United States v. Al Kassar

09-1051-cr
United States v. al Kassar
1
2 UNITED STATES COURT OF APPEALS

3 FOR THE SECOND CIRCUIT

4 August Term, 2010

5 (Argued: February 7, 2011 Decided: September 21, 2011)

6 Docket Nos. 09-1051-cr(L); 09-1057-cr(Con); 09-3972-cr(Con)

7 - - - - - - - - - - - - - - - - - - - -x
8
9 UNITED STATES OF AMERICA,
10
11 Appellee,
12
13 -v.- 09-1051-cr
14
15 MONZER AL KASSAR a/k/a ABU MUNAWAR a/k/a
16 EL TAOUS, LUIS FELIPE MORENO GODOY, TAREQ
17 MOUSA AL GHAZI,
18
19 Defendants-Appellants.
20
21 - - - - - - - - - - - - - - - - - - - -x
22
23 Before: DENNIS JACOBS, Chief Judge,
24 PETER W. HALL, Circuit Judge,
25 SHIRA A. SCHEINDLIN, District Judge.*
26
27
28 Appeals by three defendants from their criminal

29 convictions, following jury trials in the United States

30 District Court for the Southern District of New York

*
The Honorable Shira A. Scheindlin, of the United
States District Court for the Southern District of New York,
sitting by designation.
1
1 (Rakoff, J.), for conspiring to kill U.S. officers, to

2 acquire and export anti-aircraft missiles, and to provide

3 material support to a known terrorist organization. Two

4 defendants were additionally convicted of money laundering

5 and conspiring to kill U.S. citizens. Defendants argue on

6 appeal that federal subject-matter jurisdiction is lacking,

7 that their due process rights were violated, that

8 exculpatory evidence was improperly excluded, and that the

9 evidence of a conspiracy among them was legally

10 insufficient. As to the conviction for conspiring to

11 acquire and export anti-aircraft missiles, defendants argue

12 that the statute does not criminalize conspiracy, that the

13 jury was improperly instructed on the statute’s scienter

14 requirements, and that the defendants’ conduct falls within

15 the statute’s exception for conduct authorized by the U.S.

16 government. As to the conviction for conspiring to

17 knowingly support a terrorist organization, defendants argue

18 that the statute violates due process by not requiring that

19 the support be intended to further specifically criminal

20 activities.

21 Affirmed.

22

2
 1 FOR APPELLANTS: Roger Lee Stavis
2 Gallet Dreyer & Berkey LLP
3 New York, NY
4 (for Monzer al Kassar and Luis Felipe
5 Moreno Godoy)
6
7 Marc Antony Agnifilo
8 Brafman & Associates
9 New York, NY
10 (for Tareq Mousa al Ghazi)
11
12 FOR APPELLEE: Brendan R. McGuire
13 (Boyd M. Johnson III, Jesse M. Furman, on
14 brief)
15 On Behalf of Preet Bharara
16 U.S. Attorney’s Office,
17 Southern District of New York
18 New York, NY
19
20
21 DENNIS JACOBS, Chief Judge:
22
23 Defendants Monzer al Kassar, Luis Felipe Moreno Godoy,

24 and Tareq Mousa al Ghazi appeal their criminal convictions,

25 entered after jury trials in the United States District

26 Court for the Southern District of New York (Rakoff, J.),

27 for conspiring to kill U.S. officers, to acquire and export

28 anti-aircraft missiles, and to knowingly provide material

29 support to a terrorist organization. Al Kassar and Godoy

30 were also convicted of conspiring to kill U.S. citizens and

31 of money laundering. Defendants argue on appeal that

32 federal subject-matter jurisdiction is lacking, that their

33 due process rights were violated, that exculpatory evidence

3
1 was excluded, and that the evidence of a conspiracy among

2 them was legally insufficient. As to the conviction for

3 conspiring to acquire and export anti-aircraft missiles,

4 defendants argue that the statute does not criminalize

5 conspiracy, that the jury was improperly instructed on the

6 statute’s scienter requirements, and that the defendants’

7 conduct falls within the statute’s exception for conduct

8 authorized by the U.S. government. As to the conviction for

9 conspiring to knowingly support a terrorist organization,

10 defendants argue that the statute violates due process by

11 not requiring that the support be intended to further

12 specifically criminal activities.

13 Affirmed.

14

15 BACKGROUND

16 Since the 1970s, the U.S. government has suspected

17 Monzer al Kassar, a Spanish national and resident, of

18 illegal arms trafficking. United States v. al Kassar, 582

19 F. Supp. 2d 488, 491 (S.D.N.Y. 2008) (“Al Kassar I”). In

20 2005, the Drug Enforcement Administration (“DEA”) set up a

21 sting operation to apprehend him for selling arms illegally.

4
1 To this end, the DEA sent Samir Houchaimi, a

2 confidential informant, to locate Tareq Mousa al Ghazi, a

3 known associate of al Kassar, and set up a meeting with al

4 Kassar. Houchaimi went to Lebanon, where al Ghazi lived,

5 and won his trust over several months. Houchaimi told al

6 Ghazi that he was in the weapons trade, asked to meet with

7 al Kassar, and gave al Ghazi a fake end-user certificate1

8 for Nicaragua supplied by the DEA. Houchaimi asked al Ghazi

9 to arrange a meeting with al Kassar, and al Ghazi agreed.

10 Al Kassar arrived at the arranged meeting in Beirut

11 holding the end-user certificate Houchaimi had given to al

12 Ghazi. The meeting was fruitful, ending with al Kassar

13 inviting Houchaimi to his mansion in Spain to further

14 discuss the Nicaraguan arms deal.

15 At the meeting in Spain (in February 2007), Houchaimi

16 introduced al Kassar to “Carlos” and “Luis”--two undercover

17 DEA agents posing as members of FARC (a left-wing Colombian

18 terrorist organization)--and al Kassar introduced his

19 associate, Luis Felipe Moreno Godoy. The DEA agents told al

20 Kassar they were interested in buying weapons for FARC’s use

1
An end-user certificate is an official government
document authorizing a sale of particular weapons to a
particular end-user. It is required to conduct a legal
international weapons sale.
5
1 against the U.S. military in Colombia. They gave al Kassar

2 a list of weapons they wanted, which included anti-aircraft

3 missiles (“SAMs”). Al Kassar agreed to negotiate.

4 Over the next several months, in the presence of Godoy

5 and al Ghazi, al Kassar negotiated an arms deal with the two

6 DEA agents.2 The negotiators discussed at length FARC’s

7 intent to use the weapons against Americans and U.S. assets.

8 When al Kassar left the room during a break in negotiations,

9 al Ghazi advised the DEA agents how to negotiate effectively

10 with al Kassar. At the end of March, 2007, when the parties

11 had agreed to basic terms (including the sale of SAMs),

12 Godoy took the DEA agents to an Internet café and helped

13 them transfer a down payment (€100,000) to a bank account

14 controlled by al Kassar.

15 The next day (after confirming receipt of the down

16 payment), al Kassar again met with the DEA agents to discuss

17 details. Before the meeting, al Ghazi again counseled the

18 DEA agents on how best to secure the sale. At the meeting--

19 again in the presence of Godoy and al Ghazi--al Kassar gave

20 the DEA agents schematics for the SAMs he was selling and

2
The negotiations were conducted primarily in Spanish,
but al Kassar translated for al Ghazi and Houchaimi. Many
of the meetings were secretly recorded by Houchaimi.
6
1 explained how he planned to smuggle the weapons into

2 Colombia through a cargo ship destined for Suriname (with al

3 Kassar, as usual, translating for al Ghazi).

4 In May 2007, al Kassar and Godoy facilitated a meeting

5 between the DEA agents and the captain of the ship that

6 would smuggle the weapons. Before the meeting, the DEA

7 agents wired another payment ($135,000) to a bank account

8 controlled by al Kassar. Afterward, al Kassar and Godoy

9 visited arms factories in Bulgaria and Romania to secure the

10 weapons.

11 In June 2007, the DEA agents agreed to meet al Kassar

12 and Godoy in Bucharest to make final payment. Al Kassar

13 stayed in Spain, however, and sent Godoy and al Ghazi to

14 pick up the money. Pursuant to valid arrest warrants and in

15 coordination with the DEA, Romanian authorities arrested al

16 Ghazi and Godoy in Bucharest. The same day, Spanish

17 authorities arrested al Kassar at the Madrid International

18 Airport; he was carrying fake end-user certificates for the

19 FARC weapons and documents confirming final arrangements to

20 ship the weapons from Romania to Suriname. A search of al

21 Kassar’s mansion yielded documents establishing his and

22 Godoy’s participation in other arms deals and confirming

7
1 that al Kassar controlled the bank accounts into which the

2 DEA agents had wired money.

3 Godoy and al Ghazi were extradited here from Romania in

4 October 2007. During the flight, al Ghazi agreed to waive

5 his Miranda rights and admitted to the DEA agents that: (1)

6 he knew al Kassar was selling weapons, including SAMs, to

7 FARC; (2) he knew that FARC was a terrorist organization,

8 which planned to use the weapons to kill Americans; and (3)

9 he facilitated the deal because he was promised a €125,000

10 commission. In June 2008, al Kassar was extradited here

11 from Spain.

12 Once in the United States, the defendants were indicted

13 on four counts:

14 [1] Conspiracy to kill U.S. citizens in violation of 18
15 U.S.C. § 2332(b).
16
17 [2] Conspiracy to kill U.S. officers and/or employees
18 in violation of 18 U.S.C. §§ 1114, 1117.
19
20 [3] Conspiracy to acquire and export SAMs in violation
21 of 18 U.S.C. § 2332g.
22
23 [4] Conspiracy to provide material support to a known
24 terrorist organization in violation of
25 18 U.S.C. § 2339B.
26
27 Al Kassar and Godoy were also indicted on a fifth count:

28 [5] Money laundering in violation of 18 U.S.C. § 1956.
29

8
1 The district court denied defendants’ motion to dismiss

2 the indictments for violation of due process. Al Kassar I,

3 582 F. Supp. 2d at 498. The district court likewise denied

4 their motions (after hearings) to admit classified

5 information related to prior and contemporaneous

6 interactions with Spanish intelligence agents, allegedly for

7 the benefit of the United States. United States v. Al

8 Kassar, 582 F. Supp. 2d 498, 500 (S.D.N.Y. 2008) (“Al Kassar

9 II”). The district court concluded that the proffered

10 classified information was irrelevant, needlessly confusing,

11 or inadmissible prior acts evidence. Fed. R. Evid. 402-405.

12 Al Ghazi’s trial was severed when he was hospitalized a

13 week before the scheduled trial. Al Kassar and Godoy were

14 convicted by a jury on all five counts. Al Ghazi was tried

15 several months later and convicted of conspiring to kill

16 U.S. officials, to acquire and export SAMs, and to provide

17 material support to a known terrorist organization. Al

18 Ghazi was acquitted of conspiring to kill U.S. citizens. Al

19 Kassar and Godoy were sentenced in February 2009 to 30 years

20 and 25 years respectively. Al Ghazi was sentenced in July

21 2009 to 25 years.

9
1 The defendants timely appealed their convictions, but

2 do not contest the sentences.

3

4 DISCUSSION

5 On appeal, the defendants challenge their convictions

6 on the following grounds:

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

10
1 [VI] There was insufficient evidence he conspired
2 with al Kassar or Godoy to kill U.S. officers
3 and materially aid a known terrorist
4 organization.
5
6 The Sections in this opinion correspond to these

7 arguments.

8

9 I

10 The defendants argue that federal subject-matter

11 jurisdiction is lacking because: First, there is an

12 insufficient nexus between their conduct and the United

13 States for U.S. law to apply to them; second, any nexus that

14 does exist was created by the DEA agents, not the

15 defendants.

16

17 A

18 In a challenge to subject-matter jurisdiction, we

19 review a district court’s factual findings for clear error

20 and its legal conclusions de novo. APWU v. Potter, 343 F.3d

21 619, 623-24 (2d Cir. 2003). “[A]s a general proposition,

22 Congress has the authority to ‘enforce its laws beyond the

23 territorial boundaries of the United States.’” United

24 States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (quoting

25 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). The

11
1 presumption that ordinary acts of Congress do not apply

2 extraterritorially, see Sale v. Haitian Ctrs. Council, Inc.,

3 509 U.S. 155, 173 (1993), does not apply to criminal

4 statutes. United States v. Bowman, 260 U.S. 94, 98 (1922);

5 see also Yousef, 327 F.3d at 86. When the text of a

6 criminal statute is silent, Congressional intent to apply

7 the statute extraterritorially must “be inferred from the

8 nature of the offense.” Bowman, 260 U.S. at 98.

9 Four of the five counts on which the defendants were

10 convicted--conspiracy to kill U.S. nationals, conspiracy to

11 acquire and export SAMs, conspiracy to aid a known terrorist

12 organization, and money laundering--contain explicit

13 provisions applying them extraterritorially. See 18 U.S.C.

14 § 2332(b); id. § 2332g(b); id. § 2339B(d); id. § 1956(b)(2).

15 Although the conspiracy to kill U.S. officers or employees

16 count, id. §§ 1114, 1117, contains no explicit

17 extraterritoriality provision, the nature of the offense--

18 protecting U.S. personnel from harm when acting in their

19 official capacity--implies an intent that it apply outside

20 of the United States. The provision protects U.S.

21 employees, and a significant number of those employees

22 perform their duties outside U.S. territory. District

12
1 courts in our Circuit have applied it so, as have courts in

2 other circuits. See, e.g., United States v. Benitez, 741

3 F.2d 1312, 1317 (7th Cir. 1984) (applying §§ 1114, 1117

4 extraterritorially); United States v. Bin Laden, 92 F. Supp.

5 2d 189, 202 (S.D.N.Y. 2000) (applying § 1114

6 extraterritorially). We join them and conclude that §§ 1114

7 and 1117 apply extraterritorially.

8 When Congress so intends, we apply a statute

9 extraterritorially as long as doing so does not violate due

10 process. Yousef, 327 F.3d at 86. “‘In order to apply

11 extraterritorially a federal criminal statute to a defendant

12 consistently with due process, there must be a sufficient

13 nexus between the defendant and the United States, so that

14 such application would not be arbitrary or fundamentally

15 unfair.’” Id. at 111 (quoting United States v. Davis, 905

16 F.2d 245, 248-49 (9th Cir. 1990)). For non-citizens acting

17 entirely abroad, a jurisdictional nexus exists when the aim

18 of that activity is to cause harm inside the United States

19 or to U.S. citizens or interests. See United States v.

20 Peterson, 812 F.2d 486, 494 (9th Cir. 1987) (“Protective

21 jurisdiction is proper if the activity threatens the

13
1 security or government functions of the United States.”);

2 see also Yousef, 327 F.3d at 112; Davis, 905 F.2d at 249.

3 The defendants’ conspiracy was to sell arms to FARC

4 with the understanding that they would be used to kill

5 Americans and destroy U.S. property; the aim therefore was

6 to harm U.S. citizens and interests and to threaten the

7 security of the United States. The defendants observe that

8 this Court has never before found a sufficient

9 jurisdictional nexus based on a sting operation taking place

10 entirely outside the United States and involving solely

11 foreign citizens. But the geographical location of an

12 undercover investigation is irrelevant to the sufficiency of

13 the jurisdictional nexus. If an undercover operation

14 exposes criminal activity that targets U.S. citizens or

15 interests or threatens the security or government functions

16 of the United States, a sufficient jurisdictional nexus

17 exists notwithstanding that the investigation took place

18 abroad and focused only on foreign persons.

19 The defendants argue that, even if these U.S. laws

20 apply to them in theory, in practice such application is

21 “fundamentally unfair” because their conduct was so far

22 removed from any U.S. interest or person. True, the

14
1 defendants’ conduct never came close to harming any U.S.

2 person or property, but this is irrelevant for conspiracy

3 offenses, which often result in no palpable harm.

4 Jurisdictional nexus is determined by the aims of the

5 conspiracy, not by its effects.

6 Finally, the defendants argue that, nexus aside, U.S.

7 jurisdiction is fundamentally unfair because they lacked

8 fair warning that their conduct exposed them to U.S.

9 criminal prosecution. We disagree. The idea of fair

10 warning is that “no man shall be held criminally responsible

11 for conduct which he could not reasonably understand to be

12 proscribed.” Bourie v. City of Columbia, 378 U.S. 347, 351

13 (1964) (internal quotation marks omitted). Fair warning

14 does not require that the defendants understand that they

15 could be subject to criminal prosecution in the United

16 States so long as they would reasonably understand that

17 their conduct was criminal and would subject them to

18 prosecution somewhere. The defendants were not ensnared by

19 a trap laid for the unwary. Supplying weapons illegally

20 (i.e., without legitimate end-user certificates) to a known

21 terrorist organization with the understanding that those

22 weapons would be used to kill U.S. citizens and destroy U.S.

15
1 property is self-evidently criminal; and their deliberate

2 attempts to avoid detection suggested the defendants so

3 understood.

4

5 B

6 In the alternative, the defendants argue that any

7 jurisdictional nexus was created entirely by acts of the DEA

8 agents who “manufactured” jurisdiction over the defendants

9 in violation of due process.

10 “[T]he ‘manufactured jurisdiction’ concept is properly

11 understood not as an independent defense,” but as a

12 collection of three distinct defense theories: (1)

13 outrageous government conduct in violation of due process;

14 (2) entrapment; and (3) a failure by the prosecution to

15 prove an essential element of the crime. United States v.

16 Wallace, 85 F.3d 1063, 1065-66 (2d Cir. 1996). The

17 defendants raise the outrageous conduct defense as an

18 independent basis for overturning their convictions, and it

19 is discussed in Section II. Here, we reject the entrapment

20 and unproven-element theories.

21

16
1 1

2 Since each defendant’s entrapment argument was rejected

3 by a jury, no defendant can prevail on appeal unless he was

4 entrapped as a matter of law, i.e., he has proven that: (1)

5 the government originated the criminal design, (2) the

6 government suggested the design to the defendant and induced

7 him to adopt it, and (3) the defendant had no predisposition

8 to engage in the criminal design prior to the government’s

9 inducement. Jacobson v. United States, 503 U.S. 540, 548-49

10 (1992); United States v. Rahman, 189 F.3d 88, 131 n.16 (2d

11 Cir. 1999).

12 It is uncontested that the government originated the

13 illegal arms deal and induced the defendants’ participation

14 with money and political ideology. However, it cannot be

15 said as a matter of law that the defendants lacked a

16 predisposition to conspire to illegally sell arms to known

17 terrorists. The defendants’ knowledge of how to procure and

18 smuggle arms suggests experience in the trade; and their

19 positive reaction to the idea that the arms would be used to

20 kill Americans and harm U.S. interests suggests a

21 predisposition to support and participate in that goal. A

22 reasonable jury thus could have concluded that the

17
1 defendants were predisposed to commit the crimes for which

2 they were convicted. This may have been a close call,

3 especially with respect to al Ghazi, but it was a call for

4 the jury to make.

5

6 2

7 The unproved-element theory of manufactured

8 jurisdiction is that if the government unilaterally supplies

9 an essential element of a crime, the government has in

10 effect failed to prove that element as to the defendant.

11 See generally United States v. Archer, 486 F.2d 670 (2d Cir.

12 1973). In Archer, the case that originated this theory,

13 undercover federal agents sought to transform a state crime

14 into a federal offense by having the defendant participate

15 in a call which, without his knowing, was interstate. Id.

16 at 672-74. In the years since Archer, we have limited it.

17 See, e.g., Wallace, 85 F.3d at 1065; United States v. Keats,

18 937 F.2d 58, 64-65 (2d Cir. 1991). Now, even if the

19 government initiates an essential element of a crime,

20 jurisdiction is not manufactured if the defendant “then

21 takes voluntary actions that implicate the [government-

22 initiated] element.” Wallace, 85 F.3d at 1066.

18
1 Here, the DEA agents initiated an arms transaction with

2 the defendants by posing as terrorists and requesting SAMs

3 (and other weapons) from the defendants for use in killing

4 Americans. But the defendants responded to this request by

5 conspiring among themselves to acquire and sell these

6 weapons to what they believed was a terrorist organization

7 with knowledge that the weapons would be used to kill

8 Americans. Creating an opportunity for a defendant to

9 engage in criminal conduct does not violate the Constitution

10 and does not constitute a “manufacture” of jurisdiction--or

11 of any of the elements required to obtain a conviction for

12 that criminal conduct. See United States v. Schmidt, 105

13 F.3d 82, 91-92 (2d Cir. 1997). The government did not

14 manufacture jurisdiction because every element of the crimes

15 of conviction was established by evidence of voluntary

16 action by the defendants.

17 The defendants contend that the DEA agents created the

18 jurisdictional nexus with the United States by injecting the

19 notion that the weapons were going to FARC for use against

20 Americans. While it is true the DEA agents lied to the

21 defendants, this does not make the nexus artificial or

22 invalid. Sting operations, by nature, involve lies told to

19
1 the target. The defendants were convicted of conspiring to

2 sell SAMs to what they believed was a terrorist organization

3 for use against Americans, and that is what they conspired

4 to do. That their conspiracy was never going to succeed is

5 irrelevant. (It is to be hoped that all such schemes are

6 foredoomed one way or another.)

7 For these reasons, we conclude that the United States

8 has jurisdiction to prosecute the defendants.

9

10 II

11 The defendants argue that the DEA agents’ pervasive

12 involvement in the weapons deal amounted to outrageous

13 government conduct violative of their rights to due process

14 under the Fifth Amendment. They also argue that the

15 district court erred by not holding a hearing on this issue.

16

17 A

18 Whether to dismiss an indictment for outrageous

19 government conduct is a legal question, which we review de

20 novo. United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir.

21 1991). Government involvement in a crime may in theory

22 become so excessive that it violates due process and

20
1 requires the dismissal of charges against a defendant even

2 if the defendant was not entrapped. Rahman, 189 F.3d at

3 131; see also United States v. Russell, 411 U.S. 423, 431-32

4 (1973) (“[W]e may some day be presented with a situation in

5 which the conduct of law enforcement agents is so outrageous

6 that due process principles would absolutely bar the

7 government from invoking judicial processes to obtain a

8 conviction.”). But see Hampton v. United States, 425 U.S.

9 484, 490 (1976) (plurality) (“If the police engage in

10 illegal activity in concert with a defendant beyond the

11 scope of their duties the remedy lies, not in freeing the

12 equally culpable defendant, but in prosecuting the police

13 under the applicable provisions of state or federal law.”).

14 Unlike entrapment, which focuses on the defendant’s

15 predisposition, outrageous government conduct focuses on the

16 conduct of the government agents. United States v. Myers,

17 692 F.2d 823, 836 (2d Cir. 1982).

18 To establish a due process violation on this ground, a

19 defendant must show that the government’s conduct is “so

20 outrageous that common notions of fairness and decency would

21 be offended were judicial processes invoked to obtain a

22 conviction.” Schmidt, 105 F.3d at 91; see also Rahman, 189

21
1 F.3d at 131 (government action must shock the conscience to

2 sustain a due process violation); United States v. LaPorta,

3 46 F.3d 152, 160 (2d Cir. 1994) (government action must

4 “reach a demonstrable level of outrageousness before it

5 could bar conviction” (internal quotation marks omitted)).

6 This is a “very heavy” burden in light of our “well-

7 established deference to the Government’s choice of

8 investigatory methods.” Rahman, 189 F.3d at 131.

9 Generally, to be “outrageous,” the government’s involvement

10 in a crime must involve either coercion or a violation of

11 the defendant’s person. Schmidt, 105 F.3d at 91; Myers, 692

12 F.2d at 837. It does not suffice to show that the

13 government created the opportunity for the offense, even if

14 the government’s ploy is elaborate and the engagement with

15 the defendant is extensive. Schmidt, 105 F.3d at 91; Myers,

16 692 F.3d at 837. Likewise, feigned friendship, cash

17 inducement, and coaching in how to commit the crime do not

18 constitute outrageous conduct. Myers, 692 F.2d at 837-39.

19 The defendants allege no coercion, intimidation, or

20 physical force by the DEA agents. Instead, they argue that

21 the following facts amount to outrageous government conduct:

22 (1) no conspiracy existed among the defendants prior to the

22
1 government’s request for weapons, (2) the government “lured”

2 the defendants into the illegal arms deal by first offering

3 an arms deal that was legal, and by befriending al Ghazi and

4 winning his trust over a long period, (3) al Ghazi exhibited

5 some hesitation and apprehension about the illegal weapons

6 deal, (4) the government involved the defendants in a wide

7 variety of illegal activities, and (5) the government

8 induced the crimes using political rhetoric and money.

9 None of these actions, either separately or in

10 combination, rises to the legal standard of outrageous.

11 First, the absence of a conspiracy prior to government

12 involvement shows only that the government created the

13 opportunity for illegal conduct. See LaPorta, 46 F.3d at

14 154-55, 160-61 (finding no due process violation where

15 defendant was convicted of arson for fire he set only after

16 an undercover agent asked him to); Schmidt, 105 F.3d at 92

17 (creation of opportunity to commit a crime is not outrageous

18 government conduct); Myers, 692 F.2d at 837 (same). Second,

19 neither the lawful arms proposal nor the winning of trust

20 renders the government’s involvement coercive or outrageous;

21 these are commonplace and often necessary tactics for

22 infiltrating criminal enterprises. Third, transient

23
1 hesitation provides no basis for an excessive involvement

2 claim unless the government coerces the defendant, and no

3 coercion was applied here. Myers, 692 F.2d at 837-39.

4 Fourth, the large number of laws violated by the arms deal

5 is irrelevant to whether the government’s involvement was

6 excessive; if anything, it further supports the inference

7 that the defendants had notice that their conduct was

8 illegal. Fifth, financial and ideological inducements are

9 not outrageous conduct. See id. at 837-38 (even extremely

10 large financial inducements do not rise to the level of due

11 process violations).

12 While the sting operation in this case was elaborate

13 and prolonged, there was no coercion or physical force, and

14 nothing done was outrageous or a shock to the conscience.

15

16 B

17 The defendants argue that the district court improperly

18 denied them a pre-trial hearing on their jurisdictional and

19 due process defenses. They cite Cuervelo for the

20 proposition that in the context of such defenses, “[m]ost

21 often, conducting a hearing is the preferred course of

22 action in cases where disputed factual issues exist.” 949

24
1 F.2d at 567. However, “[n]othing in Cuervelo requires a

2 district court to conduct a hearing every time a defendant

3 alleges outrageous government misconduct.” LaPorta, 46 F.3d

4 at 160. Where, as here, there are no material facts in

5 dispute related to the alleged government misconduct, no

6 hearing is necessary. Id. We therefore conclude that the

7 district court did not err in denying the defendants’ motion

8 for a hearing on these issues.

9

10 III

11 The defendants challenge their convictions on the

12 further ground that the district court improperly refused to

13 admit classified evidence relating to past and

14 contemporaneous contact between the defendants and Spanish

15 intelligence officials, allegedly for the benefit of the

16 United States. In a written opinion, the district court

17 ruled that the evidence of past contacts was irrelevant and

18 confusing under Federal Rules of Evidence 401 and 403, and

19 amounted to inadmissible prior acts evidence under Federal

20 Rules of Evidence 404 and 405. Al Kassar II, 582 F. Supp.

21 2d at 500. The district court excluded the defendants’

22 subsequent proffer of evidence relating to contemporaneous

25
1 contacts with Spanish intelligence on similar grounds,

2 reasoning that its potential for confusion vastly outweighed

3 any probative value. The defendants argue that these

4 rulings denied them their constitutional right to present a

5 complete defense, and also constituted legal error under the

6 Federal Rules of Evidence. We reject both contentions.

7

8 A

9 Criminal defendants are “entitled by the Constitution

10 to a meaningful opportunity to present a complete defense.”

11 Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003); see also

12 Clark v. Arizona, 548 U.S. 735, 769 (2006) (holding that the

13 right to present a complete defense is “a matter of simple

14 due process”); Taylor v. Illinois, 484 U.S. 400, 408 (1988)

15 (holding that criminal defendants have the right to “put

16 before a jury evidence that might influence the

17 determination of guilt” (internal citations and quotation

18 marks omitted)). At the same time, this right is subject to

19 “reasonable restrictions.” Wade, 333 F.3d at 58. State and

20 federal rules of evidence may restrict evidence “to assure

21 both fairness and reliability in the ascertainment of guilt

26
1 and innocence.” Id. (quoting Chambers v. Mississippi, 410

2 U.S. 284, 302 (1973)).

3 The defendants argue that the denial of their requests

4 to offer the classified evidence prohibited them from

5 arguing, by way of a defense, that they had no intention of

6 completing the illegal arms deal. However, the defendants

7 presented this exact defense at their trials. True, the

8 excluded evidence might have marginally reinforced their

9 defense; but because it was neither compelling nor integral

10 to their defense theory, its exclusion does not amount to a

11 constitutional violation.

12

13 B

14 Even if the exclusion of their proffered evidence did

15 not amount to a constitutional violation, defendants argue

16 that it was legal error. Construing their argument as a

17 challenge to the district court’s evidentiary ruling, we

18 review it for abuse of discretion, reversing only if we find

19 manifest error. United States v. Miller, 626 F.3d 682, 687-

20 88 (2d Cir. 2010). Rule 403 determinations command especial

21 deference because the district court is in “the best

22 position to do the balancing mandated by Rule 403.” United

27
1 States v. Stewart, 590 F.3d 93, 133 (2d Cir. 2009) (internal

2 quotation marks omitted). So long as the trial court

3 “conscientiously balanced the proffered evidence’s probative

4 value with the risk for prejudice,” we will reverse its

5 conclusion “only if it is arbitrary or irrational.” United

6 States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006). Even

7 manifest error does not require reversal if the error was

8 harmless, Miller, 626 F.3d at 687-88, that is, if we can

9 conclude with fair assurance that the evidence would not

10 have substantially influenced the jury. United States v.

11 Jackson, 301 F.3d 59, 65 (2d Cir. 2002). We see no

12 reversible error.

13 The vast majority of the classified evidence proffered

14 by the defendants does not relate to the particular

15 conspiracies for which they were convicted. Instead, it

16 consists of prior good acts performed by the defendants

17 allegedly for the good of the United States; thus, it

18 constitutes prior act evidence used to “prove the character

19 of a person in order to show action in conformity

20 therewith.” Fed. R. Evid. 404(b). Such prior act evidence

21 is inadmissible under Federal Rule of Evidence 404(b) for

28
1 that purpose, id., as the district court properly concluded.

2 Al Kassar II, 582 F. Supp. 2d at 500.

3 Nor is the evidence admissible as proof of habit under

4 Rule 406, as the district court also properly concluded.

5 Id. at 501. A habit is “semi-automatic”--it involves a

6 “person’s regular practice of meeting a particular kind of

7 situation with a specific type of conduct, such as the habit

8 of going down a particular stairway two stairs at a time.”

9 Fed. R. Evid. 406 (1972 Proposed Rules). The defendants’

10 prior acts are not habitual in that way (or any other way),

11 nor would the few isolated prior acts proffered by the

12 defendants constitute a habit even if they were. U.S.

13 Football League v. Nat. Football League, 842 F.2d 1335, 1373

14 (2d Cir. 1988) (three or four prior acts over a long period

15 are not sufficient to establish a habit).

16 The district court also excluded the proffered evidence

17 under Rule 403, finding that any minimal probative value of

18 the prior acts was outweighed by the likelihood of jury

19 confusion. Al Kassar II, 582 F. Supp. 2d at 500. This was

20 not manifest error. Leaving aside the defendants’

21 mischaracterization of the proffered evidence on appeal, its

22 probative value was properly discounted, as most of it

29
1 related to wholly different events that took place many

2 years earlier and “would require a trial within a trial

3 before the jury could determine whether there was any

4 meaningful analogy at all.” Id.3 And the trial judge was

5 rightly concerned that, to the extent any of the evidence

6 could be construed to relate to the charged conspiracies,

7 the jury would find it extremely confusing, if not

8 incomprehensible.

9 Because we conclude that the defendants’ proffered

10 evidence is inadmissible under Rule 404 and that the

11 district court did not commit manifest error by excluding it

12 under Rule 403, we reject the defendants’ evidentiary

13 challenge to the exclusion.

14

15 IV

16 The defendants challenge their convictions for

17 conspiring to acquire and export SAMs in violation of 18

18 U.S.C. § 2332g on four grounds: [A] their conduct was not

3
The defendants argue on appeal that, in a case
charging conspiracy to kill United States nationals,
officers, and employees, the district court’s evidentiary
rulings “prevented [the defendants] from countering [the
Government’s] one-sided, biased version of the facts.” This
argument was not made to the district court. We express no
view whether, had defendants made this argument, the
evidence would have been admissible on this theory.
30
1 illegal under § 2332g because the statute does not

2 criminalize conspiracy; [B] their conduct was not illegal

3 under § 2332g because it was authorized by an agency of the

4 United States; [C] the statute’s scienter requirement was

5 improperly omitted from the jury instruction; and [D] the

6 evidence was legally insufficient to convict them.

7

8 A

9 The defendants contend that 18 U.S.C. § 2332g does not

10 criminalize conspiracy. We review de novo questions of

11 statutory interpretation. L-3 Commc’ns Corp. v. OSI Sys.,

12 Inc., 607 F.3d 24, 27 (2d Cir. 2010).

13 The relevant wording of § 2332g states:

14 (a)Unlawful Conduct. . . . it shall be unlawful
15 for any person to knowingly produce, construct,
16 otherwise acquire, transfer directly or
17 indirectly, receive, possess, import, export, or
18 use, or possess and threaten to use [SAMs].
19
20 . . .
21
22 (c) Criminal Penalties. . . . Any person who
23 violates, or attempts or conspires to violate,
24 subsection (a) shall be fined not more than
25 $2,000,000 and shall be sentenced to a term of
26 imprisonment not less than 25 years or to
27 imprisonment for life.
28
29 18 U.S.C. § 2332g(a), (c) (emphasis added). The plain text

30 of subsection (c) penalizes conspiring to acquire and export

31
1 SAMs. The defendants argue, however, that the conspiracy

2 language does not appear under the “unlawful conduct”

3 heading, so that the statute does not make conspiring

4 unlawful. This reading isolates the unlawful conduct

5 section of the statute from the rest of the act, and it

6 renders the conspiracy language in the “criminal penalties”

7 section not just superfluous but self-refuting; in this way

8 the defendants’ reading violates two canons of

9 interpretation: we read statutes as a whole, with no

10 section interpreted “in isolation from the context of the

11 whole Act,” United States v. Kozeny, 541 F.3d 166, 171 (2d

12 Cir. 2008) (internal quotation marks omitted); and we

13 interpret statutes “to give effect, if possible, to every

14 clause and word,” Duncan v. Walker, 533 U.S. 167, 174

15 (2001), and to “avoid statutory interpretations that render

16 provisions superfluous.” United States v. Anderson, 15 F.3d

17 278, 283 (2d Cir. 1994).

18 More broadly, we interpret statutes “to give effect to

19 congressional purpose.” Johnson v. United States, 529 U.S.

20 694, 710 n.10 (2000). The text of the Intelligence Reform

21 and Terrorism Prevention Act of 2004 states that the purpose

22 of what is now § 2332g is “to combat the potential use of

32
1 weapons that have the ability to cause widespread harm to

2 United States persons and the United States economy . . .

3 and to threaten or harm the national security or foreign

4 relations of the United States.” Pub. L. No. 108-458, Title

5 VI, § 6902, 118 Stat. 3638, 3769-70 (2004) (emphasis added).

6 The defendants’ interpretation of the statute would

7 undermine this purpose; in contrast, our interpretation--

8 that the statute criminalizes conspiracies to acquire SAMs--

9 furthers this purpose of combating the potential use of

10 these weapons. We conclude that 18 U.S.C. § 2332g

11 criminalizes conspiracies to acquire and export SAMs.

12

13 B

14 The defendants argue that their conspiracy to acquire

15 and export SAMs constituted action authorized by the United

16 States under 18 U.S.C. § 2332g(a)(3) because it was done

17 under the guidance and inspiration of the DEA agents. We

18 disagree.

19 Again, we review de novo questions of statutory

20 interpretation. L-3 Commc’ns Corp., 607 F.3d at 27. The

21 defendants rely on the exclusion of government conduct from

22 the general prohibition of 18 U.S.C. § 2332g:

33
 1 Th[e prohibition on acquiring and exporting SAMs]
2 does not apply with respect to . . . conduct by or
3 under the authority of the United States or any
4 department or agency thereof or of a State or any
5 department or agency thereof; or conduct pursuant
6 to the terms of a contract with the United States
7 or any department or agency thereof or with a
8 State or any department or agency thereof.
9
10 18 U.S.C. § 2332g(a)(3). The defendants argue that (though

11 they didn’t know it) the DEA authorized their conduct when

12 its agents asked the defendants to sell them SAMs. As the

13 defendants concede, this interpretation would effectively

14 foreclose sting operations as an enforcement technique; but

15 they argue that Congress uses an express “sting provision”

16 in statutes if it intends that sting operations be allowed.

17 See, e.g., 18 U.S.C. § 1956(a)(1) (criminalizing money

18 laundering whenever the defendant believed the money

19 involved resulted from unlawful activity even when the money

20 was secretly lawfully procured through a sting operation).

21 Section 2332g (as we held, supra) criminalizes

22 conspiracies to acquire and export SAMs. We decline to read

23 the statute simultaneously to ban sub silentio one of the

24 few effective ways for the government to combat such

25 conspiracies. See United States v. Dauray, 215 F.3d 257,

26 264 (2d Cir. 2000) (holding that we interpret statutes to

27 prevent absurd results).

34
1 Nor can it be said that a sting operation “authorizes”

2 the criminal conduct it exposes. The fact that undercover

3 government agents support an illegal act as part of a sting

4 operation does not “authorize” that act or otherwise make it

5 legal. The defendants’ analogy to the federal money

6 laundering statute is inapt; money laundering is a unique

7 crime because it requires not only that the defendant

8 believe the money involved is tainted by prior illegal

9 activity, but also that the money in fact be so tainted. It

10 is this second requirement that necessitates the statute’s

11 explicit sting exception: The exception is required not

12 because a sting operation secretly authorizes a defendant’s

13 transactions involving illegally obtained money (it

14 doesn’t), but because the sting operation secretly uses

15 money that was legally obtained. 18 U.S.C. § 2332g does not

16 share this second requirement--it criminalizes unauthorized

17 conduct related to all SAMs, not just those tainted by some

18 prior criminal transaction--so there is no need for an

19 explicit sting exception. Similar statutes, which

20 categorically criminalize the unauthorized acquisition and

21 sale of a particular object (regardless of whether that

22 object is tainted by prior illegal activity) have been read

35
1 to allow for detection by sting operations notwithstanding

2 the absence of an explicit sting provision. See, e.g.,

3 United States v. Wallace, 532 F.3d 126, 127 (2d Cir. 2008)

4 (affirming conviction for sale of cocaine to confidential

5 informant under the Controlled Substance Act despite its

6 exception for sales authorized by law and its lack of a

7 sting provision).

8 We conclude that the acquisition and export of SAMs (or

9 a conspiracy with that aim) at the behest of a government

10 agent acting undercover does not constitute “conduct by or

11 under the authority of the United States or any department

12 or agency thereof” and is therefore criminalized by 18

13 U.S.C. § 2332g.

14

15 C

16 The defendants argue that the jury charge on the

17 § 2332g conspiracy count erroneously omitted the scienter

18 requirement for the underlying offense of acquiring and

19 exporting SAMs. We disagree.

20 A jury instruction is erroneous if it “[misleads] the

21 jury as to the correct legal standard or [does] not

22 adequately inform the jury on the law.” United States v.

36
1 Goldstein, 442 F.3d 777, 781 (2d Cir. 2006). The defendants

2 objected to the § 2332g jury instruction before the district

3 court, but on different grounds from those they now advance

4 on appeal, and the district court accommodated the

5 defendants’ first objection. Because the defendants’

6 present objection was not made before the district court, we

7 review the instruction for plain error, reversing only where

8 (1) the instruction was erroneous, (2) the error was plain

9 (i.e., obvious), (3) the error prejudiced the defendants’

10 substantial rights, and (4) that prejudice affected the

11 fairness, integrity, or public reputation of the judicial

12 proceeding. United States v. Joyner, 313 F.3d 40, 45 (2d

13 Cir. 2002); see also United States v. Johnson, 529 F.3d 493,

14 501-02 (2d Cir. 2008) (reserving plain error only for “those

15 circumstances in which a miscarriage of justice would

16 otherwise result” (internal quotation marks omitted)). An

17 erroneous instruction is prejudicial unless “it is clear

18 beyond a reasonable doubt that a rational jury would have

19 found the defendant guilty absent the error.” Goldstein,

20 442 F.3d at 781.

21 A conspiracy conviction under § 2332g requires two

22 distinct findings as to scienter. First, the defendant must

37
1 intend to agree to participate in the conspiracy (i.e., it

2 is not enough that the defendant participated unwittingly or

3 joined under the mistaken impression that the conspiracy

4 involved some other, legal activity). See United States v.

5 Morgan, 385 F.3d 196, 206 (2d Cir. 2004) (“Conspiracy is a

6 specific intent crime: To be guilty of conspiracy, there

7 must be some evidence from which it can reasonably be

8 inferred that the person charged with conspiracy knew of the

9 scheme alleged in the indictment and knowingly joined and

10 participated in it.” (internal quotation marks omitted)).

11 Second (in this case), the aim of the conspiracy must be to

12 “knowingly produce, . . . acquire, transfer, . . . receive,

13 possess, import, export, . . . use, or possess and threaten

14 to use [SAMs]” (i.e., the conspirators cannot just happen to

15 acquire an SAM while intending to acquire some other weapon

16 or object). 18 U.S.C. § 2332g(a)(1) (emphasis added); see

17 also Ingram v. United States, 360 U.S. 672, 678 (1959)

18 (“Conspiracy to commit a particular substantive offense

19 cannot exist without at least the degree of criminal intent

20 necessary for the substantive offense itself.”) (internal

21 quotation marks and alterations omitted). To be accurate, a

38
1 jury instruction on a § 2332g conspiracy must convey both of

2 these scienter requirements.

3 The district judge gave the following jury instruction:

4 Count Three charges both defendants with
5 conspiring to acquire and export antiaircraft
6 missiles. In order to sustain its burden of proof
7 with respect to this charge as to a given
8 defendant, the government must prove beyond a
9 reasonable doubt each of the two elements: First,
10 the existence of the charged conspiracy, as
11 further described below; and second, that the
12 defendant you are considering intentionally joined
13 and participated in the conspiracy during the
14 applicable time period in order to further its
15 unlawful purpose.
16
17 . . .
18
19 The conspiracy alleged in Count Three,
20 however, is materially different from the
21 conspiracies alleged in Counts One and Two.
22 Specifically, in order to satisfy the first
23 element of Count Three, the government must prove
24 beyond a reasonable doubt that the purpose of the
25 conspiracy was to acquire and export explosive or
26 incendiary rockets or missiles guided by a system
27 enabling the rockets or missiles to seek aircraft.

28 In reviewing a jury instruction, we “examine not only

29 the specific language that the defendant challenges but also

30 the instructions as a whole to see if the entire charge

31 delivered a correct interpretation of the law.” United

32 States v. Bala, 236 F.3d 87, 94-95 (2d Cir. 2000) (internal

33 quotation marks omitted). A defendant “has no right to

34 demand that required factual findings be stated in any

39
1 particular number of elements,” and when an offense has

2 ramified elements, a jury instruction need not separately

3 delineate each element so long as “when viewed as a whole,

4 [it] adequately instruct[s] the jury as to all factual

5 findings required to support conviction.” United States v.

6 Quinones, 511 F.3d 289, 315 (2d Cir. 2007); see also United

7 States v. Conway, 73 F.3d 975, 980 (2d Cir. 1995) (“[The]

8 trial judge retains extensive discretion in tailoring jury

9 instructions, provided that they correctly state the law and

10 fairly and adequately cover the issues presented.”).

11 The district court’s jury instruction here included

12 both scienter requirements, though they were not delineated

13 as independent elements. As to the first, the instruction

14 required the jury to find that the defendant “intentionally

15 joined and participated in the conspiracy.” As to the

16 second, the instruction required the jury to find “that the

17 purpose of the conspiracy was to acquire and export [SAMs].”

18 This adequately conveyed the knowledge requirement for the

19 underlying substantive offense; if the jury found that the

20 defendants intentionally joined a conspiracy that had as a

21 purpose to acquire and export SAMs, then the jury also found

40
1 that the defendants knew the purpose of that conspiracy was

2 to acquire and export SAMs.

3 Viewed as a whole, the jury instruction “adequately

4 instructed the jury as to all factual findings required to

5 support conviction.” Quinones, 511 F.3d at 315. Therefore,

6 the instruction did not mislead the jury and was not

7 erroneous, let alone plainly so.

8

9 D

10 Finally, the defendants argue that the evidence

11 presented by the prosecution was legally insufficient to

12 establish that they conspired with each other to acquire and

13 export SAMs.

14 We review de novo challenges to criminal convictions

15 based on insufficiency of evidence; however, in assessing

16 the evidence, we apply the same deferential standard as the

17 district court, viewing the evidence in the light most

18 favorable to the government, drawing all reasonable

19 inferences in the government’s favor, and resolving all

20 questions of credibility in the government’s favor. United

21 States v. Abu-Jihaad, 630 F.3d 102, 135 (2d Cir. 2010).

41
1 To overturn a conviction for insufficiency of the

2 evidence, a defendant must establish that, after construing

3 the evidence in the light most favorable to the prosecution,

4 there is an element of the crime of conviction that no

5 rational jury could have found beyond a reasonable doubt.

6 United States v. Hassan, 578 F.3d 108, 122 (2d Cir. 2008).

7 Knowledge of a conspiracy or proximity to it is by itself

8 insufficient to prove that a defendant joined the

9 conspiracy. United States v. Desimone, 119 F.3d 217, 223

10 (2d Cir. 1997). Still, the government may prove a

11 defendant’s involvement in a conspiracy through

12 circumstantial evidence, such as the defendant’s presence at

13 critical moments of the conspiracy, lack of surprise when

14 discussing the conspiracy with others, possession of items

15 important to the conspiracy, and making of false exculpatory

16 statements or otherwise exhibiting consciousness of guilt.

17 Id.; In re Terrorist Bombings of U.S. Embassies in East

18 Africa, 552 F.3d 93, 113 (2d Cir. 2008); United States v.

19 Rodriguez, 392 F.3d 539, 544 (2d Cir. 2004).

20 The defendants argue that the district court

21 erroneously allowed the prosecution to rely on evidence that

22 they engaged in other arms transactions with the informants

42
1 to overcome the lack of evidence that they conspired with

2 each other to acquire and export SAMs. We disagree and

3 conclude that there was sufficient evidence that the

4 defendants conspired with each other to acquire and export

5 SAMs.

6 A conspiracy violation of § 2332g requires three

7 elements: (1) the defendants intended to agree (2) with each

8 other, not just with undercover agents, (3) to knowingly

9 acquire and export SAMs. See Desimone, 119 F.3d at 223

10 (“Because a conspiracy requires the participation of at

11 least two culpable co-conspirators, it follows that a person

12 who enters into such a conspiratorial agreement while acting

13 as an agent of the government, either directly or as a

14 confidential informant, lacks the criminal intent necessary

15 to render him a bona fide co-conspirator.” (brackets,

16 internal citations, and internal quotation marks omitted)).

17 At trial, the government presented evidence of the

18 following: (1) Al Kassar negotiated a sale of SAMs to the

19 DEA agents in the presence of al Ghazi and Godoy,

20 translating for al Ghazi as needed; (2) al Ghazi confessed

21 to working with al Kassar and Godoy to sell SAMs to the DEA

22 agents in order to make a profit; (3) in the presence of

43
1 Godoy and al Ghazi, al Kassar provided the DEA with

2 schematics of SAMs and explained how the missiles could be

3 used to shoot down American helicopters; (4) Godoy and al

4 Kassar facilitated a meeting between the DEA agents and the

5 captain of the cargo ship that was to smuggle SAMs into

6 Suriname; (5) Godoy forwarded emails to al Kassar from the

7 DEA agents, which discussed al Kassar’s agreement to sell

8 SAMs to the DEA agents; (6) al Kassar and Godoy traveled to

9 factories that produced SAMs after meeting with the DEA

10 agents; (7) al Ghazi advised the DEA agents on how to

11 successfully negotiate the weapons deal with al Kassar, with

12 knowledge that the deal included SAMs; (8) Godoy and al

13 Ghazi traveled to Romania to pick up the final payment for a

14 sale of weapons that included SAMs.

15 Taken in the light most favorable to the prosecution

16 and drawing all reasonable inferences and credibility

17 determinations in its favor, we conclude that this evidence

18 was legally sufficient for a rational jury to conclude that

19 each of the three defendants intentionally conspired with

20 each other to knowingly acquire and export SAMs.

21 Having rejected all of the defendants’ challenges, we

22 affirm their convictions under 18 U.S.C. § 2332g.

44
1 V

2 The defendants challenge their convictions under

3 18 U.S.C. § 2339B (prohibiting material support for a known

4 terrorist organization), arguing in the alternative that the

5 district court misinterpreted the statute’s scienter

6 requirements, or the statute is unconstitutional under the

7 Fifth Amendment. We review de novo questions of a statute’s

8 interpretation and constitutionality. United States v.

9 Pettus, 303 F.3d 480, 483 (2d Cir. 2002).

10 In relevant part, § 2339B states:

11 Whoever knowingly provides material support or
12 resources to a foreign terrorist organization, or
13 attempts or conspires to do so, shall be fined
14 under this title or imprisoned not more than 15
15 years, or both . . . . To violate this paragraph,
16 a person must have knowledge that the organization
17 is a designated terrorist organization . . . that
18 the organization has engaged or engages in
19 terrorist activity . . . or that the organization
20 has engaged or engages in terrorism.
21
22 18 U.S.C. § 2339B(a)(1). The statute thus imposes two

23 express scienter requirements: that the aid be intentional

24 and that the defendant know the organization he is aiding is

25 a terrorist organization or engages in acts of terrorism.

26 Id. The statute is silent as to whether the defendant must

27 intend that his aid support the terrorist aims of the

28 organization.

45
1 The defendants argue that this specific intent

2 requirement should be read into the statute and that the

3 district court committed reversible error in failing to so

4 instruct the jury. This argument is foreclosed by Holder v.

5 Humanitarian Law Project, 130 S. Ct. 2705 (2010) (“Law

6 Project”). As Law Project interpreted § 2339B, it does not

7 require the government to show that a defendant who

8 supported a terrorist organization (which might do other

9 things) intended to aid its specifically terrorist aims:

10 “Congress plainly spoke to the necessary mental state for a

11 violation of § 2339B, and it chose knowledge about the

12 organization’s connection to terrorism, not specific intent

13 to further the organization’s terrorist activity.” Id. at

14 2717. We therefore reject the defendants’ request that we

15 read this scienter requirement into the statute.

16 The defendants argue, in the alternative, that absent

17 this scienter requirement the statute violates the Fifth

18 Amendment’s Due Process Clause in two ways: [i] by

19 criminalizing mere membership, and [ii] by criminalizing a

20 status insufficiently connected to illegal activity to

21 satisfy the “personal guilt” requirement of due process.

22 See Scales v. United States, 367 U.S. 203, 224-25 (1961) (a

46
1 law criminalizing mere membership in an organization, even

2 one that advocates illegal activity, violates Due Process);

3 id. (“[G]uilt is personal, and when the imposition of

4 punishment on a status or on conduct can only be justified

5 by reference to the relationship of that status or conduct

6 to other concededly criminal activity . . . that

7 relationship must be sufficiently substantial to satisfy the

8 . . . personal guilt” requirement of due process.).

9 Law Project, which upheld § 2339B against the claim

10 that it unconstitutionally criminalized mere membership,

11 also forecloses these arguments.4 130 S. Ct. at 2730 (“[§

12 2339B] does not penalize mere association with a foreign

13 terrorist organization. . . . What [it] prohibits is the

14 act of giving material support. . . . Our decisions

15 scrutinizing penalties on simple association or assembly are

16 therefore inapposite.”). We therefore reject the

17 defendants’ argument that the statute’s lack of a specific

18 intent requirement amounts to the criminalization of mere

19 membership.

4
Law Project construed this as a First Amendment, not
Fifth Amendment, challenge, but its reasoning applies
equally to challenges under either Amendment.
47
1 Law Project also concluded that the aid prohibited by

2 § 2339B (whether accompanied by specific intent to further

3 the organization’s terrorist activity or not) is intimately

4 associated with criminal activity. Id. at 2729 (“Congress

5 and the Executive, however, have concluded [that] . . . the

6 designated foreign terrorist organizations are so tainted by

7 their criminal conduct that any contribution to such an

8 organization facilitates that conduct.”) (internal quotation

9 marks omitted). The “personal guilt” requirement of the Due

10 Process Clause is therefore satisfied by the knowing supply

11 of material aid to a terrorist organization.

12 For these reasons, we conclude that the district

13 court’s jury instruction was correct and that 18 U.S.C. §

14 2339B does not violate the Fifth Amendment, notwithstanding

15 that no proof is required that a defendant intend his aid to

16 support the terrorist activity of a terrorist group.

17

18 VI

19 Al Ghazi challenges the legal sufficiency of the

20 evidence that he conspired with al Kassar and Godoy to kill

21 U.S. officers and to materially support a known terrorist

22 organization. 18 U.S.C. §§ 1114, 1117, 2339B. The standard

48
1 of review for this challenge is set out above in Section

2 IV.D. Under that standard, we reject al Ghazi’s challenge.

3 At trial, the government presented evidence of the

4 following: (1) al Ghazi told the DEA agents he knew al

5 Kassar was negotiating a weapons deal with FARC; (2) al

6 Ghazi told the DEA agents he knew FARC was a terrorist

7 organization; (3) al Ghazi told the DEA agents he knew the

8 weapons deal included SAMs; (4) al Ghazi told the DEA agents

9 he knew FARC intended to use the weapons they were buying to

10 kill U.S. military personnel; (5) al Ghazi told the DEA

11 agents he facilitated the weapons deal to get a commission;

12 (6) al Ghazi was present during key negotiations in the

13 weapons deal, with al Kassar translating for him when

14 Spanish was spoken; (7) al Ghazi stayed at al Kassar’s

15 mansion during the negotiations with no apparent purpose

16 other than to participate in them; (8) al Ghazi advised the

17 DEA agents how to successfully complete the weapons deal

18 with al Kassar; (9) al Kassar told the DEA agents that al

19 Ghazi was instrumental to his decision to negotiate with

20 them; and (10) al Ghazi went to Romania for the purpose of

21 receiving the final payment for the weapons that al Kassar

22 sold to the DEA agents, which included SAMs. Taken in the

49
1 light most favorable to the prosecution and construing all

2 inferences and credibility determinations in its favor, this

3 evidence is sufficient for a reasonable jury to conclude

4 that al Ghazi intentionally agreed with al Kassar and Godoy

5 to acquire SAMs and other weapons, and to sell them to an

6 organization he knew engaged in terrorism and which he knew

7 would use those weapons to kill U.S. personnel.

8 We therefore reject al Ghazi’s insufficiency challenge.

9

10 CONCLUSION

11 For the reasons discussed above, the judgments of the

12 district court are AFFIRMED.

50