule to inform his Confrontation Clause argument. As to Rule
15, we note simply that many circuits have allowed into evidence Rule
15 depositions of foreign witnesses taken without the defendant present.
See United States v. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998); United
States v. McKeeve, 131 F.3d 1, 8 (1st Cir. 1997); United States v. Gif-
ford, 892 F.2d 263, 265 (3d Cir. 1989); United States v. Salim, 855 F.2d
944, 952 (2d Cir. 1988).
30 UNITED STATES v. ALI
A.
We briefly summarize the facts relevant to his Confrontation
Clause claim here. On June 8, 2003, the Mabahith arrested Abu Ali
on suspicion that he was a member of the al-Faq’asi terrorist cell.
Soon after his detention, Abu Ali confessed to his involvement with
the cell when confronted with the fact that several other detained cell
members had identified him. On July 18, 2003, while still in Saudi
custody, Abu Ali wrote a handwritten confession which he was video-
taped reading on July 24, 2003. The government offered both Abu
Ali’s handwritten and videotaped confessions as evidence at trial.
Abu Ali argued that he was tortured by the Mabahith and that his
confessions were therefore involuntary. In depositions taken pursuant
to Rule 15 of the Federal Rules of Criminal Procedure, Abu Ali’s two
principal interrogators both denied that they had ever tortured Abu Ali
or were aware of any other Saudi government official engaging in
such behavior. Transcripts of this testimony were made part of the
record in the district court’s hearing on Abu Ali’s motion to suppress
his confession and a videotape of the deposition (as redacted pursuant
to the court’s order) was played at trial and made part of the trial
record.
B.
Abu Ali claims that his Sixth Amendment Confrontation Clause
right was violated because he was not physically present when the
Rule 15 depositions of the Mabahith officers were taken. Since the
government planned to introduce the depositions at trial, Abu Ali
claims that he should have been physically present when the
Mabahith officers were deposed. This argument is premised on the
well-accepted notion that "eye-to-eye" contact between the accused
and his accuser is more likely to lead to the truth. See Coy v. Iowa,
487 U.S. 1012, 1019-20 (1988) ("It is always more difficult to tell a
lie about a person ‘to his face’ than ‘behind his back.’").
Abu Ali’s absence at the Rule 15 deposition was the result of the
logistical arrangements the trial court made to deal with the practical
difficulties of securing testimony from the Mabahith officers. As
Saudi citizens who reside in Saudi Arabia, the Mabahith officers were
UNITED STATES v. ALI 31
beyond the subpoena power of the district court. Given this limitation,
the United States government officially inquired into whether the
Saudi Arabian government would allow the officers to testify at trial
in the United States. The Saudi government denied this request, but
permitted the officers to sit for depositions in Riyadh. As represented
by counsel for the United States, this was a first in Saudi-American
relations: the Saudi government had never before allowed such for-
eign access to a Mabahith officer.
Given the possibility of taking the deposition in Riyadh, the district
court found it impractical for Abu Ali to travel to Saudi Arabia for
two reasons. First, it would have been difficult for United States Mar-
shals to maintain custody of Abu Ali while in Saudi Arabia. See Med-
juck, 156 F.3d at 920 (noting that there was no mechanism in place
for United States authorities to ensure the defendant’s return in a
"timely fashion" from a foreign deposition); McKeeve, 131 F.3d at 7
(noting that the United States lacks authority to keep a suspect in cus-
tody overseas); Salim, 855 F.2d at 947 (2d Cir. 1988) (same). Second,
the fact that Abu Ali committed his offenses in Saudi Arabia might
subject him to prosecution overseas, complicating — if not precluding
— his return to the United States to face trial. See Medjuck, 156 F.3d
at 920 n.2. In fact, the government represented at oral argument that
Abu Ali never asked the district court to allow him to travel to Saudi
Arabia for the depositions, and we find no evidence in the record to
dispute this claim.
Given these practical difficulties — witnesses who could only tes-
tify in Saudi Arabia and a defendant unable to go to Saudi Arabia —
the trial court attempted to fashion deposition procedures that would
best preserve Abu Ali’s Confrontation Clause right. At the court’s
directive, two defense attorneys, including Abu Ali’s lead attorney,
attended the depositions in Saudi Arabia, while a third attorney sat
with Abu Ali in Virginia. Two attorneys for the government and a
translator were also present in the room in Saudi Arabia while the
Mabahith officers were being deposed.
A live, two-way video link was used to transmit the proceedings
to a courtroom in Alexandria. This permitted Abu Ali and one of his
attorneys to see and hear the testimony contemporaneously; it also
allowed the Mabahith officers to see and hear Abu Ali as they testi-
32 UNITED STATES v. ALI
fied. A court reporter in Alexandria transcribed the testimony in real
time, and both the witnesses and Abu Ali were videotaped during the
depositions, so that the jury could see their reactions. The trial court
presided over the deposition testimony of the Mabahith officials from
the courtroom in Alexandria, ruling on objections as they arose. Fur-
thermore, Abu Ali was able to communicate via cell phone with his
defense counsel in Saudi Arabia during the frequent breaks in the pro-
ceedings. In addition, the court was willing to stop the depositions if
Abu Ali’s counsel in Saudi Arabia wanted to consult with their client.
Having fashioned these procedures, the district court presided over
seven days of deposition testimony from several Saudi Mabahith offi-
cers involved in the arrest, detention, and interrogation of Abu Ali.
The subject matter of the depositions encompassed all aspects of Abu
Ali’s experience with the Saudi criminal justice system, including the
manner of his arrest, the length of his interrogation, the conditions of
his confinement, the Mabahith’s methods of questioning, and the cir-
cumstances surrounding his confessions.
Of critical importance was the testimony of two Saudi government
officials, a Brigadier General and a Captain in the Mabahith, who pre-
sided over the interrogation of Abu Ali. These officers stated that Abu
Ali was not blindfolded, handcuffed, or shackled in any way during
his interrogation, and that he was provided with food, water, and
access to a bathroom during breaks in questioning. Both the Brigadier
General and the Captain adamantly denied that they directed, partici-
pated in, or were aware of any government official using physical
force or psychological coercion against Abu Ali.
Abu Ali’s counsel actively participated throughout these deposi-
tions, objecting frequently during the government’s direct examina-
tion and cross-examining each of the witnesses at length. In
particular, Abu Ali’s counsel were able to question the interrogating
officers about Abu Ali’s claims that he was tortured and beaten;
deprived of sleep, food, and water; and denied use of a bathroom and
mattress.
C.
The Confrontation Clause of the Sixth Amendment provides that
"[i]n all criminal prosecutions, the accused shall enjoy the right . . .
UNITED STATES v. ALI 33
to be confronted with the witnesses against him." U.S. Const. amend.
VI. This clause traditionally affords "the defendant a face-to-face
meeting with witnesses appearing before the trier of fact." Coy, 487
U.S. at 1016. However, the right of the defendant to physically con-
front the witnesses against him is not absolute.
In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court
held that a district court may constitutionally admit testimony taken
in the physical absence of the defendant so long as two conditions are
met. Id. at 850. First, the denial of "face-to-face confrontation" must
be "necessary to further an important public policy." Id. Second, the
district court must ensure that protections are put in place so that "the
reliability of the testimony is otherwise assured." Id. We find that
both of Craig’s conditions are satisfied in this case.
First, the Supreme Court has long acknowledged that "no govern-
mental interest is more compelling than the security of the Nation."
Haig v. Agee, 453 U.S. 280, 307 (1981); see also United States v.
Moussaoui, 382 F.3d 453, 470 (4th Cir. 2004). The continuing threat
of international terrorism highlights the importance of this interest:
the "government has no more profound responsibility than the protec-
tion of Americans, both military and civilian, against additional
unprovoked attack." Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir.
2002). This case — in which the defendant is charged with crimes tar-
geting American civilians and the President of the United States —
plainly implicates this vital interest. This is not to suggest that a gen-
eralized interest in law enforcement is sufficient to satisfy the first
prong of Craig. Craig plainly requires a public interest more substan-
tial than convicting someone of a criminal offense. The prosecution
of those bent on inflicting mass civilian casualties or assassinating
high public officials is, however, just the kind of important public
interest contemplated by the Craig decision.
Insistence on face-to-face confrontation may in some circum-
stances limit the ability of the United States to further its fundamental
interest in preventing terrorist attacks. It is unquestionable that the
struggle against terrorism is one of global dimension and that the
United States depends upon its allies for logistical support and intelli-
gence in this endeavor. This cooperation can result in foreign officials
possessing information vital to prosecutions occurring in American
34 UNITED STATES v. ALI
courts. If the government is flatly prohibited from deposing foreign
officials anywhere but in the United States, this would jeopardize the
government’s ability to prosecute terrorists using the domestic crimi-
nal justice system.
Thus, the district court reasonably determined that it was necessary
in this case for the Mabahith officers to testify without the defendant
physically present. Given the Saudi government’s insistence that the
Mabahith officers could only testify in Saudi Arabia and given that
the defendant, for reasons of security or personal volition, could not
travel overseas, requiring face-to-face confrontation here would have
precluded the government from relying on the Saudi officers’ impor-
tant testimony. This would, to put it mildly, have greatly hindered
efforts to prosecute the defendant, because the circumstances sur-
rounding the confession bore crucially on any jury assessment of its
voluntariness. The Sixth Amendment is not so inflexible as to require
this outcome. See Mattox v. United States, 156 U.S. 237, 243 (1895)
(noting that "[t]he law in its wisdom declares that the rights of the
public shall not be wholly sacrificed in order that an incidental benefit
may be preserved to the accused").
The second prong of the Craig test requires a district court to make
certain that, absent face-to-face confrontation, "the reliability of the
testimony is otherwise assured." Craig, 497 U.S. at 850. In Craig, the
Court provided a blueprint on how to satisfy this requirement when
it noted that "the presence of [the] other elements of confrontation —
oath, cross-examination, and observation of the witness’ demeanor —
adequately ensure[ ] that the testimony is both reliable and subject to
rigorous adversarial testing in a manner functionally equivalent to that
accorded live, in-person testimony." Id. at 851.
These "other elements" are present here. First, the Saudi witnesses
testified under oath. While the oath used in this case, at the suggestion
of defense counsel, was apparently an oath used in the Saudi criminal
justice system, we cannot conclude, without more, that such an oath
failed to serve its intended purpose of encouraging truth through
solemnity. The oath used here was similar in most respects to the oath
used in American judicial proceedings, and the appellant raised no
objection to the oath in his briefs. Second, as discussed earlier,
defense counsel was able to cross-examine the Mabahith witnesses
UNITED STATES v. ALI 35
extensively. Finally, the defendant, judge, and jury were all able to
observe the demeanor of the witnesses. Both the defendant and the
judge were able to view the witnesses as they testified via two-way
video link, and the jury watched a videotape of the deposition at trial.
This videotape presented side-by-side footage of the Mabahith offi-
cers testifying and the defendant’s simultaneous reactions to the testi-
mony.
In fact, the procedures used in this case were in some ways more
protective of the defendant’s interests than those used in Craig. While
the Court in Craig approved the use of one-way video testimony, see
Craig, 497 U.S. at 860, the depositions in this case were taken via a
two-way video link. This two-way link meant that the witnesses were
able to view the defendant as they testified, a protection not present
in Craig. See United States v. Gigante, 166 F.3d 75, 81 (2d Cir.
1999).
The defendant argues, however, that the lack of any contemporane-
ous phone link with counsel hindered his ability to contribute mean-
ingfully to the cross-examination of the witnesses. The record does
not support this assertion. Defense counsel was able to cross-examine
the witnesses at length. Moreover, the district court took frequent
breaks during the depositions, at which time the defendant was free
to talk with his counsel via cellular telephone. Finally, the court was
willing to allow defense counsel to stop their cross-examination in
order to conference with their client in private. There is simply no
evidence in the record that would lead this court to conclude that the
defendant did not have a constitutionally sufficient chance to cross-
examine the Mabahith witnesses.
Given this, we also reject the defendant’s claim that his inability
to discuss the deposition contemporaneously with his attorney in
Saudi Arabia violated his Sixth Amendment right to effective assis-
tance of counsel. Defendant points to no deficiency in his counsel’s
performance, see Strickland v. Washington, 466 U.S. 668, 687 (1984),
which is unsurprising in light of his attorney’s aggressive participa-
tion during both direct examination (through frequent objections) and
cross-examination of the Mabahith officers. Furthermore, defendant’s
contention that he was denied "unrestricted access to his lawyer" for
advice, see Perry v. Leeke, 488 U.S. 272, 284 (1989), citing Geders
36 UNITED STATES v. ALI
v. United States, 425 U.S. 80, 88 (1976), is without merit. In addition
to the opportunities for consultation with his counsel in Saudi Arabia,
defendant was accompanied by counsel in the United States.
We thus find there to be no violation of the Confrontation Clause
under Craig. The district court properly found that logistical and
international necessities required the Mabahith officials to testify
without the defendant present in order to further the government’s
undoubted national security interests. Furthermore, the procedures
designed by the district court to replicate the "rigorous adversarial
testing" present in a face-to-face confrontation plainly meet the reli-
ability prong of Craig.12
D.
None of this diminishes the fact that face-to-face confrontation is
a critical component of the defendant’s Sixth Amendment right. But
district judges are sometimes challenged to make the best of unprece-
dented circumstances. The context here was certainly unusual: the
Mabahith officers were beyond the court’s subpoena power and the
12
Despite Abu Ali’s assertions to the contrary, the Eleventh Circuit’s
recent en banc decision in United States v. Yates, 438 F.3d 1307 (11th
Cir. 2006) (en banc), does not support a different holding. In Yates, a
divided court held that a defendant was unconstitutionally deprived of his
confrontation rights when a witness was allowed to testify at trial via live
two-way video conference from Australia. See id. at 1310, 1319. What-
ever the merits of the holding in Yates, the defendants there were charged
with mail fraud, conspiracy to commit money laundering, and drug-
related offenses, see id. at 1310, crimes different in both kind and degree
from those implicating the national security interests here.
Furthermore, the Eleventh Circuit’s refusal to find necessity was the
direct result of the district court’s failure to consider potential alterna-
tives that would have enabled the witnesses to testify face-to-face with
the defendant. In particular, the Eleventh Circuit questioned why the dis-
trict court made no "case-specific finding that the witnesses and the
Defendants could not be placed in the same room for the taking of pre-
trial deposition testimony pursuant to Rule 15." Id. at 1317. Of course,
in this case the testimony of the Mabahith officers was taken in a Rule
15 deposition, using procedures specially designed by the district court
to deal specifically with the necessities of this case.
UNITED STATES v. ALI 37
Saudi government was decidedly reluctant to allow them to come to
the United States. The defendant, in turn, was not eager to go to Saudi
Arabia, and, in any event, there were significant risks associated with
him doing so.
There was no clear roadmap here, and Craig anticipates that a rea-
sonable balance must be struck. Given the limitation that face-to-face
confrontation between the defendant and the Saudi officers was not
feasible, the trial judge fashioned confrontation procedures that pre-
served the defendant’s constitutional right to the maximum extent
possible. The trial court’s conscientious effort infringed no Sixth
Amendment right.
V.
Abu Ali raises various additional claims which we resolve summa-
rily.
First, Abu Ali contends that the government’s closing argument
improperly denied him a fair trial. During his summation, the prose-
cutor twice referred to the potential victims of Abu Ali’s planned ter-
rorist actions in the first person plural, saying that Abu Ali was
planning to "kill" or "hurt us." Abu Ali contends that this formulation
improperly placed the jurors in the class of people who could be
harmed by Abu Ali’s actions and improperly aligned the prosecutor
with the jury as a potential victim.
We hold that the prosecutor’s closing argument was not improper.
Each side deserves latitude in the presentation of its closing remarks
and courts do not exist to superintend these arguments. See United
States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (noting that pro-
secutorial misconduct is only unconstitutional if it "so infect[s] the
trial with unfairness as to make the resulting conviction a denial of
due process") (internal quotation marks omitted). Taken in context,
the prosecutor’s comments were not directed to the jurors personally
and were intended to refer to the entire American populace. More-
over, the prosecutor’s remarks were isolated and partly in response to
the defense’s own closing. And, even if the prosecutor’s comments
were improper, which we do not intimate, there is little possibility,
given the strength of the government’s evidence, that two brief com-
38 UNITED STATES v. ALI
ments could have had a disproportionate effect on the jury’s verdict.
We thus reject the defendant’s claim.
Next, Abu Ali argues that the Special Administrative Measures
(SAMs) imposed on him constitute an improper additional sentence.
SAMs are restrictions placed on a prisoner in the interests of national
security: in this case, the Attorney General recommended that Abu
Ali be denied access to the mail, the media, the telephone, and visitors
so that he could not communicate, either directly or indirectly, with
terrorists outside the jail. Abu Ali contends that the imposition of
these SAMs was based solely on his offense of conviction, and, there-
fore, invalid, since the courts have the exclusive right to impose a sen-
tence on the defendant.
We do not have jurisdiction to consider this claim. Federal regula-
tions prescribe a mechanism by which inmates may appeal SAMs, see
28 C.F.R. § 501.3(e), and, as the district court found, the defendant
has not yet taken advantage of this mechanism, see United States v.
Ali, 396 F. Supp. 2d 703, 707 (E.D. Va. 2005). The defendant must
exhaust his administrative remedies before challenging the SAMs in
federal court. See United States v. Yousef, 327 F.3d 56, 165 (2d Cir.
2003); Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001).
Finally, Abu Ali contests the sufficiency of the evidence to support
his convictions on Counts Three, Four, and Seven. Counts Three and
Four charge Abu Ali with conspiracy to provide, and the actual provi-
sion of, material support and resources to terrorists. Count Seven
charges Abu Ali with conspiracy to assassinate the President of the
United States.
We owe deference to a jury’s verdict when reviewing the suffi-
ciency of the evidence: a "conviction[ ] must be upheld if ‘there is
substantial evidence, taking the view most favorable to the Govern-
ment,’ to support [it]." United States v. Moye, 454 F.3d 390, 394 (4th
Cir. 2006) (en banc) (quoting Glasser v. United States, 315 U.S. 60,
80 (1942)). For this inquiry, substantial evidence is defined as "evi-
dence that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a rea-
sonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc).
UNITED STATES v. ALI 39
In light of this standard, we reject appellant’s claim. The relevant
counts were submitted to the jury under proper instructions delineat-
ing their elements and appellant raises no question about the adequacy
of those instructions here. We have reviewed the various counts and
we find that there exists sufficient evidence to support the jury’s ver-
dict. The discussion undertaken earlier in this opinion reveals that the
jury had before it the evidence needed to render a just and proper ver-
dict in this case.
VI.
Abu Ali also challenges the district court’s handling of certain clas-
sified information under the provisions of the Classified Information
Procedures Act ("CIPA"), 18 U.S.C.App. 3, §§ 1-16 (West 2000 &
Supp. 2007).13 Abu Ali’s primary contention is that the district court
violated his Sixth Amendment Confrontation Clause rights by admit-
ting as evidence unredacted versions of two classified documents that
Abu Ali had only been permitted to view in a redacted form, and by
refusing to allow Abu Ali and his lead trial counsel to attend and par-
ticipate in the hearings conducted under CIPA to discuss the classified
evidence. Additionally, Abu Ali challenges the district court’s denial
of his post-trial motion to compel the government to disclose whether
the National Security Agency’s warrantless electronic surveillance
program, commonly referred to as the Terrorist Surveillance Program,
resulted in any interceptions used in the investigation or prosecution
of him.
A.
The Sixth Amendment guarantees that "[i]n all criminal prosecu-
tions, the accused shall enjoy . . . the right to be confronted with the
witnesses against him." U.S. Const. amend. VI. Its "main and essen-
tial purpose . . . is to secure for the opponent the opportunity of cross-
examination." Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986).
However, the right "means more than being allowed to confront the
witness physically." Id. "[T]he principal evil at which the Confronta-
tion Clause was directed was the civil-law mode of criminal proce-
13
These issues were separately raised via classified briefs and argued
in closed proceedings before this panel.
40 UNITED STATES v. ALI
dure, and particularly its use of ex parte examinations as evidence
against the accused." Crawford v. Washington, 541 U.S. 36, 54
(2004). Thus, while this is not the ordinary case, we think the criminal
defendant’s right to confront witnesses necessarily encompasses his
right to also see any documentary evidence that such witnesses offer
at trial as evidence to support a conviction. Cf. Abourezk v. Reagan,
785 F.2d 1043, 1060 (D.C. Cir. 1986) ("It is a hallmark of our adver-
sary system that we safeguard party access to evidence tendered in
support of a requested court judgment. The openness of judicial pro-
ceedings serves to preserve both the appearance and the reality of
fairness in the adjudications of United States courts. It is therefore the
firmly held main rule that a court may not dispose of the merits of a
case on the basis of ex parte, in camera submissions.").
A defendant’s right to see the evidence that is tendered against him
during trial, however, does not necessarily equate to a right to have
classified information disclosed to him prior to trial. Evidentiary priv-
ileges may serve as valid bases to block the disclosure of certain types
of evidence, and the validity of such privileges may be tested by in
camera and ex parte proceedings before the court "for the limited pur-
pose of determining whether the asserted privilege is genuinely appli-
cable." Id. As a general rule, "[i]f the court finds that the claimed
privilege does not apply, then the other side must be given access to
the information." Id. If the court finds that the privilege does apply,
then it may preclude access to the information. But neither scenario
results in the conviction of a defendant "based upon evidence he was
never permitted to see and to rebut." Id.
In the area of national security and the government’s privilege to
protect classified information from public disclosure, we look to
CIPA for appropriate procedures. See United States v. Mejia, 448
F.3d 436, 455 (D.C. Cir. 2006) (noting that CIPA was "intended to
clarify a court’s existing powers under Federal Rule of Criminal Pro-
cedure 16(d)(1) to protect classified information" (internal quotation
marks omitted)). "‘CIPA creates no new rule of evidence regarding
admissibility,’" but "‘the procedures it mandates protect a government
privilege in classified information.’" Id. (quoting United States v.
Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989)).
Originally "enacted by Congress in an effort to combat the growing
problem of graymail, a practice whereby a criminal defendant threat-
UNITED STATES v. ALI 41
ens to reveal classified information during the course of his trial in the
hope of forcing the government to drop the charge against him,"
United States v. Smith, 780 F.2d 1102, 1105 (4th Cir. 1985) (footnote
omitted), CIPA establishes procedures to protect classified informa-
tion from public disclosure, including disclosure to a defendant and
his counsel if they do not possess the requisite security clearance.
Prior to CIPA, "the government had no method of evaluating such
disclosure claims before trial actually began" and "[o]ftentimes . . .
would abandon prosecution rather than risk possible disclosure of
classified information." Id. "CIPA establishes procedures for making
decisions about the use of such information." United States v. Fernan-
dez, 913 F.2d 148 (4th Cir. 1990) (internal quotation marks and alter-
ation omitted).
B.
Classified information, as defined by CIPA, includes "any informa-
tion or material that has been determined by the United States Gov-
ernment pursuant to an Executive order, statute, or regulation, to
require protection against unauthorized disclosure for reasons of
national security." 18 U.S.C.App. 3, § 1. In order to protect against
such disclosure, § 4 of CIPA directs that "[t]he court, upon a suffi-
cient showing, may authorize the United States to delete specified
items of classified information from documents" produced to the
defendant, "substitute a summary of the information for such classi-
fied documents," or "substitute a statement admitting relevant facts
that the classified information would tend to prove." 18 U.S.C.App.
3, § 4. Section 4 also allows the United States to request such an
authorization by ex parte written statement. See id.14
If the defendant seeks the disclosure of classified information in
pretrial or trial proceedings, the provisions of § 5 of CIPA come into
play. The defendant must notify the government’s attorney and the
court in writing of any intention to disclose such information and is
14
"If the court enters an order granting relief following such an ex parte
showing, the entire text of the statement of the United States shall be
sealed and preserved in the records of the court to be made available to
the appellate court in the event of an appeal," 18 U.S.C.App. 3 § 4, as
was done in this case.
42 UNITED STATES v. ALI
prohibited from disclosing the information until "the United States
has been afforded a reasonable opportunity to seek determination pur-
suant to the procedure set forth in section 6 of [CIPA]," and to appeal
any adverse ruling. Id. At the § 6 hearing, the district court considers
the government’s objections to "the use, relevance, or admissibility of
classified information that would otherwise be made during the trial
or pretrial proceeding" and must hold the hearing "in camera if the
Attorney General certifies to the court . . . that a public proceeding
may result in the disclosure of classified information." 18 U.S.C.App.
3, § 6(a). The district court may order the use of a substitution in the
form of "a statement admitting relevant facts that the specific classi-
fied information would tend to prove" or "a summary of the specific
classified information," provided the substitution "will provide the
defendant with substantially the same ability to make his defense as
would disclosure of the specific classified information." 18
U.S.C.App. 3, § 6(c)(1). Hearings to determine use of a substitution
must also "be held in camera at the request of the Attorney General,"
id., and affidavits submitted by the Attorney General "certifying that
disclosure of classified information would cause identifiable damage
to the national security of the United States and explaining the basis
for the classification of such information" must be examined by the
court "in camera and ex parte" when "requested by the United States."
Id. at § 6(c)(2).15
Section 8 of CIPA provides procedures for the introduction of clas-
sified information into evidence at trial, providing that "[t]he court, in
order to prevent unnecessary disclosure of classified information
involved in any criminal proceeding, may order admission into evi-
dence of only part of a [document], or may order admission into evi-
dence of the whole [document] with excision of some or all of the
classified information contained therein, unless the whole ought in
fairness be considered." 18 U.S.C.App. 3, § 8(b). It also affords the
district court the latitude to monitor the examination of witnesses to
15
The records of such in camera hearings shall also "be sealed and pre-
served by the court for use in the event of an appeal." 18 U.S.C.App. 3,
§ 6(d).
UNITED STATES v. ALI 43
"safeguard against the compromise of [the] classified information." 18
U.S.C.App. § 8(c).16
As these provisions demonstrate, CIPA vests district courts with
wide latitude to deal with thorny problems of national security in the
context of criminal proceedings. When evaluating the governmental
privilege in classified information which CIPA serves to protect, how-
ever, district courts must ultimately balance this "public interest in
protecting the information against the individual’s right to prepare his
defense." Smith, 780 F.2d at 1105 (adopting test applied to the "infor-
mant’s privilege" in Roviaro v. United States, 353 U.S. 53, 62 (1957)
as appropriate one to evaluate the government’s classified information
privilege); see also Mejia, 448 F.3d at 455 (same). "The government
has a substantial interest in protecting sensitive sources and methods
of gathering information." Smith, 780 F.2d at 1108; cf. CIA v. Sims,
471 U.S. 159, 175 (1985) ("The government has a compelling interest
in protecting both the secrecy of information to our national security
and the appearance of confidentiality so essential to the effective
operation of our foreign intelligence service.") (internal quotation
marks omitted); Haig v. Agee, 453 U.S. 280, 307 (1981) (noting that
"no governmental interest is more compelling than the security of the
Nation"). But the governmental privilege, and indeed responsibility,
is nonetheless "a qualified one" in the sense that it must give way
when the information "‘is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause.’" Smith, 780
F.2d at 1107 (quoting Roviaro, 353 U.S. at 60-61). Specifically,
[t]he trial court is required to balance the public interest in
nondisclosure against the defendant’s right to prepare a
16
"During the examination of a witness in any criminal proceeding, the
United States may object to any question or line of inquiry that may
require the witness to disclose classified information not previously
found to be admissible. Following such an objection, the court shall take
such suitable action to determine whether the response is admissible as
will safeguard against the compromise of any classified information.
Such action may include requiring the United States to provide the court
with a proffer of the witness’ response to the question or line of inquiry
and requiring the defendant to provide the court with a proffer of the
nature of the information he seeks to elicit." 18 U.S.C.App. § 8(c).
44 UNITED STATES v. ALI
defense. A decision on disclosure of such information must
depend on the "particular circumstances of each case, taking
into consideration the crime charged, the possible defenses,
the possible significance of the [evidence,] and other rele-
vant factors."
Id. (quoting Roviaro, 353 U.S. at 61). If the district court determines
that the information "is helpful to the defense of an accused, or is
essential to a fair determination of a cause," it must be admitted. Id.;
see Fernandez, 913 F.2d at 154. While the court must "take into
account the government’s interest in protecting national security," we
have made clear that "this interest cannot override the defendant’s
right to a fair trial." Fernandez, 913 F.2d at 154; see also United
States v. Moussaoui, 382 F.3d 453, 466 n.18 (4th Cir. 2004) ("There
is no question that the Government cannot invoke national security
concerns as a means of depriving [the defendant] of a fair trial."). As
we most recently observed in Moussaoui,
In all cases of this type — cases falling into "what might
loosely be called the area of constitutionally guaranteed
access to evidence," Arizona v. Youngblood, 488 U.S. 51, 55
(1988) (internal quotation marks omitted) — the Supreme
Court has held that the defendant’s right to a trial that com-
ports with the Fifth and Sixth Amendments prevails over the
governmental privilege. Ultimately, as these cases make
clear, the appropriate procedure is for the district court to
order production of the evidence or witness and leave to the
Government the choice of whether to comply with that
order. If the Government refuses to produce the information
at issue — as it may properly do — the result is ordinarily
dismissal.
Moussaoui, 382 F.3d at 474.
In sum, the government may protect classified information from
disclosure, but if the district court determines, in the exercise of its
discretion, that an item of classified information is relevant and mate-
rial to the defense "that item must be admitted unless the government
provides an adequate substitution." Id. at 476 (citing 18 U.S.C.A.App.
3, § 6(c)(1)). To overcome the governmental privilege, "the defendant
UNITED STATES v. ALI 45
must come forward with something more that speculation as to the
usefulness of such disclosure." Smith, 780 F.2d at 1108. The "district
court may order disclosure only when the information is at least
essential to the defense, necessary to [the] defense, and neither merely
cumulative nor corroborative, nor speculative." Id. at 1110 (internal
quotation marks and citations omitted). But if the necessary showing
is made and "no adequate substitution can be found, the government
must decide whether it will [continue to] prohibit the disclosure of the
classified information; if it does so, the district court must impose a
sanction, which is presumptively dismissal of the indictment." Id. (cit-
ing 18 U.S.C.A.App. 3 § 6(a)). In sum, CIPA "enjoins district courts
to seek a solution that neither disadvantages the defendant nor penal-
izes the government (and the public) for protecting classified informa-
tion that may be vital to national security." Id. at 477.
C.
With these principles in mind, we turn first to Abu Ali’s Confronta-
tion Clause challenge to the government’s introduction at trial of two
unredacted, classified documents that memorialized communications
between Sultan Jubran and Abu Ali in the days following the May
2003 safe house raids conducted by the Saudi officials in Medina, as
well as to his exclusion from the CIPA proceedings in which these
communications were discussed.
1.
We begin with some additional background facts. After Abu Ali
was indicted, Attorney Khurrum Wahid and Attorney Ashraf Nubani
appeared to represent him. However, because one failed to apply for
security clearance and the other was not approved by the Department
of Justice, neither attorney was authorized to view the classified docu-
ments. On September 8, 2005, the district court, informed that the
case would involve national security interests and CIPA proceedings
and anticipating Abu Ali’s need for an attorney with the proper secur-
ity clearance, appointed Attorney Nina J. Ginsberg to act as CIPA-
cleared counsel for Abu Ali.17 On October 14, 2005, the government
17
Although Abu Ali subsequently asked that Ms. Ginsberg’s appear-
ance be entered "for the limited purpose of assisting the defense with the
review and presentation of classified material produced," ACA 1, the dis-
trict court imposed no such limitation upon her representation.
46 UNITED STATES v. ALI
first produced unredacted copies of the classified documents to Ms.
Ginsberg and informed her that it intended to introduce the documents
as evidence at trial. However, the government advised Ms. Ginsberg
that it would proceed under CIPA to seek "certain limitations on pub-
lic disclosure that will be necessary to prevent the revelation of
extremely sensitive national security information." ACA 3.
Three days later, the government provided Abu Ali’s uncleared
defense counsel with slightly redacted copies of the classified docu-
ments, which it described as "newly declassified communications
between the defendant and Sultan Jubran Sultan al-Qahtani occurring
on May 27, 2003, and June 6, 2003," in their Arabic versions and with
English translations, and advised counsel of the government’s "in-
ten[t] to offer these communications into evidence at trial as proof
that the defendant provided material support to al-Qaeda." SCA 107.
The first declassified document was dated May 27, 2003, and read as
follows:
Peace, How are you and how is your family? I hope they are
good. I heard the news about the children’s sickness. I wish
them a speedy recovery, God willing. Anyway, please keep
in touch. Greetings to the group, Hani.
SCA 108. The government intended to demonstrate that "Hani" was
a known alias of Abu Ali and that "news about the children’s sick-
ness" was a coded reference to the raids conducted by the Mabahith
and the arrest of the Medina cell members. The second declassified
document was dated June 6, 2003, and read as follows:
To my brother, Peace to you with God’s mercy and bless-
ings. Thank God, I am fine. I was saved from the accident
by a great miracle. I ask God that I would be thankful to
Him. I have no idea about the others. However, according
to what one doctor mentioned, ‘Adil was not with them,
thank God. The important thing is to get yourself ready for
the medical checkup because you may have an appointment
soon. Therefore, you must keep yourself ready by refraining
from eating high fat meals and otherwise.
SCA 109. With regard to this communication, the government
intended to demonstrate that the term "accident" was also a coded ref-
UNITED STATES v. ALI 47
erence to the safe house raids. According to the government’s theory,
Sultan Jubran was advising Abu Ali that he did not know which cell
members had escaped and which were captured, but that he and al-
Faq’asi (a/k/a "Adil"), had escaped, and warning that Abu Ali might
also be at risk.
A comparison of the classified and unclassified documents reveals
that the declassified versions provided the dates, the opening saluta-
tions, the entire substance of the communications, and the closings,
and had only been lightly redacted to omit certain identifying and
forensic information.
On October 19, 2005, the government filed an in camera, ex parte
motion pursuant to § 4 of CIPA, seeking a protective order prohibit-
ing testimony and lines of questioning that would lead to the disclo-
sure of the classified information during the trial. See 18 U.S.C.App.
3 § 4. The government advised that the classified portions of the com-
munications could not be provided to Abu Ali and his uncleared
counsel because they contained highly sensitive information which, if
confirmed in a public setting, would divulge information detrimental
to national security interests. The district court granted the govern-
ment’s motion by in camera, ex parte, sealed order. However, the dis-
trict court ruled that the United States could use the "silent witness
rule" to disclose the classified information to the jury at trial.18
18
The "silent witness" rule was described in United States v. Zettl, 835
F.2d 1059, 1063 (4th Cir. 1987), as follows.
[T]he witness would not disclose the information from the classi-
fied document in open court. Instead, the witness would have a
copy of the classified document before him. The court, counsel
and the jury would also have copies of the classified document.
The witness would refer to specific places in the document in
response to questioning. The jury would then refer to the particu-
lar part of the document as the witness answered. By this
method, the classified information would not be made public at
trial but the defense would be able to present that classified
information to the jury.
Id.
48 UNITED STATES v. ALI
Abu Ali immediately responded with a motion that the government
declassify the documents in their entirety or be ordered to provide the
dates on which the communications were obtained by the government
and the manner in which they were obtained. The stated purpose of
the request, however, was not to contest that Abu Ali was a party to
the communications, but to enable Abu Ali to ascertain whether the
government had discovered the existence of the communications prior
to Abu Ali’s arrest by the Saudi officials. If so, Abu Ali sought to rely
upon this fact to demonstrate that each confession he made to the
Saudi officials was the product of a joint venture with American law
enforcement and, therefore, inadmissible.
On October 21, 2005, the district court conducted an in camera
CIPA hearing to consider Abu Ali’s motion. Abu Ali was not present
at the hearing, but was represented by his CIPA-cleared counsel, who
objected to the exclusion of her client and his other uncleared counsel,
but did not specifically object to the use of the declassified version
of the document or to the use of the "silent witness" procedure. With
regard to the joint venture issue, the government advised the court
that the communications were obtained prior to Abu Ali’s arrest by
the Saudi officials, but that they were obtained "based on intelligence
collecting by the United States government with no involvement
whatsoever of Saudi authorities." ACA 19-20. The district court
found that the communications were discovered independently from
the Saudi government’s investigation and, therefore, were not the
product of a joint venture. The district court also concluded that the
declassified, redacted version of the documents provided to Abu Ali
"me[t] the defense’s need for access to the information." ACA 31.
After trial commenced, Abu Ali moved the court pursuant to § 5
of CIPA to allow uncleared counsel to question the two government
witnesses slated to introduce the substance of the classified communi-
cations into evidence "about their role in extracting, sharing, transfer-
ring, and handling [the] communications." ACA 35. See 18
U.S.C.App. 3 § 5. The first witness was the compliance manager and
custodian of records for the legal department of the communications
carrier involved and the person tasked with the duty of responding to
orders issued by the Foreign Intelligence Surveillance Act ("FISA")
Court. The second was a Special Agent with the FBI, who received
the information from the compliance manager. Because this line of
UNITED STATES v. ALI 49
questioning would lead to the disclosure of the classified information,
the government opposed the motion. On November 9, 2005, the dis-
trict court held another in camera hearing with CIPA-cleared defense
counsel present but in the absence of Abu Ali and his uncleared coun-
sel. 18 U.S.C.App. 3 § 6(a) (providing for such in camera proceedings
to determine "the use, relevance, or admissibility of classified infor-
mation that would otherwise be made during the trial or pretrial pro-
ceedings"). The district court denied Abu Ali’s motion "because
CIPA prohibits revealing such classified information to the public"
and "uncleared defense counsel is barred under CIPA from receiving,
or eliciting testimony that will likely reveal, classified information."
ACA 36. In doing so, the district court also noted that "the defense’s
attempt to force the government to unnecessarily disclose the means
and methods the government used to gather this classified information
may amount to ‘greymail,’ which CIPA was intended to prevent."
ACA 37-38; see also ACA 55 (noting that "requir[ing] the govern-
ment the pain of dismissal of the indictment or other punitive mea-
sures concerning how the data was extracted . . . is grey mail" which
is "exactly the kind of thing that CIPA is supposed to prevent," i.e.,
to prevent the defense from forcing the government to reveal classi-
fied information and "run the risk of exposing means and methods,
source of gathering intelligence information and foreign intelligence
information").
Nevertheless, the district court agreed to conduct an in camera
hearing the next day, at which time CIPA-cleared counsel would be
allowed to question the witnesses "to resolve any question that the
defense might have about the reliability of the extraction process or
the handling of it." ACA 55-56. Public cross-examination of the com-
pliance manager about the substance of the communications, the fact
that they were collected pursuant to a warrant, and the extent to which
she could connect the communications to Abu Ali, and of the FBI
Agent about how the information was received, managed, and kept in
the chain of custody, by uncleared counsel was otherwise unre-
stricted.
In ruling upon the motion, the district court expressly considered
Abu Ali’s rights under the Confrontation Clause, but ruled that these
rights were not infringed because Abu Ali and his uncleared counsel
"know about and have been given the substantive contents of the
50 UNITED STATES v. ALI
communications" and would "have the opportunity to cross-examine
the communications carrier representative and the FBI agent regard-
ing the substance of those communications." ACA 37; see also ACA
54 (noting that "the issue of the reliability of the collection of the
database . . . [was] not of significant moment to have to reveal classi-
fied information" about how the communications were collected and
extracted). ACA 54. Additionally, Abu Ali had CIPA-cleared counsel
who would "be permitted to question these witnesses in a closed in
camera hearing about the extraction, collection, storage, sharing,
transfer, receipt, handling, or chain of custody relating to the . . . com-
munications at issue." ACA 37.
At the in camera hearing held the following day, CIPA-cleared
counsel conducted a thorough and unrestricted cross-examination of
the compliance manager regarding the issues raised, but found it
unnecessary to question the FBI agent. Abu Ali’s uncleared counsel
then returned to the courtroom and rather broadly objected "to this
whole process with the CIPA material." ACA 140. However, counsel
focused the objection not on the fact that the jury would be receiving
unredacted, classified versions of documents that had not been pro-
vided to Abu Ali personally, but rather on the fact that they were per-
sonally prohibited from appearing at the CIPA hearing and that the
jury would be told that the evidence was secret. Counsel argued that
this might "taint[ ] the jury with . . . the impression that there’s some-
thing so important about this document that it’s of national security
value," and that his client "is a threat" when there was nothing within
the documents "that in and of itself is . . . dangerous or in any way
should be classified." ACA 140-41.
In support of this claim of alleged prejudice, uncleared counsel
argued to the district court that "[i]t is very evident what the material
is just by reading the evidence that has already been turned over to
the defense," ACA 140, and that it "takes really, quite frankly, some-
one who is of less than regular intelligence to not figure out what the
document is," ACA 141. In short, counsel was of the view that the
classification designation was "a bit of a show that we’re putting on"
that "den[ied] my client his Sixth Amendment right to confront the
evidence, his choice of attorney and to have his attorney conduct a
proceeding in a manner that that attorney sees fit." ACA 140. In other
words, uncleared counsel complained not that he and his client were
UNITED STATES v. ALI 51
in the dark about the redacted evidence, but rather that the govern-
ment should declassify the documents because the redacted portions
were not really a "secret" at all.
Noting that it was not at liberty under CIPA "to second guess the
government’s judgment to classify the information," the district court
overruled the objection. ACA 143.19 The jury was instructed regard-
ing the upcoming presentation of classified evidence, Ms. Ginsberg
was introduced to the jury as "an attorney hired by Mr. Abu Ali to
handle this aspect of the case," ACA 148, and the unredacted, classi-
fied versions of the documents were presented to the jury via the "si-
lent witness" procedure.20
19
Because CIPA-counsel had endorsed the use of the "SECRET" cover
sheet to the documents, but uncleared counsel had expressed a concern
with the impression it might create, the district court "offer[ed] the
defense the option of having a cover sheet to appear to the jury that they
are looking at the same documents." ACA 143. Apparently, counsel
chose to utilize the cover sheet.
20
Although uncleared defense counsel could have done so, Ms. Gins-
berg also conducted the cross-examination of the two witnesses at trial.
The compliance manager testified that she received an emergency autho-
rization to provide the FBI with information relevant to the case on June
7, 2003. This was followed by a written order by the FISA court to con-
duct a physical search for historical communications. The compliance
manager testified that she "searched [their] database for the name [pro-
vided] and confirmed . . . information existed responsive" to the order.
ACA 153. She testified that she had conducted similar searches
"[t]housands of times" utilizing the same automated tool used here and
that, based upon her experience, it "has always been reliable." ACA 155.
She identified the unredacted, classified documents as those produced in
response to the order, as well as the dates and times of the communica-
tions, and the parties to the communications. On cross-examination, she
acknowledged that she had no knowledge as to when the search system
was last tested, how many times the account was used or accessed after
June 7, 2003, or whether the communications originated outside the
United States. She testified that she was unable to personally vouch for
the reliability of the date and time, had no knowledge of any of the per-
sons alleged to be identified by the information, and had no way of
knowing whether Abu Ali was a party to the communications. The FBI
Agent followed with testimony regarding his receipt of the data provided
pursuant to the FISA order and the steps taken to ensure that the data was
properly maintained by the FBI.
UNITED STATES v. ALI 53
Volume 2 of 2
54 UNITED STATES v. ALI
2.
On appeal, Abu Ali challenges the district court’s exclusion of him
and his uncleared counsel from the CIPA proceedings and the district
court’s admission of the unredacted, classified documents into evi-
dence for consideration by the jury, as violative of his rights under the
Confrontation Clause. The government argues that the district court
properly protected the redacted classified information from disclosure
under CIPA and properly excluded Abu Ali and his uncleared counsel
from the CIPA hearings because the matter involved highly sensitive
intelligence information. The government also argues that Abu Ali’s
rights were not violated by the admission of the classified versions as
evidence because Abu Ali was provided with virtually all of the text
of the documents, including the substance of the communications, the
dates of the communications, and the parties to the communications.
We review the trial court’s rulings pursuant to CIPA under an
abuse of discretion standard. See Fernandez, 913 F.2d at 155. In addi-
tion, "[o]ur role [on] appeal is circumscribed. We are not asked, and
we have no authority, to consider judgments made by the Attorney
General concerning the extent to which the information in issue here
implicates national security. Similarly, neither the prosecutorial deci-
sions in this case nor the possibility of graymail . . . comes within our
purview." Fernandez, 913 F.3d at 154. Rather, "we are faced with a
series of very narrow, fact-specific evidentiary determinations and
with the question of whether the defendant could receive a fair trial
without the aid of certain evidence." Id. at 154. We review the consti-
tutional claims de novo. See United States v. Rivera, 412 F.3d 562,
566 (4th Cir. 2005).
UNITED STATES v. ALI 55
3.
Having carefully considered the circumstances and evidence
below, we conclude that the district court’s determination that the
redacted classified information need not be disclosed to the defendant,
his uncleared counsel, and the public was not an abuse of discretion.
Nor do we think that the district court’s exclusion of Abu Ali and his
uncleared counsel from the CIPA proceedings ran afoul of the Con-
frontation Clause. The district court’s admission of the classified ver-
sions of the documents as evidence for consideration by the jury
without disclosing the same versions to Abu Ali, however, was
clearly contrary to the rights guaranteed to Abu Ali by the Confronta-
tion Clause.
We begin with the district court’s exclusion of Abu Ali and his
uncleared counsel from the CIPA proceedings. The district court was
presented with a § 4 motion by the government to protect the classi-
fied information and a § 5 motion, made at a later date, by Abu Ali
that he be allowed to disclose that information. Initially, the district
court found the redacted, unclassified version of the communications
to be adequate to meet the defendant’s need for information. CIPA
expressly provides for such redactions of classified information from
documents sought or required to be produced to the defendant, and
the determination may be based upon an ex parte showing that the
disclosure would jeopardize national security interests. The district
court appropriately balanced the interests and made a reasonable
determination that disclosure of the redacted information was not nec-
essary to a fair trial.
There was likewise no abuse of discretion in the district court’s
decision to preclude Abu Ali’s uncleared counsel from cross-
examining the government’s witnesses about the redacted informa-
tion, which would have effectively disclosed the classified informa-
tion that the court had already ruled need not be disclosed. A
defendant and his counsel, if lacking in the requisite security clear-
ance, must be excluded from hearings that determine what classified
information is material and whether substitutions crafted by the gov-
ernment suffice to provide the defendant adequate means of present-
ing a defense and obtaining a fair trial. Thus, the mere exclusion of
Abu Ali and his uncleared counsel from the CIPA hearings did not
56 UNITED STATES v. ALI
run afoul of CIPA or Abu Ali’s Confrontation Clause rights. Cf. In
re Washington Post Co., 807 F.2d 383, 393 (4th Cir. 1986) (Under
CIPA, "the district court may hold an in camera hearing for the pur-
pose of making [ ] advance evidentiary determinations.").
We also conclude that the district court struck an appropriate bal-
ance between the government’s national security interests and the
defendant’s right to explore the manner in which the communications
were obtained and handled. Abu Ali and his uncleared counsel were
provided with the substance of the communications, the dates, and the
parties involved, and CIPA-cleared defense counsel was provided
with the classified versions and afforded unfettered opportunity to
cross-examine the government’s witnesses concerning these matters.
At the conclusion of the examinations, defense counsel pointed to no
specific problem with the issues explored. The district court also
expressly considered Abu Ali’s rights under the Confrontation Clause
and determined that public examination of these witnesses was not
necessary to prevent infringement of them. Having fully considered
the record and the classified information ourselves, we agree.
Uncleared defense counsel were not entitled to disclose the classified
information via their questioning of the witnesses about their roles in
extracting, sharing, transferring, and handling the communications,
and Abu Ali, who was ably represented by counsel at the hearing on
this issue, was not deprived of his right to confrontation or to a fair
trial merely because he and his uncleared counsel were not also
allowed to attend.
The error in the case, which appears to have originated in the Octo-
ber 2005 CIPA proceeding, was that CIPA was taken one step too far.
The district court did not abuse its discretion in protecting the classi-
fied information from disclosure to Abu Ali and his uncleared coun-
sel, in approving a suitable substitute, or in determining that Abu Ali
would receive a fair trial in the absence of such disclosure. But, for
reasons that remain somewhat unclear to us, the district court granted
the government’s request that the complete, unredacted classified
document could be presented to the jury via the "silent witness" pro-
cedure. The end result, therefore, was that the jury was privy to the
information that was withheld from Abu Ali.21
21
We pause to note that while Abu Ali quite clearly argues on appeal
that the district court violated his Confrontation Clause rights by allow-
UNITED STATES v. ALI 57
As noted above, CIPA contemplates and authorizes district courts
to prevent the disclosure of classified information, as was done in this
case, so long as it does not deprive the defendant of a fair trial. See
18 U.S.C.App. 3 § 4, § 6(c), & § 8(b). CIPA also authorizes restric-
tions upon the questioning of the witnesses to ensure that classified
information remains classified. See 18 U.S.C.App. 3, § 8(c). Indeed,
even the "silent witness" procedure contemplates situations in which
the jury is provided classified information that is withheld from the
public, but not from the defendant. See United States v. Zettl, 835
F.2d 1059, 1063 (4th Cir. 1987).22 In addition, CIPA provides district
courts wide discretion to evaluate and approve suitable substitutions
to be presented to the jury. CIPA does not, however, authorize courts
to provide classified documents to the jury when only such substitu-
tions are provided to the defendant. Cf. Fernandez, 913 F.2d at 152
(noting that substitutions must "provide the defendant with substan-
tially the same ability to make his defense as would disclosure of the
specific classified information"). Nor could it. There is a stark differ-
ence between ex parte submissions from prosecutors which protect
the disclosure of irrelevant, nonexculpatory, or privileged informa-
tion, and situations in which the government seeks to use ex parte
ing the government to introduce at trial evidence that the jury was
allowed to see in its entirety while simultaneously providing him with
only a redacted version of that evidence, his counsel was not so clear in
stating this objection to the district court. As indicated above, Abu Ali’s
uncleared counsel repeatedly led the district court to believe that they
were aware of what had been redacted and were much more concerned
with the district court’s refusal to allow uncleared counsel to publicly
examine the government witnesses and disclose the redacted portions of
the documents. In other words, they took issue with the government’s
decision to classify the information in the first instance which, as noted
above, is not subject to question. When we view this matter in its
entirety, we are more than a little troubled by this failure. However, we
have chosen to consider the objections stated to the district court to be
broad enough to encompass this ground for appeal and have considered
the error under the harmless error standard as opposed to the plain error
standard.
22
We are not called upon and express no opinion as to whether use of
the "silent witness" procedure would have been proper had defendant
received the same document presented to the jury.
58 UNITED STATES v. ALI
information in court as evidence to obtain a conviction. See United
States v. Claudio, 44 F.3d 10, 14 (1st Cir. 1995). And, the notion that
such "safeguards against wide-ranging discovery . . . would be suffi-
cient to justify a conviction on secret evidence is patently absurd." Id.;
see also United States v. Innamorati, 996 F.2d 456, 488 (1st Cir.
1993) (finding no error in prosecutor’s ex parte submission of infor-
mation for consideration as to whether it must be disclosed to the
defendant, but noting that "there [was] no question . . . of convictions
based upon secret evidence furnished to the factfinder but withheld
from the defendants).
The same can be said for the evidence here. If classified informa-
tion is to be relied upon as evidence of guilt, the district court may
consider steps to protect some or all of the information from unneces-
sary public disclosure in the interest of national security and in accor-
dance with CIPA, which specifically contemplates such methods as
redactions and substitutions so long as these alternatives do not
deprive the defendant of a fair trial. However, the government must
at a minimum provide the same version of the evidence to the defen-
dant that is submitted to the jury. We do not balance a criminal defen-
dant’s right to see the evidence which will be used to convict him
against the government’s interest in protecting that evidence from
public disclosure. If the government does not want the defendant to
be privy to information that is classified, it may either declassify the
document, seek approval of an effective substitute, or forego its use
altogether. What the government cannot do is hide the evidence from
the defendant, but give it to the jury. Such plainly violates the Con-
frontation Clause.
D.
Having determined that submission of the classified documents to
the jury ran afoul of Abu Ali’s Confrontation Clause rights, we turn
now to consider whether that error was harmless. See Van Arsdall,
475 U.S. at 684; see Idaho v. Wright, 497 U.S. 805, 823 (1990); Fed.
R. Crim. P. 52(a) (providing that "[a]ny error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded").
We conclude that it was.
It is well settled that, while "the Constitution entitles a criminal
defendant to a fair trial," it does not guarantee "a perfect one." Van
UNITED STATES v. ALI 59
Arsdall, 475 U.S. at 681. "[I]n the context of a particular case, certain
constitutional errors, no less than other errors, may have been ‘harm-
less’ in terms of their effect on the factfinding process at trial." Id.
"[A]n otherwise valid conviction should not be set aside if the review-
ing court may confidently say, on the whole record, that the constitu-
tional error was harmless beyond a reasonable doubt." Id.; see
Chapman v. California, 386 U.S. 18, 24 (1967).
The harmless-error doctrine recognizes the principle that the
central purpose of a criminal trial is to decide the factual
question of the defendant’s guilt or innocence, and promotes
public respect for the criminal process by focusing on the
underlying fairness of the trial rather than on the virtually
inevitable presence of immaterial error.
Van Arsdall, 475 U.S. at 681 (citations omitted).
When determining whether an error was harmless, "[t]he Court has
the power to review the record de novo." Arizona v. Fulminante, 499
U.S. 279, 295 (1991). "In so doing, it must be determined whether the
[government] has met its burden of demonstrating that the admission
of [the evidence] did not contribute to [the] conviction." Id. at 295-96.
"[I]n order to find a district court’s error harmless, we need only be
able to say with fair assurance, after pondering all that happened with-
out stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error." United States v. Brooks,
111 F.3d 365, 371 (4th Cir. 1997) (internal quotation marks omitted).
In this case, we are satisfied that the jury’s decision to convict Abu
Ali was not substantially swayed by the jury’s access to the limited
information redacted from the documents given to Abu Ali. Although
Abu Ali was not privy to the redacted information, this is not a situa-
tion in which the jury was provided with substantive evidence that
Abu Ali was prohibited from evaluating or responding to in an effec-
tive manner. Well in advance of trial, Abu Ali and his uncleared
counsel were given copies of the declassified versions of the commu-
nications alleged to have taken place between Sultan Jubran and Abu
Ali, which included the dates, opening salutations, unredacted sub-
stantive content, and closing signature of Abu Ali’s alias "Hani."
Thus, Abu Ali knew the precise dates that the alleged communica-
60 UNITED STATES v. ALI
tions took place, the entire substantive content of the communications
in which he allegedly participated, and the name of the other party to
the communications. Abu Ali did not contest that he was a participant
in the communications, nor was an argument advanced that disclosure
of the redacted information was necessary for him to refute his
involvement. On the contrary, Abu Ali had confessed to the Saudi
Mabahith that he communicated with Sultan Jubran after the raids and
his opposition to the government’s motion to protect the information
rested not upon a claim that the information provided was false, but
upon his asserted right to disclosure of the dates on which the com-
munications were discovered by the United States government in the
singular hope of bolstering the claim that the United States was acting
in joint venture with the Saudis when Abu Ali was interrogated and
confessed to the crimes upon which he now stands convicted. With
regard to the redaction of the forensic information, Abu Ali’s CIPA-
cleared counsel was provided with all classified information and
afforded the unfettered opportunity to challenge the government wit-
nesses regarding the information. Yet no showing was made then or
now that disclosure of the redacted information was necessary to
ensure that Abu Ali obtained a fair trial and no request was made to
have that information evaluated by outside forensic experts with
appropriate clearance.
Abu Ali’s eleventh-hour argument that the government cannot
demonstrate harmless error because he was prohibited from develop-
ing evidence of an alibi at the time of the communications or to other-
wise contest that he was, in actuality, a party to them is unpersuasive
for the same reasons. At no point prior to or during the trial did Abu
Ali contest that he was a party to the declassified communications
provided to him or attempt to formulate any such alibi, his CIPA-
cleared counsel made no request that the identifying information be
evaluated, and Abu Ali admitted that he had communicated with Sul-
tan Jubran after the Medina safe houses were raided. Thus, the infor-
mation that had been redacted from the declassified version was
largely cumulative to Abu Ali’s own confessions and the evidence
discovered during the safe house raids, which were presented to the
jury.
In sum, while the district court violated Abu Ali’s Sixth Amend-
ment right to confront the evidence against him by submitting the
UNITED STATES v. ALI 61
unredacted versions of the documents, instead of the redacted substi-
tute versions, to the jury as evidence at trial, we are satisfied that the
error was harmless beyond a reasonable doubt.
E.
Abu Ali’s next challenge is that the district court erred in denying
his post-trial motion to compel the government to disclose whether
the Terrorist Surveillance Program ("TSP") of the National Security
Agency ("NSA"), which was first reported to exist by the New York
Times in December 2005, resulted in any interceptions related to the
investigation and prosecution of his case. We disagree.
In the wake of the September 11, 2001, terrorist attacks in this
country, President George Bush authorized the NSA to implement the
TSP, which employs warrantless intercepts of "communications
where one party to the communication is located outside the United
States and the NSA has ‘a reasonable basis to conclude that one party
to the communication is a member of al Qaeda, affiliated with al
Qaeda, or a member of an organization affiliated with al Qaeda, or
working in support of al Qaeda." ACLU v. National Security Agency,
493 F.3d 644, 647 (6th Cir. 2007) (quoting Press Briefing by Att’y
Gen. Alberto Gonzales and Gen. Michael Hayden, Principal Deputy
Dir. for Nat’l Intelligence (Dec. 19, 2005), available at http://
www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html);
see also Statement on the Terrorist Surveillance Program, http://
www.whitehouse.gov/news/releases/2006/08/20060817-2.html (stat-
ing that the TSP "only targets international phone calls coming into
or out of the United States where one of the parties on the case is a
suspected Al Qaeda or affiliated terrorist"). The legality of the pro-
gram has since been challenged. See id.; Hepting v. AT&T Corp., 439
F.Supp.2d 974 (N.D. Cal. 2006).
Speculating that the government may have used the TSP to conduct
surveillance and obtain evidence against him for use at trial, Abu Ali
filed a post-trial motion in February 2006, seeking to stay his motion
for a new trial and sentencing "in order to determine what effects, if
any, the newly acknowledged warrantless NSA surveillance program
has had on [his] trial." ACA 177. In the motion, Abu Ali demanded
that the government disclose whether any such surveillance was used
62 UNITED STATES v. ALI
to either obtain a warrant from the FISA Court or otherwise obtain
evidence used against him.
The district court ordered the government to respond by
"[d]eclaration under oath of someone with personal knowledge; the
authority to speak on behalf of the government, its intelligence agen-
cies and contractors; and who can definitively answer whether [infor-
mation from warrantless electronic surveillance] was (1) used to
obtain a warrant from the FISA Court or (2) used in obtaining evi-
dence that was presented to the jury at trial." ACA 192. The govern-
ment filed its response on March 9, 2006, in classified, ex parte form.
After reviewing the submission, the district court found the govern-
ment’s justification for non-disclosure persuasive and ruled that the
information was not discoverable. Abu Ali thereafter filed a motion
seeking an order that he be permitted to review the government’s
classified, ex parte response to the motion to compel. The government
opposed this motion, and it too was denied by the district court.
Having thoroughly considered this matter, including all classified
submissions, we find no abuse of discretion in the district court’s rul-
ings. Accordingly, we affirm the district court’s exercise of its discre-
tion under CIPA to deny Abu Ali and his counsel access to the
government’s ex parte opposition to the motion to compel, as well as
its decision denying Abu Ali’s post trial motion to compel.
VII.
Finally, we address the government’s cross-appeal challenging the
reasonableness of Abu Ali’s sentence and its variation from the appli-
cable guidelines range of life imprisonment.
A.
The facts pertinent to this cross-appeal are as follows.
The district court engaged in a multi-step process to determine an
appropriate sentence. First, the district court ascertained the applica-
ble guidelines range. At a sentencing hearing on March 29, 2006, the
district court accepted as accurate the presentence report’s findings
UNITED STATES v. ALI 63
and guidelines calculation, namely an adjusted offense level of forty-
nine and a criminal history category of VI. As a result, the recom-
mended sentence for Abu Ali under the Sentencing Guidelines was
life imprisonment. Neither party challenges the correctness of the
guidelines calculation here.23
The district court also recognized that Abu Ali’s conviction on
Count Eight, conspiracy to commit aircraft piracy, carried a manda-
tory minimum of twenty years imprisonment. See 49 U.S.C.
§ 46502(a)(2)(A) (2000). Thus, any sentence imposed could not fall
below this statutory floor.
Having established these guideposts, the court then considered
what sentence would be "sufficient, but not greater than necessary, to
comply with" the other factors articulated in 18 U.S.C. § 3553(a). See
18 U.S.C. § 3553(a) (2000). The court discussed the relevant factors
seriatim and made the following observations.
First, as to the nature of the offense, the court emphasized that
"Abu Ali never planted any bombs, shot any weapons, or injured any
people, and there is no evidence that he took any steps in the United
States with others to further the conspiracy." The court also com-
mented on the defendant’s lack of a prior criminal history and his
good behavior while incarcerated in the United States. See id.
§ 3553(a)(1).
Next, though cognizant of the seriousness of Abu Ali’s crimes, the
court held that a sentence which "forced [Abu Ali] to spend his most
productive years in prison" and "consume[d] the majority of the
remainder of [his] natural life" would constitute sufficient punish-
ment, promote respect for the law, and afford adequate deterrence to
criminal conduct. See id. § 3553(a)(2)(A)-(B). In addition, the court
23
At the sentencing hearing, the government argued that Abu Ali’s
offense level should have been adjusted upward two additional levels for
his having an aggravated role in the offense, namely serving as a leader,
manager, or supervisor of the relevant criminal activity. See U.S.S.G.
§ 3B1.1. The district court rejected this proposed adjustment, and the
government has not appealed this aspect of the district court’s sentencing
decision.
64 UNITED STATES v. ALI
pointed to the low recidivism rates for criminals after the age of fifty
and noted that "the decisions that a 21-year old man may make are
not necessarily the same decisions that would be made by a man of
substantially advanced age who has had great time to reflect and
mature." Thus, the court predicted that Abu Ali would not present a
danger to public safety if eventually released at a more-advanced age.
See id. § 3553(a)(2)(C).
Finally, in order to avoid imposing disparate sentences amongst
similarly situated defendants, the court considered two other cases —
those of John Walker Lindh, see United States v. Lindh, 227 F. Supp.
2d 565 (E.D. Va. 2002) (sentencing Lindh to twenty years imprison-
ment), and of Timothy McVeigh and Terry Nichols, see United States
v. McVeigh, 153 F.3d 1166 (10th Cir. 1998) (upholding death sen-
tence for McVeigh); United States v. Nichols, 169 F.3d 1255 (10th
Cir. 1999) (affirming sentence of life imprisonment for Nichols).
Using these cases as poles on a potential sentencing spectrum, the dis-
trict court found that a sentence of less than life imprisonment was
warranted.
Because Abu Ali took fewer steps in furtherance of his conspira-
cies than McVeigh and Nichols, and because his actions resulted in
less material harm, the court deemed a sentence similar to those
received by McVeigh and Nichols as excessive. Instead, it held Abu
Ali’s crimes to be more akin to those of Lindh. As a result, the court
was "persuaded that, in light of the similarities to [Lindh’s] case, a
sentence of less than life imprisonment is necessary to prevent an
unwarranted disparity in Mr. Abu Ali’s case." See 18 U.S.C.
§ 3553(a)(6).
For these reasons, the district court found that a non-guidelines
sentence was appropriate and imposed a sentence of thirty years
imprisonment, followed by thirty years of supervised release. Based
on the defendant’s life expectancy, see Va. Code Ann. § 8.01-419
(2000), this represented a significant downward deviation from the
applicable guidelines range.
Claiming the sentence to be unreasonable, the government took a
timely appeal, which we now consider.
UNITED STATES v. ALI 65
B.
In United States v. Booker, 543 U.S. 220, 245 (2005), the Supreme
Court rendered the Sentencing Guidelines "effectively advisory."
Nevertheless, district courts in the post-Booker landscape must follow
specific steps to arrive at an appropriate sentence.
First, the district court must correctly calculate a defendant’s sen-
tence under the now-advisory guidelines. See Gall v. United States,
552 U.S. ___, 128 S. Ct. 586, 596 (2007) ("As a matter of administra-
tion and to secure nationwide consistency, the Guidelines should be
the starting point and the initial benchmark."); Rita v. United States,
551 U.S. ___, 127 S. Ct. 2456, 2465 (2007). A sentence based on an
improperly calculated guidelines range will be found unreasonable
and vacated. See Gall, 128 S. Ct. at 597 (noting that "improperly cal-
culating" the applicable Guidelines range constitutes a "significant
procedural error").
Next, the district court must allow "both parties an opportunity to
argue for whatever sentence they deem appropriate." Gall, 128 S. Ct.
at 596. In light of these arguments, the district court must then "con-
sider all of the § 3553(a) factors," id., keeping in mind the "overarch-
ing provision instructing district courts to ‘impose a sentence
sufficient, but not greater than necessary’ to accomplish the goals of
sentencing," Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558,
570 (2007) (quoting 18 U.S.C. § 3553(a)); see also Gall, 128 S. Ct.
at 596 & n.6. In so doing, the court "must make an individualized
assessment based on the facts presented" and cannot "presume that
the Guidelines range is reasonable." Gall, 128 S. Ct. at 596-97. If the
sentencing court believes "an outside-Guidelines sentence is war-
ranted, [it] must consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree of the
variance." Id. at 597.
Finally, the district court "must adequately explain the chosen sen-
tence." Id. This "allow[s] for meaningful appellate review" and "pro-
mote[s] the perception of fair sentencing." Id. Notably, if the court
imposes "an unusually lenient or an unusually harsh sentence," it
must provide "sufficient justifications" for its selection. Id. at 594; see
also Rita, 127 S. Ct. at 2468 (stating that "[t]he sentencing judge
66 UNITED STATES v. ALI
should set forth enough to satisfy the appellate court that he has . . .
a reasoned basis for exercising his own legal decisionmaking author-
ity").
Under Booker, we review a sentence for reasonableness. 543 U.S.
at 261. As the Supreme Court recently made clear in Gall, this means
that "all sentences — whether inside, just outside, or significantly out-
side the Guidelines range — [are reviewed] under a deferential abuse-
of-discretion standard." Gall, 128 S. Ct. at 591 (rejecting the use of
a "proportionality test" that required a "sentence that constitutes a
substantial variance from the Guidelines be justified by extraordinary
circumstances").
Reasonableness review includes both procedural and substantive
components. See id. at 597. We "must first ensure that the district
court committed no significant procedural error." Id. Such errors
include "failing to calculate (or improperly calculating) the Guide-
lines range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence — includ-
ing an explanation for any deviation from the Guidelines range." Id.
We must next "consider the substantive reasonableness of the sen-
tence imposed." Id. As the Court instructed in Gall, when reviewing
a sentence’s substantive reasonableness, we must "take into account
the totality of the circumstances." Id. Under this approach, the appli-
cable guidelines range plays an important role. See Kimbrough, 128
S. Ct. at 574 (explaining that the Court’s decisions have "preserved
a key role for the Sentencing Commission"); Rita, 127 S. Ct. at 2464
(noting that the Guidelines "seek to embody the § 3553(a) consider-
ations, both in principle and in practice"). In fact, a sentence located
within a correctly calculated guidelines range is presumptively rea-
sonable. See Rita, 127 S. Ct. at 2462 (upholding the use of such a pre-
sumption); United States v. Johnson, 445 F.3d 339, 344 (4th Cir.
2006).
However, that does not mean a non-guidelines sentence is pre-
sumptively unreasonable. Rita, 127 S. Ct. at 2467 (stating that courts
of appeal may not "adopt a presumption of unreasonableness" for
variance sentences). Rather, a sentence that deviates from the Guide-
UNITED STATES v. ALI 67
lines is reviewed under the same deferential abuse-of-discretion stan-
dard as a sentence imposed within the applicable guidelines range.
Nonetheless, in conducting this reasonableness inquiry, "the extent of
the difference between a particular sentence and the recommended
Guidelines range is surely relevant" and may be considered. Gall, 128
S. Ct. at 591. As the Supreme Court observed in Gall, when determin-
ing whether the district court’s proffered justification for imposing a
non-guidelines sentence "is sufficiently compelling to support the
degree of the variance," common sense dictates that "a major depar-
ture should be supported by a more significant justification than a
minor one." Id. at 597.
As with any sentence, however, when reviewing a variance sen-
tence, we "must give due deference to the district court’s decision"
and cannot reverse simply because we "might reasonably have con-
cluded that a different sentence was appropriate." Id. Rather, we must
affirm a variance sentence unless we find the district court abused its
discretion.
As always, when considering a sentence’s reasonableness, we "re-
view the district court’s legal conclusions de novo and its factual find-
ings for clear error." United States v. Hampton, 441 F.3d 284, 287
(4th Cir. 2006)
C.
The dispute in this case centers on the district court’s decision to
impose a variance sentence that significantly deviated from the appli-
cable guidelines range. While the deviation happened to be forty per-
cent (based on Abu Ali’s life expectancy), we recognize that relying
on a particular percentage "suffers from infirmities of application,"
Gall, 128 S. Ct. at 595, and we thus simply take note that the variance
was "major" and, as a result, "should be supported by a more signifi-
cant justification than a minor one," id. at 597. However, this does not
mean we require the justification to be "extraordinary." See id. at 595.
Rather, as directed by Gall, we review the reasonableness of the sen-
tence imposed for an abuse of discretion. This is undoubtedly a defer-
ential standard, and we approach it as such. At the same time,
however, such a standard does not mean there is no review at all. As
the Supreme Court made clear in Gall, even under an abuse of discre-
68 UNITED STATES v. ALI
tion standard, we still must engage in "meaningful appellate review"
and the district court’s "justification[s] [must be] sufficiently compel-
ling to support the degree of the variance." Id. at 597.
In reaching its decision, the district court examined each of the
§ 3553(a) sentencing factors. However, it was the court’s consider-
ation of § 3553(a)(6), which instructs courts to consider "the need to
avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct," that served
as the driving force behind its ultimate determination. 18 U.S.C.
§ 3553(a)(6) (2000). Though it recognized that "there are very few
cases to which to compare Mr. Abu Ali’s case[,]" the district court
devoted most of its attention in explaining the significant downward
deviation to a discussion of § 3553(a)(6), focusing on comparisons of
Abu Ali’s case to those of Lindh and McVeigh/Nichols, respectively.
Moreover, the court relied on the sentences imposed in those cases to
quantitatively locate the sentence it deemed appropriate for Abu Ali.
Given the emphasis the district court placed on this factor, and
because the comparisons, as discussed below, were inapposite, we
hold that the court abused its discretion when imposing the sentence.
As a result, resentencing is required.
1.
First, the court erred when it significantly relied on the need to
avoid an unwarranted sentence disparity between the defendant and
John Walker Lindh. Lindh pled guilty to two charges in connection
with his fighting for the Taliban in Afghanistan and, pursuant to the
terms of his plea agreement, was sentenced to twenty years imprison-
ment. See United States v. Lindh, 227 F. Supp. 2d 565, 566, 572 (E.D.
Va. 2002). With very little discussion of exactly why Lindh’s case
was similar to that of Abu Ali’s, the district court simply observed
that "while it does not rest its judgment solely on a comparison to the
Walker Lindh case, the Court is persuaded that, in light of the similar-
ities to [Lindh’s] case, a sentence of less than life imprisonment is
necessary to prevent an unwarranted disparity in Mr. Abu Ali’s case."
(emphasis added).
Using Lindh’s case as a comparative benchmark for the sentencing
of Abu Ali was problematic to say the least. To begin, it is highly
UNITED STATES v. ALI 69
questionable that Lindh’s conduct is at all similar to that of the defen-
dant. In May 2001, and thus before September 11, Lindh traveled to
Pakistan with the hopes of fighting for the Taliban "on the front line
in Afghanistan." Lindh, 227 F. Supp. 2d at 567. "[I]nterested only in
fighting with the Taliban against the Northern Alliance in Afghani-
stan," Lindh declined an offer to "tak[e] part in operations against the
United States, Israel or Europe" when approached by an al Farooq
camp administrator in the summer of 2001. Id. at 568. Instead, he
only "wished to fight on the front line against the Northern Alliance."
Id. at 567. In November 2001, after the September 11 terrorist attacks,
Lindh and his fighting unit "surrendered themselves and their weap-
ons to Northern Alliance troops." Id. at 569. According to the sen-
tencing court, Lindh claimed that he was not aware of the September
11 attacks until after they had occurred. Id. at 568. Based on his fight-
ing with the Taliban, Lindh eventually pled guilty to two charges:
supplying services to the Taliban and carrying an explosive during the
commission of a felony. Id. at 566.
While unquestionably serious, the crimes for which Lindh was con-
victed are different than Abu Ali’s in terms of both their substance
and scope. When Lindh was apprehended, he was a foot soldier on
a foreign battlefield fighting the Northern Alliance in Afghanistan.
Although he had spent time in al-Qaeda-linked military training
camps, Lindh was focused on fighting for the Taliban on the front
lines. In fact, he declined an opportunity to participate in terrorist
attacks against the United States, and claimed he had no prior knowl-
edge of the specific attacks that did take place on September 11, 2001.
In his capacity as a Taliban front-line soldier, the magnitude of the
threat personally posed by Lindh was limited to those American, and
American-allied, soldiers who were within his line of sight on the bat-
tlefield.
Lindh and Abu Ali are not comparable. The degree of harm con-
templated by Abu Ali was broader in scope and more devastating in
terms of its potential impact. Soon after arriving in Saudi Arabia in
September 2002, Abu Ali joined an al-Qaeda cell intent on inflicting
massive civilian casualties on American soil. He pledged to engage
in jihad against the United States and, as a member of the cell, partici-
pated in the planning of several plots, including: assassinating the
President of the United States, destroying airliners destined for the
70 UNITED STATES v. ALI
United States, and returning to the United States as part of a sleeper
cell that, if successful, would engage in terrorist operations within the
United States, particularly targeting public gathering places. Abu
Ali’s designs were not limited to a foreign battlefield or directed at
a foreign enemy, but rather aimed at civilian targets in the American
homeland. Put simply, his conduct was markedly different than that
of Lindh, completely undermining the usefulness of any comparison
between the two.
In addition to their dissimilar conduct, Abu Ali and Lindh are not
similarly situated defendants under § 3553(a)(6) in the sense that
Lindh, unlike Abu Ali, was sentenced pursuant to a plea agreement
with the government. As noted earlier, Lindh pled guilty to two
charges. Pursuant to the deal, Lindh agreed to fully cooperate with the
prosecution. He agreed to assign any profits or proceeds arising from
publicity to the United States government. Lindh, 227 F. Supp. 2d at
572, nn.7 & 8. In addition, he accepted responsibility and showed
remorse for his conduct. Id. at 571. As the district court noted in
Lindh’s sentencing order, Lindh had stated emphatically that he "con-
demn[ed] terrorism on every level" and openly realized he "made a
mistake by joining the Taliban." Id.
In exchange for Lindh’s pleading guilty, the government agreed to
dismiss the remaining nine counts from the original indictment. Id. at
566, n.2. This included a charge of carrying a destructive device dur-
ing a crime of violence, which has a statutory mandatory minimum
of thirty years imprisonment. Id.; 18 U.S.C. § 924(c)(1)(B)(ii) (2000).
After accepting the plea, the district court sentenced Lindh to the
maximum possible sentence pursuant to the agreement, twenty years
imprisonment.24
24
Lindh was convicted of supplying services to the Taliban and carry-
ing an explosive during the commission of a felony. At the time, each
charge carried a maximum sentence of ten years imprisonment. See
Lindh, 227 F. Supp. 2d at 571-72; see also 50 U.S.C. § 1705(b) (2000),
amended by Pub. L. No. 109-177, § 402(2), 120 Stat. 243 (2006); 18
U.S.C. § 844(h)(2) (2000). Thus, the absolute maximum sentence Lindh
faced, based on the sentences running consecutively, was twenty years
imprisonment.
UNITED STATES v. ALI 71
By comparison, Abu Ali refused to cooperate with the government,
expressed no responsibility or remorse for any of his offenses, and
stands convicted of a crime that carries a mandatory minimum (not
maximum) of twenty years imprisonment. Although Abu Ali had
every right to go to trial and claim innocence until proven guilty, he
has now been proven guilty and thus cannot avail himself of the bene-
fits typically afforded those who reach plea agreements with the gov-
ernment and accept responsibility for their illegal conduct before
going to trial. A comparison resting on Lindh’s sentence fails to
account for this stark contrast.
Prior to the Supreme Court’s recent decisions in Gall, Kimbrough,
and Rita, this circuit had held that a downward deviation based pri-
marily on the comparison of a defendant who went to trial with those
who entered plea agreements is a misapplication of § 3553(a)(6) that
required the sentence to be vacated. See United States v. Khan, 461
F.3d 477, 500-01 (4th Cir. 2006); United States v. Perez-Pena, 453
F.3d 236, 242-43 (4th Cir. 2006). This was because we viewed the
comparison of such defendants, even if co-defendants, to be like
"comparing apples and oranges." Perez-Pena, 453 F.3d at 243; see
also Khan, 461 F.3d at 485, 499-501 (finding there is a material dif-
ference between those who "accept[ ] responsibility and provide[ ]
valuable assistance to the government" and those who "never
accept[ ] responsibility and obstruct[ ] justice both before and during
his trial").
Whether those precedents would require vacating the sentence in
Abu Ali’s case is something we need not address. As we have noted,
those rulings underscore only one of several factors that make the
Lindh and Abu Ali cases starkly different. Indeed, any comparison
between Abu Ali and Lindh rests on such dramatic differences that
Lindh’s case cannot serve as a basis for any useful comparison — let
alone one that makes imposing a significant variance sentence "neces-
sary." As a result, any comparison to Lindh’s case would be tanta-
mount to comparing the incomparable, and thus was misplaced.
2.
The district court also erred in its application of § 3553(a)(6) when
it relied on a comparison to the case of Timothy McVeigh and Terry
72 UNITED STATES v. ALI
Nichols. In making the comparison, the court noted "two very signifi-
cant distinctions between that case and the case of Mr. Abu Ali."
First, "Abu Ali took far fewer and much less significant steps in
accomplishing the conspiracies for which he was convicted." Second,
"the magnitude and enormity of the impact of the criminal actions of
McVeigh and Nichols stand in stark contrast to that which exists in
the case of Mr. Abu Ali." Thus, it found that imposing a sentence of
life imprisonment on Abu Ali would have led to an unwarranted dis-
parity under § 3553(a)(6). Because this application overlooks several
critical points, it likewise was mistaken.
First, though the district court accurately noted that Abu Ali never
"injured any people" and "no victim was injured in the United
States[,]" this should not trivialize the severity of his offenses. Plot-
ting terrorist attacks on the civilian population and conspiring to
assassinate the President of the United States are offenses of the
utmost gravity, and the Guidelines and for that matter any other mea-
sure of severity manifestly treat them as such. Had Abu Ali’s plans
come to fruition, they would, according to his own words, have led
to massive civilian casualties and the assassination of senior U.S. offi-
cials. As the district court properly recognized, but failed to ade-
quately appreciate, we cannot "wait until there are victims of terrorist
attacks to fully enforce the nation’s criminal laws against terrorism."
To deviate on the basis of unrealized harm is to require an act of
completion for an offense that clearly contemplates incomplete con-
duct. By definition, conspiracy offenses do not require that all objects
of the conspiracy be accomplished. The Guidelines appropriately rec-
ognize this fact: while they normally afford a three-level decrease for
non-specific offense conspiracies that were not on the verge of com-
pletion, they specifically exclude from this decrease any conspiracies
that involve or promote "a federal crime of terrorism." See U.S.S.G.
§ 2X1.1.
Furthermore, the lack of completion in this case should not be
taken to indicate any change of heart by the defendant. Instead, he
continued conspiring until he was arrested by the Mabahith on suspi-
cion of membership in an al-Qaeda-linked terrorist cell. It was only
because of his arrest that he was forced to desist from further execu-
tion of his plans. Thus, the defendant should not benefit simply
UNITED STATES v. ALI 73
because his plans were disrupted by Saudi officials before he could
see them through.
Second, while Abu Ali may not have "planted any bombs, shot any
weapons, or . . . took any steps in the United States with others to fur-
ther the conspiracy," the steps he did take were significant. Indeed, he
joined the al-Faq’asi terrorist cell in Saudi Arabia with the hopes of
facilitating terrorist attacks in the United States. He researched inter-
national flights that might be suitable for hijacking and investigated
the locations of nuclear power plants that could serve as potential tar-
gets for attack. He also participated in a course on explosives and
plotted various ways and methods of assassinating the President of the
United States. These were serious and significant steps in their own
right.
Finally, while the Oklahoma City bombing was undoubtedly one
of the most heinous and devastating acts in our nation’s history, to
require a similar infliction of harm before imposing a similar sentence
would effectively raise the bar too high. We should not require that
a defendant do what McVeigh and Nichols did in order to receive a
life sentence.
For these reasons, the district court abused its discretion when it
compared Abu Ali’s case to those of Lindh and of McVeigh and
Nichols, respectively, and used those comparisons as a basis for its
sentence.
D.
A word finally in response to the dissent. The dissent asserts three
faults in the sentencing analysis: a failure to follow the principles
established by the Supreme Court in Gall and Kimbrough, error in our
analysis of the district court’s sentencing order, and, finally, the cre-
ation of a terrorism exception to the level of deference normally
afforded district judges in sentencing. We address each of these con-
tentions in turn.
1.
To begin, we have followed Gall’s directive that "all sentences" be
reviewed "under a deferential abuse-of-discretion standard," Gall, 128
74 UNITED STATES v. ALI
S. Ct. at 591. Indeed, we understand this to be the thrust of Gall.
Likewise, we have fully recognized that the "sentencing judge is in
a superior position to find facts" and conduct the "individualized
assessment" that is such an integral part of the sentencing process. Id.
at 597 (internal quotations omitted). While we take exception to the
sentence’s degree of deviation for the reasons we discuss, we do not
seek to deprive the district court of discretion upon remand. Rather,
our difference with the sentencing court here is based on the fact that
the specific justifications offered were not "sufficiently compelling to
support the degree of the variance." See Gall, 128 S. Ct. at 597.
In reaching this decision, we decline to adopt the view that Gall
eviscerated any form of appellate review of trial court sentencing.
While Gall assuredly made clear the limited and deferential role of
appellate courts in the sentencing process, see id. at 597-98, it was not
a decision wholly without nuance or balance. If Gall had intended to
dispense with any semblance of meaningful review, there would have
been no need for the decision to say what it did. Specifically, there
would have been no need for Gall to direct district courts to "correctly
calculat[e] the applicable Guidelines range." Id. at 596. There would
have been no need to require sentencing judges to "consider all of the
§ 3553(a) factors." Id. There would have been no need to ensure that
non-Guidelines sentences are based on a "justification [that] is suffi-
ciently compelling to support the degree of the variance." Id. at 597.
There would have been no need to demand that district courts "ade-
quately explain the chosen sentence to allow for meaningful appellate
review." Id. There would have been no need to direct reviewing
courts to "consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard." Id. These statements
cannot be read as mere asides, and do not imply that a district court’s
sentencing authority is to all intents and purposes plenary.25
25
As support for this interpretation, the dissent cites numerous appel-
late court decisions that reversed variance sentences but were subse-
quently vacated by the Supreme Court after Gall. See post at 81-82 n.1.
These cases were all decided before Gall was issued — that is, the
respective decisions were vacated for "further consideration in light of
Gall." See, e.g., Tom v. United States, 128 S. Ct. 1132 (2008), vacating
504 F.3d 89 (1st Cir. 2007). Unlike those cases, we have had the oppor-
tunity to make a decision in light of, and consistent with, the principles
announced in Gall.
UNITED STATES v. ALI 75
In sum, while Gall unquestionably stressed the sizeable discretion
that must be afforded sentencing courts, it just as certainly did not
represent a complete lurch of the pendulum, rendering sentencing a
one-sided exercise which traded one sort of infirmity for another.
That is, Gall did not substitute a regime of total unreviewability for
the fallen regime of Guidelines rigidity. After Gall, sentencing con-
tinues to represent at least some modest balance between the need to
avoid unbounded disparity and the need for individualized assess-
ments. See Kimbrough, 128 S. Ct. at 573-74 (noting that while "uni-
formity remains an important goal of sentencing," "some departures
from uniformity [are] a necessary cost" of individualized sentencing).
While appellate courts must embrace a healthy respect for the district
court’s superior vantage point in the sentencing process, see Gall, 128
S. Ct. at 597-98, inherent in the concept of "reasonableness," id. at
594, is the notion that the rare sentence may be unreasonable, and
inherent in the idea of "discretion" is the notion that it may, on infre-
quent occasion, be abused.
2.
Next, the dissent raises several issues with respect to the sentence
itself. First, there is obviously disagreement over the importance of
the application of § 3553(a)(6), i.e. the comparison of Abu Ali to John
Walker Lindh and Timothy McVeigh, to the district court’s ultimate
decision. It was clearly not an "isolated" factor in the district court’s
overall decision-making process. Post at 86. As everyone recognizes,
the district court’s sentencing order "dedicate[s] more words" to this
We likewise find unpersuasive the second set of cases the dissent mar-
shals for support. Citing several post-Gall decisions "affirming sentences
that deviate[d] substantially from the applicable Guidelines range," the
dissent alleges that because we do not affirm the sentence here, we must
have failed to "follow[ ] the directives of Gall and Kimbrough." See post
at 83 n.2. However, we, like the courts cited by the dissent, have made
Gall and Kimbrough the touchstone of our analysis. Furthermore, we
find no inconsistency between our holding here and the decisions cited
by the dissent. This is because the differing results are based on the sim-
ple fact that the sort of sufficient justifications present in those other
cases are absent here.
76 UNITED STATES v. ALI
"single statutory factor" than to any other § 3553(a) consideration. Id.
at 91 n.7, 99. Moreover, this factor not only received most of the dis-
trict court’s attention during sentencing, but it was also the driving
force behind the decision and served to quantitatively locate the spe-
cific sentence selected. As a result, the sentencing court’s application
of § 3553(a)(6) cannot simply be discarded as an unimportant or iso-
lated factor.
We also reject the view that the gravity of Abu Ali’s conduct
should be so deeply discounted because his efforts to commit a hor-
rific crime were thwarted. Although it is true that Abu Ali’s dream of
inflicting devastating harm on America did not become a reality, it
bears repeating that he was stopped only because he was apprehended
before his plots could be put into action, and not because he had
changed his mind or abandoned his plans.
As a result, Abu Ali stands in sharp contrast to the defendant in
Gall, who withdrew from the conspiracy at issue on his own volition
and led a constructive life thereafter — a fact the district court in Gall
"quite reasonably attached great weight to" in support of mitigation,
and a fact that is noticeably absent here. See Gall, 128 S. Ct. at 600.
Furthermore, Abu Ali’s post-arrest conduct is markedly different than
that of Lindh, who at least showed remorse and regret after he was
apprehended. Although Lindh did not withdraw from his illegal con-
duct, he did accept responsibility and admitted that he "made a mis-
take by joining the Taliban." Lindh, 227 F. Supp. 2d at 571. Lindh
even made it a point to "condemn terrorism on every level." Id.
Whereas Gall thus voluntarily withdrew from his criminal activity
and Lindh at least showed remorse and regret for his serious offenses
after his apprehension, Abu Ali has done neither. Even after his arrest,
Abu Ali has refused to accept responsibility or express remorse of any
sort for his intention to inflict catastrophic harm. Neither the district
court nor the dissent nor Abu Ali himself contends otherwise.
Moreover, it bears repeating that Lindh did not travel overseas to
seek a fight with the United States. In fact, in the summer of 2001,
he turned down an opportunity to join operations against the United
States, instead desiring to fight the Northern Alliance on the battle-
fields in Afghanistan. Id. at 567-68. Unlike Lindh, Abu Ali sought an
opportunity to gravely damage this nation, joining an al-Qaeda terror-
UNITED STATES v. ALI 77
ist cell with the express purpose of engaging in jihad. Thus, in light
of these contrasts, a comparison to Lindh could not possibly serve as
a "sufficient justification[ ]" for the sentence imposed on Abu Ali.
Gall, 128 S. Ct. at 594.
Likewise, any comparison to McVeigh and Nichols should be
rejected where it is distinguished on the basis that Abu Ali’s conduct
"resulted in no loss of life or economic destruction." See post at 97.
We reject an emphasis on this distinction, and simply reiterate our
view that a defendant should not receive an extreme variance because
he did not actually inflict murder on a massive scale. In short, the
comparisons used to set the sentence — that of Abu Ali to John
Walker Lindh and Timothy McVeigh — were wholly inapposite. As
such, they cannot suffice to support the substantial variance from the
advisory Guideline range. See Gall, 128 S. Ct. at 597.
The argument is also made that Abu Ali received a heavy sentence.
While thirty years imprisonment is indeed an appreciable amount, the
sentence imposed also represents an appreciable variance. Therefore,
as the Supreme Court at least thrice made clear in Gall, the degree of
variance is something we can take into account when considering the
sentence’s reasonableness. See Gall, 128 S. Ct. at 591, 594-95, 597.
Finally, we have not failed to "view the justifications provided by
the district court as a whole." Post at 86 (internal quotations omitted).
To the contrary, we have "give[n] due deference" to each of the sen-
tencing court’s proffered justifications, we have "take[n] into account
the totality of the circumstances," and we have examined whether the
district court’s decision, "on a whole, justif[ies] the extent of the vari-
ance." Gall, 128 S. Ct. at 597. In so doing, we have determined that
the sentencing court’s other considerations cannot overcome its mis-
application of § 3553(a)(6), the factor which led to the location of its
sentence. A brief examination of some of these ancillary factors dem-
onstrates that the substantial variance at issue here cannot be sus-
tained in light of the district court’s erroneous comparisons to Lindh
and McVeigh.
To begin, the district court, as well as the dissent, notes the defen-
dant’s relative youth at the time he committed these heinous crimes.
See post at 88, 90. We recognize that Gall held it would not be unrea-
78 UNITED STATES v. ALI
sonable for a district court to consider a defendant’s "immaturity at
the time of the offense as a mitigating factor" when the defendant had
demonstrated a "dramatic contrast between [his] behavior before [the
offense] and his conduct after[wards]." Gall, 128 S. Ct. at 601. How-
ever, it is clear that Abu Ali has not demonstrated any such contrast
and, thus, is in a significantly different situation than the defendant in
Gall. Moreover, if we were to permit some sort of sweeping "youth
exception" for terrorism offenses, or any offense for that matter, we
would be disregarding Gall’s basic tenet that deviations must be made
on an individualized rather than wholesale basis. Id. at 597.
We are similarly unmoved by the district court’s (and dissent’s)
references to letters describing Abu Ali’s "general decent reputation
as a young man" and his overall "good character." See post at 88.
What person of "decent reputation" seeks to assassinate leaders of
countries? What person of "good character" aims to destroy thousands
of fellow human beings who are innocent of any transgressions
against him? This is not good character as we understand it, and to
allow letters of this sort to provide the basis for such a substantial
variance would be to deprive "good character" of all its content.
A final example is the district court’s observation that its variance
sentence alleviates the need for taxpayers to provide Abu Ali with
geriatric care at an advanced age. See post at 90. It seems uncon-
troversial to note that, in addition to its speculative nature, the con-
cern over who pays for the defendant’s incarceration can only go so
far in supporting a variance.
To be clear, the purpose of this discussion is not to quibble with
the various points made by the district court in support of its sentence.
Rather, we simply want to make plain that, having given each ratio-
nale its "due deference" and viewing the entire decision as "a whole,"
we believe the additional reasons provided by the district court do not
sufficiently "justify the extent of the variance" in light of the district
court’s misplaced Lindh and McVeigh comparisons. Gall, 128 S. Ct.
at 597. Thus, to the extent the district court’s decision relied on fac-
tors other than the comparisons to Lindh and McVeigh/Nichols, they
cannot overcome the misapplication of what was its primary rationale
and, as a result, cannot sustain this large a variance.
UNITED STATES v. ALI 79
3.
Finally, the assertion is made that we have invoked some sort of
"terrorism exception" to Gall. See post at 82-83. This is not the case.
Our decision creates no blanket exception, but rather rests on the spe-
cific nature of these circumstances. As to this, we merely apply Gall’s
injunction to ensure that the reasons offered by the district court "jus-
tify the extent of the variance." Gall, 128 S. Ct. at 597. It should be
remembered that Abu Ali was no idle planner. As Abu Ali made clear
on several occasions, he joined an al-Qaeda terrorist cell in Saudi
Arabia in order to engage in jihad against the United States. He plot-
ted to assassinate the President of the United States and other offi-
cials, to hijack and destroy American planes, and to attack nuclear
power stations in the United States. In short, his goals were of the
most serious and heinous sort.
Given the gravity of Abu Ali’s offense, and the district court’s
erroneous application of § 3553(a)(6), we have seen nothing to justify
a variance of the degree imposed here. It bears reminding that this is
not some mere doctrinal dispute of surpassing abstraction. At some
point, the debate risks becoming wholly divorced from the broader
reality: that the defendant sought to destabilize our government and
to shake it to its core. To this day, he wishes he had succeeded. Not
only that, but the defendant gave no discernable thought to the per-
sonal loss and heartache that would have been suffered by untold hun-
dreds or thousands of victims, spouses, children, parents, and friends
had his plans come to fruition. This is a fact that any sentencing sys-
tem, not just the United States Sentencing Guidelines, would take into
account. It is not too much to ask that a sentencing proceeding not
lose sight of the immensity and scale of wanton harm that was and
remains Abu Ali’s plain and clear intention.
E.
Based on the foregoing circumstances of this case, we find the dis-
trict court’s significant downward deviation not to be justified. Thus,
the sentence imposed must be vacated. While we of course leave the
sentencing function to the able offices of the trial court on remand,
we trust that any sentence imposed will reflect the full gravity of the
situation before us.
80 UNITED STATES v. ALI
VIII.
We do not wish to end this joint effort on a discordant note. We
wish to express our appreciation to the able counsel on both sides for
their efforts. We thank the district judge for handling this difficult
proceeding in such a capable fashion, and we take satisfaction in the
fact that we are able to find agreement on most, if not all, of the issues
presented herein.
For the foregoing reasons, the judgment is affirmed in part,
reversed in part, and remanded for further proceedings consistent with
this decision.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With respect, I dissent from the majority’s decision to reverse, as
unreasonably lenient, Abu Ali’s sentence of thirty years’ imprison-
ment followed by thirty years’ supervised release. In sentencing Abu
Ali, the district court correctly calculated the Guidelines range and
carefully considered the applicable statutory factors. The court then
explained its several, entirely reasonable justifications for finding this
sentence — a sentence less than the Guidelines recommendation of
life imprisonment, but substantially more than the twenty-year statu-
tory minimum —"sufficient, but not greater than necessary," to
achieve the statutory sentencing goals. 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007). In every respect, the district court thus properly
sentenced Abu Ali in full accord with Supreme Court precedent. See,
e.g., Gall v. United States, 128 S. Ct. 586 (2007); Kimbrough v.
United States, 128 S. Ct. 558 (2007). This is not to say that the district
court imposed the only possible reasonable sentence. But it certainly
fashioned a reasonable sentence; Gall and Kimbrough thus mandate
affirmance.
While purporting to adhere to Gall and Kimbrough, the majority
finds no "compelling justification" for the clearly reasonable sentence
UNITED STATES v. ALI 81
imposed here only by refusing to do so, and so fails to conduct a true
abuse-of-discretion review. In addition to refusing to follow the con-
trolling legal principles governing appellate review of sentencing
determinations, the majority also fails to consider most of the district
court’s careful and compelling justifications for the sentence imposed,
and it offers a singularly unpersuasive critique of the only justification
it does consider.
These critical errors — failing to conduct the proper, deferential
form of review and failing to evaluate the district court’s justifications
as a whole — produce a truly wrongheaded judgment. Even a glance
at the cases in which the Supreme Court has granted certiorari,
vacated, and remanded for consideration in light of Gall and Kim-
brough indicates just how out of step the majority is. For the Court
has repeatedly vacated judgments of appellate courts (including this
one) that committed the very same errors by reversing sentences in
which the district court had deviated more from the Guidelines range
than in the case at hand, with far less justification.1
1
See, e.g., United States v. Tom, 504 F.3d 89 (1st Cir. 2007) (sentence
for five counts of insider trading: thirty-six months’ probation — 100%
downward deviation from Guidelines range of thirty-seven to forty-six
months’ imprisonment — justified primarily on the basis of avoiding
sentencing disparity with co-defendant), vacated, No. 07-678, 2008 WL
169407 (Jan. 22, 2008); United States v. Taylor, 499 F.3d 94 (1st Cir.
2007) (sentence for sixteen counts of tax fraud: five years’ probation,
including one year in halfway house — 100% downward deviation from
Guidelines range of thirty to thirty-seven months’ imprisonment — justi-
fied primarily on the basis of letters detailing defendant’s good works),
vacated, 128 S. Ct. 878 (2008); United States v. Garate, 482 F.3d 1013
(8th Cir. 2007) (sentence for two counts of travel with intent to engage
in sexual conduct with a minor: thirty months’ imprisonment — 47%
downward deviation from Guidelines range of fifty-seven to seventy-one
months’ imprisonment — justified primarily on the basis of defendant’s
young age and immaturity at the time of the offense and lack of criminal
history), vacated, 128 S. Ct. 862 (2008); United States v. Pyles, 482 F.3d
282 (4th Cir. 2007) (sentence for distribution of crack cocaine: five
years’ probation — 100% downward deviation from Guidelines range of
sixty-three to seventy-eight months’ imprisonment — justified primarily
on basis of rehabilitation), vacated, 128 S. Ct. 865 (2008); United States
v. Trupin, 475 F.3d 71 (2d Cir. 2007) (sentence for tax evasion: seven
82 UNITED STATES v. ALI
The majority seems to believe that the particular context of the sen-
tence in this case, involving as it does terrorist crimes, renders appro-
priate some form of special — and less deferential — review. Even
if Congress could constitutionally institute such a rule, to date it has
not. Moreover, in Gall, the Supreme Court expressly rejected the
view that "[t]he uniqueness of the individual case" in any way
"change[s] the deferential abuse-of-discretion standard of review that
applies to all sentencing decisions." 128 S. Ct. at 598 (emphasis
added). Indeed, Gall cautions that "[t]he fact that the appellate court
might reasonably have concluded that a different sentence was appro-
priate," because of the nature of the offense, for example, "is insuffi-
cient to justify reversal of the district court." Id. at 597. Under no
circumstances does it fall to the appellate court to independently
months’ imprisonment — 83% downward deviation from Guidelines
range of forty-one to fifty-one months’ imprisonment — justified primar-
ily on basis of defendant’s age and family circumstances), vacated, 128
S. Ct. 862 (2008); United States v. Gentile, 473 F.3d 888 (8th Cir. 2007)
(sentence for conspiracy to possess pseudoephedrine: forty-eight months’
imprisonment — 52% downward deviation from Guidelines range of 100
to 125 months’ imprisonment — justified primarily on the "relatively
petty" nature of the defendant’s past crimes; sentence for co-defendant:
one day of time served plus probation — nearly 100% downward devia-
tion from Guidelines range of thirty-seven to forty-six months’ imprison-
ment — justified only on the basis of family ties and responsibilities),
vacated, 128 S. Ct. 866, 868 (2008); United States v. Kane, 470 F.3d
1277 (8th Cir. 2006) (sentence for aggravated sexual abuse to child: 120
months’ imprisonment — 47% downward deviation from Guidelines
range of 210 to 262 months’ imprisonment — justified primarily on basis
of rehabilitation), vacated, 128 S. Ct. 861 (2008); United States v.
McDonald, 461 F.3d 948 (8th Cir. 2006) (sentence for manufacturing
methamphetamine and creating substantial risk to human life: 132
months’ imprisonment — 50% downward deviation from Guidelines
range of 262 to 327 months’ imprisonment — justified on the basis of
defendant’s age and unlikelihood of recidivism), vacated, 128 S. Ct. 856
(2008); United States v. Goody, 442 F.3d 1132 (8th Cir. 2006) (sentence
for conspiring to manufacture and distribute methamphetamine: seventy-
two months’ imprisonment — 57% downward deviation from Guidelines
range of 168 to 210 months’ imprisonment — justified only on basis of
avoiding sentencing disparity with co-conspirator), vacated, 128 S. Ct.
853 (2008).
UNITED STATES v. ALI 83
assess the sentencing factors and "decide de novo whether the justifi-
cation for a variance is sufficient or the sentence [is] reasonable"; the
appellate court may assess only whether the district court’s own
determination that "the § 3553(a) factors, on the whole, justified the
sentence" is reasonable. Id. at 602.
I find the majority’s insistence on refusing to defer to the district
court’s considered judgment both inexplicable and deeply troubling,
particularly given that the majority does so in the immediate wake of
Gall and Kimbrough. In stark contrast to our sister circuits,2 the
majority has chosen to ignore the Supreme Court’s mandate that
appellate courts must, without exception, review sentencing decisions
under a highly deferential standard.
2
The other courts of appeals have faithfully followed the directives of
Gall and Kimbrough, reviewing with great deference and affirming sen-
tences that deviate substantially from the applicable Guidelines range.
See, e.g., United States v. Vowell, Nos. 06-5742, 06-6535, 2008 WL
220430 (6th Cir. Jan. 29, 2008) (affirming a 780-month sentence for
coercing a minor to engage in sexually explicit conduct for the purpose
of producing a visual depiction of that conduct and possession of child
pornography, though the Guidelines range was 188 to 235 months and
the statutory minimum sentence was 300 months, and noting in particular
that Gall "explicitly reined in appellate review of sentences"); United
States v. Lehmann, No. 06-3597, 2008 WL 150667 (8th Cir. Jan. 17,
2008) (affirming a sentence of only five years’ probation including six
months’ community confinement, for unlawful possession of a firearm as
a previously convicted felon, though the Guidelines range was thirty-
seven to forty-six months’ imprisonment, and noting that such a sentence
likely would not have been affirmed under the circuit’s pre-Gall prece-
dent); United States v. McBride, 511 F.3d 1293 (11th Cir. 2007) (affirm-
ing a sentence of only eighty-four months’ imprisonment for distributing
child pornography, though the Guidelines range was 151 to 188 months);
see also United States v. Phinazee, No. 06-5730, 2008 WL 320774, at *8
(6th Cir. Feb. 7, 2008) (affirming a 300-month sentence for conspiracy
to distribute crack and powder cocaine, though the Guidelines range was
360 months to life, and specifically noting that "the clear, overriding
import" of Rita, Gall, and Kimbrough "is that appellate courts must
respect the role of district courts and stop substituting their judgment for
that of those courts on the front line").
84 UNITED STATES v. ALI
I.
Although the majority recites Supreme Court sentencing directives,
it utterly fails to appreciate the importance of the most fundamental
of these directives — no longer may appellate courts engage in de
facto de novo review of district court sentencing determinations.
Instead, they must afford true deference to the district court’s greater
expertise and experience in sentencing.3 An appellate court may not
reverse any sentence, even one significantly deviating from the
Guidelines range, unless, after affording due deference to the district
court’s judgment, the appellate court concludes that the district court
abused its discretion and imposed an unreasonable sentence. Gall,
128 S. Ct. at 602; Kimbrough, 128 S. Ct. at 576. The majority cor-
rectly sets forth these legal principles, ante at 65-67, but then reso-
lutely refuses to recognize what they mean. It refuses to acknowledge
that deference means deference, that discretion means discretion, and
that appellate courts exercise only a limited role in reviewing sen-
tences. Hence, like the appellate court whose judgment the Supreme
Court reversed in Gall, the majority "state[s] that the appropriate stan-
dard" is "abuse of discretion," but actually "engage[s] in an analysis
. . . more closely resembl[ing] de novo review." Gall, 128 S. Ct. at
600.
United States v. Booker, 543 U.S. 220 (2005), itself signaled the
Supreme Court’s rejection of the majority’s approach to appellate
review of sentences. Booker expressly invalidated two statutory provi-
sions: § 3553(b)(1) (2000 ed. Supp. IV), which made the Sentencing
Guidelines mandatory, and § 3742(e) (2000 ed. Supp. IV), which
directed appellate courts to review de novo departures from the
Guidelines. 543 U.S. at 245. But, notwithstanding Booker, some
appellate courts continued to engage, as the majority does here, in de
3
As the Supreme Court observed in Gall, the sentencing court "is in a
superior position to find facts and judge their import under § 3553(a) in
the individual case." 128 S. Ct. at 597 (citing Br. for Fed. Pub. & Cmty.
Defenders et al. as Amici Curiae at 16). "Moreover, ‘[d]istrict courts
have an institutional advantage over appellate courts in making these
sorts of determinations . . . as they see so many more Guidelines sen-
tences than appellate courts do.’" Id. at 598 (quoting Koon v. United
States, 518 U.S. 81, 98 (1996)).
UNITED STATES v. ALI 85
facto de novo appellate review. Thus, the Supreme Court had to
unambiguously mandate the correct rule: "appellate ‘reasonableness’
review" asks only "whether the trial court abused its discretion" in
sentencing. Rita v. United States, 127 S. Ct. 2456, 2465 (2007).
Gall and Kimbrough reiterate that, for every sentencing case, the
era of de novo review is over. An appellate court must defer to the
district court, reviewing a sentence under a "deferential abuse-of-
discretion standard," even if the sentence is "significantly outside the
Guidelines range." Gall, 128 S. Ct. at 591 (emphasis added); see also
Kimbrough, 128 S. Ct. at 576. A sentence outside the Guidelines
range need only be reasonable, that is, involve no "significant proce-
dural error" or substantive unreasonableness. Gall, 128 S. Ct. at 597.
An appellate court’s independent judgment that a different sentence
might be preferred "is insufficient to justify reversal of the district
court." Id.
As Judge Sutton recently observed, writing for a majority of the en
banc Sixth Circuit, Gall and Kimbrough, together with Rita, make
clear that "Booker breathes life into the authority of district court
judges to engage in individualized sentencing within reason in apply-
ing the § 3553(a) factors to the criminal defendants that come before
them." United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008)
(emphasis added). But Booker only "empowered district courts, not
appellate courts and not the Sentencing Commission." Id. Moreover,
"[i]f there is a pattern that emerges from Rita, Gall, and Kimbrough,
it is that the district court judges were vindicated in all three cases,
and a court of appeals was affirmed just once — and that of course
was when it deferred to the on-the-scene judgment of the district
court." Id. The majority today refuses to acknowledge "the central les-
son from these decisions — that district courts have considerable dis-
cretion in this area and thus deserve the benefit of the doubt when we
review their sentences and the reasons given for them." Id.
In attempting to demonstrate that it has properly deferred to the
district court, the majority offers a single justification: a strawman.
The majority suggests that to affirm the sentence here would "eviscer-
ate[ ] any form of appellate review of trial court sentencing," institut-
ing "a regime of total unreviewability" of sentences. Ante at 74, 75.
Hardly. Supreme Court precedent does not require this; nor do I sug-
86 UNITED STATES v. ALI
gest that it does. But the Court’s precedent does require that an appel-
late court defer to a district court’s reasonable sentencing decisions,
even when those decisions depart from the advisory Guidelines range.
If the majority followed the Supreme Court teachings as faithfully as
it quotes them, and if it truly engaged in the proper deferential abuse-
of-discretion review, it would have to affirm the patently reasonable
sentence imposed here. Only by disregarding these fundamental prin-
ciples can the majority refuse to do so.
II.
In addition to its failure to follow these critical legal principles, in
undertaking its review of the district court’s sentencing decision, the
majority commits the same fundamental analytical error that resulted
in the Supreme Court’s reversal of the Eighth Circuit in Gall. The dis-
trict judge in the case at hand, like the district judge in Gall, offered
a number of persuasive justifications for its sentence. But the major-
ity, like the Eighth Circuit, makes no attempt to quantify the value of
the many "justifications provided by the District Judge," Gall, 128 S.
Ct. at 594, to "take into account the totality of the circumstances," id.
at 597, or to view the justifications provided by the district court as
"a whole," id. Rather than deferentially considering together all of the
district court’s justifications, the majority finds Abu Ali’s sentence
unreasonable due to purported isolated errors it identifies in the dis-
trict judge’s reasoning regarding a single sentencing factor.
Thus, the majority opinion, like the Eighth Circuit opinion in Gall,
wholly fails to "reflect the requisite deference and does not support
the conclusion that the District Court abused its discretion." Id. at
598. The majority’s failure to follow the express guidance in Gall that
appellate courts "give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the vari-
ance" is baffling — and fatal. See id. at 597 (emphasis added); see
also id. at 594. For any fair and deferential evaluation of all of the
district court’s numerous justifications for its sentencing decision
leads to only one conclusion — that the sentence is entirely reason-
able.
Given that the district court committed no procedural error,4 appro-
4
Neither the Government nor the majority contends to the contrary.
Nor could they, for clearly the district court did not commit procedural
UNITED STATES v. ALI 87
priate appellate review of the justifications offered by the district
court here involves only consideration of the "substantive reasonable-
ness" of the sentence. Id. at 597. This requires an appellate court to
assess "whether the District Judge abused his discretion in determin-
ing that the § 3553(a) factors supported [the] sentence . . . and justi-
fied . . . substantial deviation from the Guidelines range." Id. at 600.
Section 3553(a) instructs district courts to impose a sentence "suffi-
cient, but not greater than necessary," to further the following pur-
poses: "reflect the seriousness" of the crime; "promote respect for the
law"; deliver "just punishment"; "deter[ ] . . . criminal conduct"; "pro-
tect the public"; and provide the defendant with needed training, med-
ical care, or treatment. 18 U.S.C.A. § 3553(a). In determining the
sentence that best achieves these purposes, § 3553(a) directs the sen-
tencing court to consider a number of factors in addition to the statu-
tory minimum and advisory Guidelines range. Id. The district court
carefully considered each of the applicable factors and concluded that
they justified a sentence of thirty years’ imprisonment followed by
thirty years’ supervised release.
First, the district court considered "the nature and circumstances"
of the offenses and "the history and characteristics of the defendant."
Id. § 3553(a)(1). It found that these factors justified the sentence
imposed for several reasons. With respect to the offenses, the court
reasoned that while they were "extremely serious," Abu Ali’s partici-
pation in them was relatively attenuated and resulted in no injury to
any person or property. Thus, although Abu Ali conspired with terror-
ists in Saudi Arabia, the court noted that he had never planted bombs,
shot or even possessed weapons, committed acts of violence, or taken
any steps in the United States to further the conspiracy. Certainly,
these facts do not excuse Abu Ali’s conduct, but they do provide
some justification for imposing a sentence short of life imprisonment.
error. The district court properly ascertained the applicable statutory
minimum sentence, recognized that the Guidelines were advisory, calcu-
lated the proper Guidelines range, and then carefully determined and
thoroughly explained why the sentence accorded with the purposes set
forth in 18 U.S.C. § 3553(a). See Gall, 128 S. Ct. at 597.
88 UNITED STATES v. ALI
With respect to Abu Ali’s "history and characteristics," the district
court noted that Abu Ali had "been held under some very onerous
conditions," with extremely limited contact with family or the outside
world, and yet "correction officers who supervised him" described
him as "a model of behavior." The court also relied on Abu Ali’s
youth, lack of any criminal history, excellent academic record, and
the many letters attesting to his decency and good character. The
court concluded that "all these factors weigh in favor of" its chosen
sentence. This conclusion accords with Gall itself; there the Supreme
Court expressly recognized that similar characteristics justified a sen-
tence constituting a sizeable downward deviation from the Guidelines
range.5 128 S. Ct. at 601-02; see also id. at 593.
Second, the district court considered whether the proposed sen-
tence would "reflect the seriousness of the offense, . . . promote
respect for the law, and . . . provide just punishment." 18 U.S.C.A.
§ 3553(a)(2)(A). The court reiterated that it regarded Abu Ali’s
crimes as "very serious" and that a sentence must, and the chosen sen-
tence did, reflect that severity. The court also, however, discussed the
need for Abu Ali’s punishment to reflect only "the specific facts of
this case" and not the crimes of others, such as those who had actually
carried out attacks against this Country. The court concluded that a
sentence that would consume the majority of Abu Ali’s natural life,
forcing him "to spend most of his productive years in prison" and to
lose the chance to have a family or career, would "adequately and rea-
sonably" reflect the seriousness of his crimes, promote respect for the
law, and still provide just punishment for the offenses. The court fur-
ther noted that the "substantial term of supervised release" it imposed
to follow the term of imprisonment would "run for the remainder of
Mr. Abu Ali’s life expectancy." Thus, the district court both explicitly
recognized that the seriousness of Abu Ali’s crimes merited a severe
5
The majority dismisses the district court’s consideration of Abu Ali’s
background and character, concluding that the offense for which he was
being sentenced invalidated any other evidence of "good character." This
reasoning effectively renders any consideration of "history and character-
istics" irrelevant whenever a defendant has been convicted of a serious
offense. Surely this is not the result Congress intended when it specifi-
cally stated that the sentencing court "shall consider . . . the history and
characteristics of the defendant." 18 U.S.C.A. § 3553(a) (emphasis
added).
UNITED STATES v. ALI 89
punishment and that the sentence imposed, which would restrict Abu
Ali’s liberty for the rest of his life, constituted such punishment.
Once again, Gall itself provides support for the district court’s rea-
soning. There the Court recognized, in particular, the serious nature
of probationary sentences, observing that although not as "qualita-
tively . . . severe" as imprisonment, a noncustodial sentence does
"substantially restrict" a defendant’s "liberty." 128 S. Ct. at 595.
Focusing solely on the recommended prison sentence, the Court
explained, "gives no weight to the substantial restriction of freedom
involved in a term of supervised release or probation." Id. (internal
quotation marks omitted). The Court held that this rationale supplied
a reasonable justification for the district court’s conclusion that an
entirely noncustodial sentence, which constituted a substantial devia-
tion from the Guidelines range of three years’ imprisonment, provided
sufficient punishment.6 Here, given the far graver crimes, this ratio-
nale obviously would not justify a purely probationary sentence, but
it does supply justification for imposition of a thirty-year term of
imprisonment followed by a thirty-year supervised release sentence,
in lieu of a life sentence.
Third, the district court considered whether its proposed sentence
would "afford adequate deterrence to criminal conduct." 18 U.S.C.A.
§ 3553(a)(2)(B). The court concluded that it would, explaining that
the "very lengthy" thirty-year term of imprisonment constituted a
severe punishment sufficient to deter both Abu Ali and others who
might contemplate such crimes. Further, the court noted that imposi-
tion of a thirty-year term of supervised release after thirty years of
imprisonment would provide "additional deterrence" because "court
and probation and law enforcement" would monitor Abu Ali’s con-
duct for the remainder of his life, and he would "immediately face
6
The Gall Court’s discussion of the restrictions caused by noncustodial
sentences substantially undermines the majority’s complaint that the sen-
tence imposed here constitutes a "forty percent" deviation from the
Guidelines range of life imprisonment. The majority’s calculation fails to
account for the fact that, taken as a whole, the sentence of thirty years’
imprisonment followed by thirty years’ supervised release will almost
certainly constitute a substantial restraint on Abu Ali’s liberty for the rest
of his life.
90 UNITED STATES v. ALI
[yet another] lengthy term of imprisonment if he violates any law,
terms of release[,] or orders of this Court during the term of super-
vised release." Again, the district court’s reasoning finds support in
Gall. As noted above, in Gall, the Supreme Court similarly recog-
nized the significant restrictions on personal liberty attendant to non-
custodial sentences; indeed, the Gall Court concluded that given these
restrictions, no imprisonment was "necessary to deter" the defendant
"from engaging in future criminal conduct." Gall, 128 S. Ct. at 602.
Fourth, the district court considered whether its sentence would
"protect the public from further crimes of the defendant." 18 U.S.C.A.
§ 3553(a)(2)(C). The court concluded that it would. The court found
itself persuaded by Abu Ali’s lack of any prior criminal activity, his
"strong family ties," and his "strong contacts with [the] community"
that "the sentence being imposed will be adequate and reasonable to
protect the public from future crimes." Moreover, the court relied on
the fact that, when released from a thirty-year term of imprisonment,
Abu Ali would be "of substantially greater age" and so unlikely to
commit further crimes. As the district court noted, this conclusion
finds support in a Sentencing Commission study; in Kimbrough, the
Supreme Court recognized the value of the Commission’s research
and noted with approval the district court’s reliance on the Commis-
sion’s findings. 128 S. Ct. at 566, 568-69, 574 n.15, 575-76.
Fifth, the district court considered whether its sentence provided
Abu Ali "with needed educational . . . training, medical care" or other
treatment "in the most effective manner." 18 U.S.C.A. § 3553(a)
(2)(D). Again, the court found that it would. The court reasoned that
thirty years of imprisonment would permit Abu Ali, who had excelled
in his studies, some opportunity to pursue his education while incar-
cerated but would remove the burden on the public of paying for the
geriatric medical care that he would likely require if given a term of
life imprisonment.
Finally, after weighing all of these statutory factors, the court con-
sidered the need to avoid imposing disparate sentences upon similarly
situated defendants. See id. § 3553(a)(6). Initially recognizing that
there were "very few cases" similar to Abu Ali’s "for purposes of
determining what sentence will constitute unwarranted disparity," the
court measured Abu Ali’s conduct against that of the only three avail-
UNITED STATES v. ALI 91
able comparators: John Walker Lindh, Timothy McVeigh, and Terry
Nichols. After doing so, the court concluded that Abu Ali engaged in
conduct more similar to that of John Walker Lindh, who received a
sentence of twenty years’ imprisonment, than that of Timothy
McVeigh or Terry Nichols, who received a death sentence and life
imprisonment, respectively.
The majority explicitly acknowledges that "the district court exam-
ined each of the § 3553(a) sentencing factors." Ante at 68. Yet the
majority makes no effort to follow Gall’s directives to "take into
account the totality of the circumstances," assess the overall "value of
the justifications provided by the District Judge," and consider
whether "on the whole" the court’s analysis of the § 3553(a) factors
justifies the sentence. Gall, 128 S. Ct. at 594, 597 (emphasis added).
Despite the majority’s claim to the contrary, the record itself pro-
vides no excuse for the majority’s ill-considered refusal to apply the
proper deferential standard of review to all of the district court’s emi-
nently reasonable justifications for the selected sentence. According
to the majority, "the district court devoted most of its attention" to
§ 3553(a)(6), which "served as the driving force behind" the sentence.
Ante at 68. The majority is simply wrong. Any fair reading of the
record reveals that, as recounted above, the district court did not "de-
vote[ ] most of its attention" to § 3553(a)(6), but rather devoted care
and attention to each of the statutory sentencing factors.7 In this
regard, the Government’s arguments for vacating the sentence are
telling. Neither in its appellate brief nor in a letter to this court written
shortly after Gall issued, does the Government even suggest that anal-
7
The court’s written order does dedicate more words to the more com-
plicated § 3553(a)(6) analysis than to the other statutory factors, but it
thoroughly discusses all of the factors and nowhere indicates that it
relied more heavily on (a)(6) than on any other factor in selecting the
sentence. Moreover, the transcript of the sentencing hearing reveals that
when actually sentencing Abu Ali, the court similarly devoted careful
attention to each of the statutory factors; for example, the court devoted
fully as much time (and transcript pages) to consideration of the nature
and circumstances of the offense and history and characteristics of the
defendant, as mandated by § 3553(a)(1), as to consideration of the avoid-
ance of disparities among like defendants, as mandated by § 3553(a)(6).
92 UNITED STATES v. ALI
ysis of the § 3553(a)(6) sentencing factor was the "driving force"
behind the sentence. Indeed, the Government devotes little attention
to this factor in its appellate brief and does not so much as mention
the factor in its post-Gall letter.
Moreover, contrary to the majority’s suggestion, the district court
did not rely only on the § 3553(a)(6) factor to "quantitatively locate"
Abu Ali’s sentence. Ante at 68, 76. Nothing in the district court’s
opinion suggests that this factor played a larger role than the other
§ 3553(a) factors in determining the specific sentence. In fact, the
court’s reasoning regarding the other factors equally supported its
selection of a sentence of thirty years’ imprisonment, followed by
thirty years’ supervised release, a sentence that, notably, substantially
exceeded the twenty-year statutory minimum sentence.
If the majority had followed Gall’s directives, I believe it could
only have concluded that the district court’s analysis of the above
statutory factors was reasoned and reasonable. Taken together, as they
must be, the district court’s justifications provide ample support for
the selected sentence. Even in its response to this dissent, the majority
fails to mention, let alone dispute, many of the district court’s most
persuasive justifications for the sentence. Of course, some of the justi-
fications may be stronger than others, but when "due deference" is
afforded the district court’s decision, it becomes clear that the court
did not abuse its discretion in sentencing Abu Ali. See id. at 602.
III.
With minimal discussion of the district court’s thorough analysis
of other statutory factors, the majority finds Abu Ali’s sentence
unreasonable based on purported errors in the district court’s analysis
of the final sentencing factor, the avoidance of disparate sentences.
See 18 U.S.C. § 3553(a)(6). Even if a sentencing court does err in its
analysis of one of the many sentencing factors it considered, that sin-
gle error alone would certainly not establish that the court’s analysis
was unreasonable as a whole. See Gall, 128 S. Ct. at 594, 597. More-
over, in the case at hand, the district court did not err in its consider-
ation of even one sentencing factor. Thus, if the court’s consideration
of the § 3553(a)(6) sentencing factor is scrutinized in a vacuum, as
UNITED STATES v. ALI 93
the majority improperly does, the district court’s analysis still must be
judged reasonable.
The majority’s argument to the contrary rests on two contentions.
First, the majority contends that the district court unreasonably com-
pared Abu Ali to Lindh because the conduct of the two assertedly dif-
fered enormously and because Lindh pled guilty while Abu Ali did
not. Second, the majority contends that the district court unreasonably
compared Abu Ali to Nichols and McVeigh and then found their con-
duct distinguishable from Abu Ali’s because they inflicted great harm
on this Country, while Abu Ali’s evil plans came to nothing. Neither
contention is at all persuasive.
A.
Notwithstanding the majority’s arguments, Lindh’s criminal con-
duct is similar — not identical, but similar — to Abu Ali’s. Lindh
joined the Harakat ul-Mujahideen training camp seeking "to fight
with the Taliban on the front line in Afghanistan," and he "voluntarily
swore allegiance to Jihad." United States v. Lindh, 227 F. Supp. 2d
565, 567-68 (E.D. Va. 2002). Abu Ali joined the al-Faq’asi terrorist
cell in Saudi Arabia with the goal of facilitating terrorist attacks
against the United States. While at the ul-Mujahideen camp, Lindh
participated in a "program focused primarily on the goals of Jihad,"
and for twenty days received weapons instruction that included firing
numerous rounds on various types of weapons; he then participated
in training activities at an al-Qaeda-funded training camp, attended
lectures by Osama bin Laden, and gained "additional, more extensive
military training" in "weapons and explosives," as well as "orienteer-
ing, navigation, and battlefield combat." Id. Abu Ali traveled to al-
Qaeda-funded safehouses where he received similar, albeit far more
limited, training in weapons and explosives.
Moreover, Lindh, after obtaining his extensive battlefield training,
traveled with other al-Qaeda supporters to Northern Afghanistan
where he fought on the front line against the Northern Alliance from
September through November 2001. Id. at 568. After obtaining his
more limited training, Abu Ali researched flights on the internet for
possible hijacking, investigated targets for attack, and plotted assaults
on high United States officials — but, unlike Lindh, it is not even
94 UNITED STATES v. ALI
alleged that he ever took up arms against anyone. Although Abu-Ali’s
criminal conduct is certainly serious, so is Lindh’s. Abu Ali’s conduct
may or may not be more serious than Lindh’s, but it certainly does
not differ so much from Lindh’s as to eradicate the usefulness of any
comparison between the two.
Of course, as the majority observes, pre-Gall circuit precedent ren-
dered it reversible error for the sentencing court to disregard the dif-
ference between a defendant who refuses to plead guilty, like Abu
Ali, and another who has pled guilty and thereby "accepted responsi-
bility and provided valuable assistance to the government." See
United States v. Khan, 461 F.3d 477, 500 (4th Cir. 2006); United
States v. Perez-Pena, 453 F.3d 236, 242-43 (4th Cir. 2006). It seems
unlikely that this principle survives Gall. (The majority itself is
unwilling to say that, after Gall, these cases "would require vacating"
Abu Ali’s sentence. Ante at 71.) Even if this principle did survive
Gall, it would only prohibit the sentencing court from comparing Abu
Ali’s conduct to that of Lindh if it disregarded Lindh’s guilty plea.
But here the sentencing court did not disregard this fact. Rather, the
court carefully took this fact into account — and sentenced Abu Ali
to a term of imprisonment fifty percent greater than Lindh’s sentence.
Moreover, neither the cases cited by the majority nor any other cir-
cuit (or Supreme Court) precedent holds that a sentencing court’s
selection of an appropriate comparator need rest entirely on the defen-
dants’ relative levels of cooperation with government officials. See
Kahn, 461 F.3d at 500-01. Furthermore, these cases simply do not
address circumstances like the one at hand, in which the sentencing
court could identify only three possible, similarly situated defendants
to compare to the defendant in order "to avoid unwarranted sentence
disparities." 18 U.S.C.A. § 3553(a)(6). Common sense dictates that
when confronted with a small group of potential comparators, a sen-
tencing court in its discretion may reasonably take into account as
many of those individuals as possible to avoid sentencing disparities
between defendants who have committed similar criminal conduct;
plea status alone should not bar a comparison.8
8
The language of 18 U.S.C. § 3553(a)(6) confirms the conclusion that,
contrary to the majority’s assertion, the district court correctly declined
UNITED STATES v. ALI 95
And yet, the majority asserts that the difference in plea status
between Lindh and Abu Ali is a critical reason there can be no "useful
comparison" between the two defendants for sentencing purposes.
Ante at 71. The majority goes so far as to claim that "any comparison
to Lindh’s case would be tantamount to comparing the incompara-
ble." Id. The majority is certainly correct that these two individuals
are not identically situated. Although both engaged in terrorist con-
duct, they did have distinctly different goals, and they took different
steps toward achieving their goals. Lindh intended to inflict harm on
our allies; he extensively prepared and trained for this and succeeded
in doing so by engaging in armed battlefield warfare. Abu Ali
intended to inflict harm on United States officials and citizens; he too
prepared and trained (albeit less extensively) but in fact never
inflicted harm. But these differences provide an insufficient basis to
conclude that the sentencing court abused its discretion in finding that
the two terrorists’ conduct was similar enough to warrant consider-
ation of the sentence that had been imposed on one when imposing
sentence on the other.
B.
Nor, contrary to the majority’s suggestion, ante at 71-73, did the
district court err in relying on a comparison to Timothy McVeigh and
to limit its choice of comparators based solely on plea status. Section
3553(a)(6) instructs sentencing courts to consider the sentences imposed
on defendants "who have been found guilty of similar conduct" (empha-
sis added); the text does not require a comparison of formal "offenses of
conviction," which might better account for cases in which a defendant
has negotiated a plea bargain. See, e.g., Lindh, 227 F. Supp. 2d at 566
& n.2 (permitting Lindh to plead guilty to only one of ten counts and dis-
missing the remaining nine on the government’s motion). Booker itself
also reinforces the need for sentencing courts to focus on criminal con-
duct, not offenses of conviction when examining comparators. The Court
took care to explain that although "Congress’ basic goal in passing the
Sentencing Act was to move the sentencing system in the direction of
increased uniformity," that uniformity must be based on "similar rela-
tionships between sentences and real conduct, relationships that . . . [a
conviction-based approach] would undermine." Booker, 543 U.S. at 253-
54 (emphasis added).
96 UNITED STATES v. ALI
Terry Nichols and then holding that Abu Ali’s conduct differed suffi-
ciently from McVeigh’s and Nichols’ that a less severe sentence for
Abu Ali would be consistent with § 3553(a)(6).
As the Tenth Circuit recounted in McVeigh’s and Nichols’ respec-
tive criminal appeals, the two men "sought, bought, and stole all the
materials needed to construct" the explosive device that would ulti-
mately kill over a hundred people. United States v. McVeigh, 153
F.3d 1166, 1176-78 (10th Cir. 1998). McVeigh and Nichols placed
the "3,000-6,000 pound bomb comprised of an ammonium nitrate-
based explosive" inside a rented Ryder truck and parked the truck in
front of the Murrah Building in Oklahoma City. Id. at 1177-78. The
bomb exploded at 9:02 in the morning of April 19, 1995, killing "163
people in the building and five people outside," including nineteen
children and eight federal law enforcement officials. Id. at 1177. The
blast "tore a gaping hole into the front of the Murrah Building and
covered the streets with glass, debris, rocks, and chunks of concrete."
Id. Nichols’ own counsel estimated that the total cost of the horren-
dous crimes exceeded $650 million. United States v. Nichols, 169
F.3d 1255, 1277 (10th Cir. 1999).
The majority asserts that the sentencing court erred in relying on
the fact that Abu Ali took "fewer" and "less significant" steps toward
completing the conduct that was the subject of his conspiracy and,
further, that the court erred in looking to the actual impact of the
defendants’ actions. Thus, the majority holds that the sentencing court
unreasonably deviated from the Guidelines on the basis of unrealized
harms and improperly failed to appreciate the "utmost gravity" of Abu
Ali’s terrorism-related offenses. The majority acknowledges that Abu
Ali did not "do what McVeigh and Nichols did," but seems to insist
that the district court should have relied on no comparators rather than
consider the differences in conduct between Abu Ali and McVeigh
and Nichols. Ante at 73.
In so holding, it is in fact the majority that errs. In focusing on what
it perceives to be the severity of Abu Ali’s offenses, the majority fails
to appreciate and weigh the gravity of the actual harms and devastat-
ing losses of life inflicted by McVeigh and Nichols. Like Abu Ali,
Nichols and McVeigh wanted to "take . . . offensive action against the
federal government." McVeigh, 153 F.3d at 1177. Given the similarity
UNITED STATES v. ALI 97
of their overall objectives, the district court did not abuse its discre-
tion in determining that a comparison between Abu Ali and McVeigh
and Nichols was appropriate.
The court also did not abuse its discretion in determining that dif-
ferences in the three defendants’ respective sentences were not "un-
warranted" under § 3553(a)(6). Unlike Abu Ali, whose plots came to
nothing, Nichols’ and McVeigh’s criminal conduct directly resulted
in the loss of 168 American lives and hundreds of millions of dollars
of economic destruction. Certainly this constitutes a substantial differ-
ence — and one within the district court’s discretion to consider.
Moreover, contrary to the majority’s assertion, the district court’s
consideration of this difference does not "trivialize the severity of"
Abu Ali’s offenses. Ante at 72. Of course, I agree that we cannot wait
until attacks have occurred to punish terrorist operatives — but the
district court expressly recognized this, as even the majority acknowl-
edges. Id. The district court imposed a heavy sentence on Abu Ali.
That sentence, however, accounts for the fact that although Abu Ali,
like Lindh, McVeigh, and Nichols, engaged in reprehensible conduct,
in Abu Ali’s case, that conduct was highly attenuated from its
intended consequences and resulted in no loss of life or economic
destruction. Consideration of these factors under § 3553(a)(6) was not
unreasonable.
C.
Any decision to deviate from the Guidelines range necessarily
creates sentencing disparities between the person being sentenced —
here Abu Ali — and other, hypothetical, defendants convicted of the
same crimes and assigned identical initial Guidelines ranges. Perhaps
it is the disparities with these hypothetical defendants that concerns
the majority and causes it to focus its fire on the district court’s analy-
sis of the § 3553(a)(6) sentencing factor. But if that is the case, that
concern finds no support in Supreme Court precedent and provides no
basis for reversing the district court’s sentencing determination.
Quite the contrary. The Supreme Court has expressly and unequiv-
ocally acknowledged that an advisory Guidelines scheme will neces-
sarily create disparities between defendants convicted of identical
98 UNITED STATES v. ALI
crimes; it did so first in Booker, 543 U.S. at 263-264, and again more
recently in Kimbrough, 128 S. Ct. at 573-74. And the Court has
soundly rejected the view that such inevitable sentence disparities
render a sentence unreasonable upon appellate review. Gall, 128 S.
Ct. at 599-600; Kimbrough, 128 S. Ct. at 573-74. Rather, the Court
has explained, a sentencing court need only "consider[ ]" this factor,
Gall, 128 S. Ct. at 600, and "weigh" any disparity "against the other
§ 3553(a) factors." Kimbrough, 128 S. Ct. at 574.
Without even a nod at the Supreme Court’s rejection of the notion
that sentencing disparities alone may render a challenged sentence
unreasonable, the majority finds the district court’s disparity compari-
sons "inapposite" and therefore unreasonable. Ante at 68, 77. Yet the
majority suggests no other, more "apposite" comparisons. The majori-
ty’s reasoning leaves one to wonder whether the district court should
have instead relied solely on the other statutory factors and made no
comparison at all to other defendants under § 3553(a)(6).
We owe the district court deference to its analysis, given its exper-
tise and superior position to judge the import of relevant facts at sen-
tencing. Gall, 128 S. Ct. at 597. Yet the majority’s words belie any
deference it purports to accord the district court. The majority criti-
cizes the court’s selection of appropriate comparators, suggesting that
only hypothetical comparators will do. And the majority finds error
in the district court’s "fail[ure] to adequately appreciate" the magni-
tude of Abu Ali’s crimes relative to the other defendants it consid-
ered, ante at 72, even though the court did in fact articulate many of
the majority’s concerns regarding the serious nature of Abu Ali’s
offense. By simply demanding a different weighing of the
§ 3553(a)(6) considerations, the majority denies the district court the
deference demanded by law. See, e.g., Gall, 128 S. Ct. at 602. Of
course, our review of the sentence imposed must be "meaningful," but
it is beyond our power to reverse the sentence selected by the district
court simply in order to substitute our own judgment in its place. Id.
at 597.
IV.
The majority’s approach in this case reflects a fundamental misun-
derstanding of the shift in sentencing jurisprudence that has occurred
UNITED STATES v. ALI 99
since the Supreme Court issued its landmark decision in Booker. First
in Booker, then in Rita, and, most recently, in Gall and Kimbrough,
the Court has made it abundantly clear that district courts have wide
discretion to apply the § 3553(a) factors to the defendants before them
in order to fashion sentences that are appropriately tailored to the
individual case. There can be no mistaking the Supreme Court’s
repeated emphasis on the broad authority granted district judges —
and the Court’s simultaneous admonition to appellate judges to
refrain from anything even "resembl[ing] de novo review." Gall, 128
S. Ct. at 600 (emphasis added). Appellate judges are not to indepen-
dently consider whether the § 3553(a) factors justify a given sentence,
regardless of whether the sentence is within or outside of the Guide-
lines range, and regardless of whether those judges might have
selected a different sentence had they stood in the place of the district
judge.
The majority today pays lip service to the standard of review to
which it is bound and then proceeds to engage in the very de novo
review that Gall precludes. It affords no deference to the district
court’s considered judgment that the § 3553(a) factors as "a whole"
support the chosen sentence and instead parses the district court’s
opinion to note disagreement with the court’s application of a single
statutory factor. This approach vastly oversteps the bounds of appel-
late review and rejects the central lesson from Booker, Rita, Gall, and
Kimbrough that reviewing courts owe deference to both the overall
sentence selected by the district court and the justifications given for
that sentence. Proper application of this deferential abuse-of-
discretion standard requires affirmance.
I regret, and respectfully dissent from, the majority’s contrary hold-
ing.