United States v. Farhane

DEARIE, Chief District Judge,

dissenting in part.

I write to voice my strong disagreement with the majority’s conclusion that the evidence is legally sufficient to sustain the attempt conviction. I otherwise concur.

This is not an attempt. I agree that application of the familiar “substantial step” formula must be made on a case-by-case basis and that in some cases the adequacy of the proof may not be readily determined, but this is not such a case. I agree that the distinction between various forms of material support may prove meaningful in some cases, but again this is not such a case. Whatever the label, the substantive crime was so remote in time, place and objective that one is left only to speculate as to what, if anything, would have happened had Sabir in fact been in a position to pursue the conspiratorial goal.

Without the benefit of meaningful input from the litigants or trial court, moreover, the majority appears to expand the reach of “personnel”1 to include those who do nothing beyond “pledge[] to work under the direction of the organization.” Majority Op., ante at [152], This conclusion is without precedent and hinges upon what is, in my view, a seriously flawed interpretation of the material support statutes.

I.

There is no question that, construed in the government’s favor, the evidence supports the conspiracy count. A rational jury could have found that, at the single meeting with his co-conspirator and the undercover agent, Sabir indeed agreed to provide medical support to wounded al Qaeda somewhere in Saudi Arabia at some point in the future. Fairly stated, the majority further concludes that once Sabir offered these services, he took a substantial step toward becoming the organization’s “on call” doctor. The remaining evidence to support the attempt conviction is Sabir’s swearing an oath to al Qaeda, which the government acknowledges is not a criminal act, and his providing contact numbers, which the decisions of this Circuit confirm is not a substantial step toward the commission of a crime.

The majority is correct that a “substantial-step analysis necessarily begins with a proper understanding of the crime being *176attempted.” Majority Op., ante at [147]. Count Two of the indictment charged Sabir with attempting to provide “material support” to al Qaeda in the form of “personnel, training, and expert advice and assistance, as those terms are defined” in 18 U.S.C. §§ 2339A-B, “to wit ... attempting] to provide medical support to wounded jihadists.” (4th Superseding Indictment, 05 cr 673, Dkt. # 89, at 3-4.) The majority, however, does not affirm on the ground that Sabir’s actions were an attempt to provide actual medical support to wounded jihadists in Saudi Arabia. Nor could it, in light of this Circuit’s established precedent, discussed below. Rather, the majority focuses elsewhere, concluding that “[w]hether or not Sabir’s May 20, 2005 actions were a substantial step in the provision of expert medical services to terrorists,” Sabir’s actions on this date “were a substantial step in the provision of Sabir himself as personnel.” Majority Op., ante at [151] (emphasis supplied).

The rule is clear enough “that we may affirm on any grounds for which there is a record sufficient to permit conclusions of law.” Chesley v. Union Carbide Corp., 927 F.2d 60, 68 (2d Cir.1991) (internal quotation marks omitted). There is no dispute that the evidence is sufficient to establish the element of intent, leaving only the import of Sabir’s conduct to be determined. The majority concludes that a reasonable juror could find, based on the evidence, that Sabir took a substantial step toward providing himself as personnel. Going further, the majority suggests that Sabir’s conduct would have sufficed to provide himself as personnel had circumstances been as he believed, a novel question that the litigants never expressly considered, much less briefed.2 I address these matters in turn.

II.

The issue before us is whether Sabir’s meeting with an undercover agent in the Bronx, “swearing an oath of allegiance to al Qaeda” and “providing ... contact numbers for al Qaeda members to reach him in Saudi Arabia” constitute a substantial step toward his providing personnel (ie., himself) to work under al Qaeda’s direction and control. Majority Op., ante at [150]. Although “substantial step” analysis is often “fraught with difficulty,” United States v. Ivic, 700 F.2d 51, 66 (2d Cir.1983), in this case, the question is straightforward and readily answered in the negative.

I find no case, in any court, that even remotely supports the majority’s conclusion that a defendant attempts a crime simply by agreeing to commit the crime and providing a phone number. Nor does the government, in its single-paragraph ipse dixit defense of the conviction, offer any authority to support its position. The majority opinion cites established precedents that recite the recognized law of attempt, but none of these cases, regardless of outcome, justifies the majority’s position. Quite the contrary.

*177First, the cases routinely hold that mere preparation is not an attempt. See, e.g., United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980) (“A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime.”). As the majority notes, a substantial step must be part of “ ‘a course of conduct planned to culminate in [the] commission of the crime.’ ” Ivic, 700 F.2d at 66 (quoting Model Penal Code § 5.01(l)(c)). It is the conduct that is dispositive. Here, however, there was little to none. There was just talk that was, for the most part, prompted by the undercover agent. There is no evidence of any activity whatsoever that might indicate that Sabir had indeed embarked upon a determined path to proximate criminality in providing material support.

Second, in the cases in which this Circuit has sustained a finding of attempt, “ ‘the accused’s conduct ha[d] progressed sufficiently to minimize the risk of an unfair conviction.’ ” Manley, 632 F.2d at 988 (“ ‘[A]n attempt is necessarily predictive ....’”) (quoting United States v. Busic, 549 F.2d 252, 257 n. 9 (2d Cir. 1977)). For example, in United States v. Stallworth, 543 F.2d 1038, 1041 (2d Cir. 1976), the case in which we adopted the substantial step formulation of the Model Penal Code, we found evidence of a substantial step toward robbery because the defendants cased the target bank, discussed their plan of attack, armed themselves, stole ski masks and surgical gloves, and actually moved toward the bank to commit the crime. We held that “[a]ll that stood between appellants and success was a group of F.B.I. agents and police officers” whose timely intervention “probably prevented not only a robbery but possible bloodshed.” Id. at 1041. Likewise, in Manley, 632 F.2d at 988, we held that the defendant took a substantial step toward purchasing drugs because he drove to an acquaintance’s home late at night with a large amount of cash that was roughly equivalent to the value of the cocaine found at the house. In affirming that conviction, we aptly observed that “it is hard to conceive of any additional preliminary steps which [the defendant] could have taken short of the actual acquisition of the narcotics.” Id. at 989. And in United States v. Crowley, 318 F.3d 401, 408 (2d Cir.2003), we found sufficient evidence of an attempt to commit a sexual act by force after the defendant pinned his victim to the bed, put his hand in her shorts and sought to penetrate her with his fingers. By comparison, the meager evidence of any action by Sabir to further the criminal objective falls far short of a substantial step.

The majority also relies on Ivic, 700 F.2d at 67, a case that explores the outer boundaries of what actions constitute a substantial step. In that case, having already acquired explosives and devised a plan of attack, one defendant authorized the bombing of a travel agency and the other reconnoitered the site. Judge Friendly found that the evidence of attempt was “sufficient, although barely so.” Id. (emphasis supplied). If casing the location and stockpiling explosives is “barely” an attempt, how can Sabir’s limited conduct possibly be?

The principal case the majority invokes, United States v. Delvecchio, 816 F.2d 859, 861-62 (2d Cir.1987), compels the conclusion that no attempt occurred here. The majority correctly cites this decision as “holding] that evidence of a verbal agreement alone, without more, is insufficient as a matter of law to support an attempt conviction,” id. at 862, but finds that “by promising to be on call in Saudi Arabia to treat wounded al Qaeda members[ ] and by providing private and work contact num*178bers,” Majority Op., ante at [145], Sabir engaged in a substantial step sufficient to sustain a conviction for attempting to provide himself as personnel. Closer attention to Delvecchio’s facts illuminates the flaw in the majority’s reasoning.

In Delvecchio, we found the evidence of an attempt to purchase drugs insufficient even though Delvecchio and his partner had sought out suppliers, actually an undercover agent and an informant, then agreed to buy five kilograms of heroin from them at 10:00 pm the following evening for $195,000 per kilogram on a specific street corner in Manhattan. At one of two dinner meetings, the Delvecchio defendants, like Sabir, gave their contact numbers to the agent and informant. Id. at 861. Without hesitation, however, we concluded that the defendants had not attempted to purchase the narcotics, because their “plan to possess heroin had only advanced to the stage of meeting with their purported suppliers to work out the terms of the deal.” Id. at 862 (“[EJvidence of a verbal agreement alone, without more, is insufficient as a matter of law to support an attempt conviction.”). The government failed to show that the defendants “performed any overt act to carry out the agreed upon” transaction; the defendants had not, for example, “set out for the meeting site” or “attempted to acquire the almost one million dollars necessary to complete the purchase.” Id. We upheld the defendants’ conspiracy convictions alone.

It cannot seriously be disputed that the Delvecchio defendants’ actions, like those of the defendants in every case mentioned above, were far closer to an attempt at the respective crime than were Sabir’s. The Delvecchio defendants worked out every aspect of an imminent drug deal. Sabir, by contrast, viewing the facts in the government’s favor, agreed to be “on call” as a doctor halfway around the world under unspecified conditions at some indefinite time in the future. Sabir never had the chance to demonstrate whether his actions would have been consistent with his conspiratorial pledge. Indeed, Sabir and the undercover did not even “work out the terms of the deal.” Id. at 862.

Before Sabir could have placed himself under al Qaeda’s direction or control, moreover, he needed to return to Riyadh. He “[a]ssum[ed] that” he could “get back,” which required locating or replacing his passport and enlisting the aid of the consulate. GX 906T at 14. In addition to these administrative hurdles, Sabir had to overcome restrictions on his mobility and find a place in which to treat wounded mujahideen. Sabir told the undercover that he was being forced to live on hospital grounds, id. at 66-70, agreed that he could not treat wounded jihadists at the hospital, id., doubted his ability to leave the confínes of his hospital “without people watching [his] every movement,” id. at 70-71, and volunteered that he had no means of transportation, id. at 16.3 The Delvecchio defendants, in stark contrast, completed all such preliminary arrangements, but even then the panel readily concluded that no attempt had occurred. 816 F.2d at 862.

The majority purports to distinguish Delvecchio in a number of ways. Initially, the majority notes that “[w]hereas an attempt to possess focuses on a defendant’s efforts to acquire, an attempt to provide *179focuses on his efforts to supply, a distinction that necessarily informs” the attempt analysis. Majority Op., ante at [147]. This distinction is not meaningful. To demonstrate, suppose that the Delvecchio defendants’ convictions were based upon an agreed-upon supply of drugs to an undercover agent, rather than an acquisition from the agent. In such a case, would a verbal agreement plus a contact number equal an attempt? We held otherwise in United States v. Rosa, 11 F.3d 315, 339-40 (2d Cir.1993). Because the Rosa defendant “did not produce any heroin for the proposed sale,” nor had he “made any effort to obtain heroin ... in order to sell it to” the agent, we once again held the evidence insufficient to sustain an attempt conviction. Id. at 340-41. Rosa illustrates that, whether acquiring or providing, a defendant who follows an agreement with inactivity while the criminal objective remains beyond reach cannot be guilty of an attempt. See Rosa, 11 F.3d at 340 (emphasizing the defendant’s statement that his own supplier “might be in jail”). In either case, the pivotal issue is proximity — in time, place or readiness — to commission of the charged offense.

To support its conclusion, the majority poses the hypothetical situation in which we are to assume that Sabir is not a doctor but rather an al Qaeda recruiter who recruits doctors like Sabir. The majority is correct that, under those circumstances, the recruiter could be found guilty of attempting to provide personnel. Such conduct, which could be accomplished locally, would be real, measurable and meaningful. See Stallworth, 543 F.2d at 1040 n. 5 (noting that “ ‘soliciting an innocent agent to engage in conduct constituting an element of the crime’ ” may be a substantial step sufficient to uphold an attempt conviction) (quoting Model Penal Code 5.01(2)(g)). Simply stated, the recruiter in the hypothetical has done something. He has provided a service to the organization. His culpability is not a matter of conjecture. Cf. United States v. Awan, 384 Fed.Appx. 9, 13 (2d Cir.2010) (affirming conviction for conspiracy to provide personnel where testimony and recorded conversations “provided sufficient evidence from which a rational jury could find that [the defendant] was recruiting for” a foreign terrorist organization). By attending a meeting and volunteering his services, the actual Sabir, unlike the hypothetical recruiter, has done nothing more than reiterate agreement.4

Finally, and most importantly, the majority proposes that Sabir went beyond attending a meeting and agreeing to serve: he “took a step essential to provide al Qaeda with personnel in the form of an on-call doctor” by “provid[ing] the means by which mujahideen in Riyadh could reach that doctor at any time.” Majority Op., ante at [150]. This observation might have some significance if Sabir’s “enlistment” came at or near some jihadist camp or battleground, and he was situated, equipped and ready to assist; but the location in question was almost 7,000 miles away, and no preparations to be “on call” had been made or even discussed,5 leaving *180the actual provision of material support entirely a matter of speculation and surmise. If, to borrow the majority’s phrase, “a step essential” to sustain an attempt conviction were provision of a contact number for resultant transactions, then Delvecchio must have been wrongly decided. Drawing all conceivable inferences in favor of the government, there is simply no way to square these facts with the cases cited and conclude that an attempt has been established.

III.

Just as troubling as the majority’s “substantial step” analysis is its suggestion that a person actually completes the crime of providing “material support in the form of personnel as soon as he pledges to work under the direction of the organization.”6 Majority Op., ante at [182], In so suggesting, the majority enters largely untested statutory waters.

The few courts to rule on sufficiency challenges relating to the term “personnel” — or even to construe the term — have required a level of engagement, activity or compliance far surpassing Sabir’s someday, someplace commitment here.7 Compare United States v. Abu-Jihaad, 600 F.Supp.2d 362, 401 (D.Conn.2009) (communicating sensitive defense information to terrorist organization on single occasion *181was insufficient evidence of providing self as “personnel,” without evidence that the organization requested such information pursuant to a prior “arrangement! ]” and that the defendant “did as requested”), aff'd on other grounds, 630 F.3d 102 (2d Cir.2010); United States v. Warsame, 537 F.Supp.2d 1005, 1018 (D.Minn.2008) (contacting overseas al Qaeda associates while in North America, without more, “would be inadmissible as evidence of guilt [absent] additional conduct that would constitute provision of ‘personnel’ ”) with United States v. Taleb-Jedi, 566 F.Supp.2d 157 (E.D.N.Y.2008) (teaching language classes, translating documents and working in organization’s political division at Iraqi base potentially equaled providing self as “personnel”); United States v. Lindh, 212 F.Supp.2d 541, 580 (E.D.Va.2002) (training with and fighting alongside terrorist groups in Afghanistan potentially equaled providing self as “personnel”); United States v. Goba, 220 F.Supp.2d 182, 193-94 (W.D.NY.2002) (attending al Qaeda training camp for five weeks potentially equaled providing selves as “personnel”); cf. United States v. Stewart, 590 F.3d 93, 115 (2d Cir.2009) (relaying repeated messages to and from imprisoned terrorist regarding ongoing conspiracy was “ ‘active participation’ ” that equaled providing prisoner as “personnel”); Awan, 384 FedAppx. at 17 (soliciting another “for training and carrying out attacks in India on behalf of’ terrorist organization equaled conspiring to provide recruit as “personnel”); United States v. Marzook, 383 F.Supp.2d 1056, 1065 (N.D.Ill.2005) (recruiting another “to join Hamas and make trips to the Middle East” to scout attack locations potentially equaled providing recruit as “personnel”).

These courts consistently distinguish between activity and passivity, in each case criminalizing the former and not the latter. The majority states that “it may frequently be the case that a defendant who intends to provide a terrorist organization with personnel also intends for the personnel to provide the organization with services.” Majority Op., ante at [150]. That, I submit, is an understatement. To suggest that Sabir became al Qaeda’s doctor in Riyadh after the May 2005 meeting in the Bronx, thus facilitating more dangerous missions, requires logical leaps that the record below simply will not bear.8 To serve the statute’s objectives without overreaching, some post-agreement activity must be shown to establish an attempt to provide oneself as personnel.

Further, by transforming offers to provide services into attempted provision of personnel, the majority’s holding may sanction multiple punishments for a single offense.9 An attempt requires a substan*182tial step toward criminality; a conspiracy requires agreement with another wrongdoer. On these facts, however, the majority substitutes evidence of agreement and intent for evidence of the substantive crime. See, e.g., United States v. Gore, 154 F.3d 34, 46 (2d Cir.1998) (disallowing multiple sentences for violations of a single statute where, given the “narrow set of facts” presented, “no longer does each offense require proof of a fact that the other does not”). As the majority concludes, at the May 2005 meeting, Sabir “formalize[d] his promise” to work for al Qaeda. Majority Op., ante at [150-51]. Thus, it is hard to see how the conspiracy and attempt convictions meaningfully differ. See Iannelli v. United States, 420 U.S. 770, 785-86 & n. 18, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (reaffirming that “the real problem” in such cases “is the avoidance of dual punishment”).

Conspiracy charges unaccompanied by a completed substantive crime are relatively rare, and can be troubling when the available evidence leaves one to speculate whether the criminal objective would have been realized. In this ease, such concern is compounded by the need to find the line between radical beliefs and radical action.10 The law of attempt has evolved to take the guesswork out of finding that line. At the one meeting Sabir attended, he indeed chanted the mantra of the terrorist, led by the government agent and inspired by his co-defendant. But we are left to wonder whether his apparent enthusiasm would have, or even could have, led to action on his part. That should not be, and no imaginable view of the evidence removes this uncertainty.

This Court observed in Crowley that “[t]he problem faced by the drafters [of the Model Penal Code] was that to punish as an attempt every act done to further a criminal purpose, no matter how remote from accomplishing harm, risks punishing individuals for their thoughts alone, before they have committed any act that is dangerous or harmful.” 318 F.3d at 408. I submit that the majority has done just that by abandoning the notion, fundamental to attempt jurisprudence, that we punish criminal deeds and not thoughts or intentions. The majority declares, however, that the crime at issue “is of a quite different sort.” Majority Op., ante at [147]. Whatever the “sort” of offense, Sabir was not charged with mere membership in al Qaeda or for being sympathetic to some radical Islamic cause. Signing on to the al Qaeda roster of loyalists (as reprehensible as that may be) is not, and could not be, the crime at issue, since “Section 2339B does not criminalize mere membership in a designated foreign terrorist organization. It instead prohibits providing ‘material support’ to such a group.” Humanitarian Law, 130 S.Ct. at 2718; see also id. at 2730 *183(“[T]he statute does not penalize mere association with a foreign terrorist organization.”); 18 U.S.C. § 2339B© (“Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.”).

The majority asserts that “a reasonable jury could have concluded that,” based on his May 20, 2005 actions, “Sabir crossed the line from simply professing radical beliefs or joining a radical organization to attempting [the] crime” of providing himself to work under al Qaeda’s control. Majority Op., ante at [151]. The only evidence tending to show such control is the oath. But the litigants, and presumably the majority, agree that the oath alone is not a basis for imprisonment.11 At best, the oath reflects an agreement and intention to follow directions, but “mere intention to commit a specified crime does not amount to an attempt.” Manley, 632 F.2d at 988 (internal quotation marks omitted). Despite the majority’s apparent preoccupation with Sabir’s state of mind, the independent evidence of attempt in this case remains a pair of phone numbers. Those evidentiary morsels cannot sustain the substantive conviction.

As recent history tragically illustrates, provision of material support of any form to a terrorist organization emboldens that organization and increases the likelihood of future terrorist attacks. That is why Congress enacted statutes criminalizing such activity. Simply stated, however, the majority has at once unwisely re-written the law of attempt, raised freedom-of-association concerns and possibly treaded on double jeopardy protection, “opening the door to mischievous abuse.” United States v. Johnpoll, 739 F.2d 702, 715 (2d Cir.1984). Regardless of Sabir’s inclination, as a matter of law, any step he took toward that end was insubstantial and any support he furnished unquestionably immaterial.

In the end, a man stands guilty, and severely punished, for an offense that he did not commit. Therefore, I respectfully dissent.

. Title 18 U.S.C. § 2339B(h) disallows prosecution "in connection with the term 'personnel' unless [a] person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control.” As we reaffirm in response to Sabir's challenge, this "limiting definition ... answers [any] vagueness concerns,” rendering the provision constitutional. Holder v. Humanitarian Law Project, - U.S. -, 130 S.Ct. 2705, 2721, 177 L.Ed.2d 355 (2010).

. During and after trial, the government advanced the view that the attempt count in this case regards actual medical support. See Gov’t Summation, 5/15/07 Trial Tr., 05 cr 673, at 2373-74 (“How did Rafiq Sabir try to provide material support? In this case, his expert advice and assistance in the form of his medical skills.’’); Gov’t Sentencing Mem., 05 cr 673, Dkt. # 174, at 3 ("Sabir took a substantial step toward providing expert advice and assistance — i.e., his medical skills — to al Qaeda.”). In defending the conviction on appeal, the government speaks of “material support” generally. Gov’t Br. at 58. At oral argument, however, the government confirmed that Sabir attempted to provide "medical services,” then offered to perform additional research to present its "best case” that Sabir might have been found guilty of attempting to provide personnel.

. Although Sabir told the undercover that he could “leave the job” if "living on the hospital property is big enough of a problem,” GX 906T at 69, the undercover mentioned Sabir’s “very helpful” hospital ID, to which Sabir responded: "I guess that it means that if they are forcing me to live in the hospital property, then I might just have to submit to that and to try to, uh, find another way.” Id. at 67-69.

. The majority’s conclusion that these actions comprise a substantial step, thus distinguishing this case from Delvecchio and Rosa, begs the analysis, since those opinions focus on the respective defendants' actions (or lack thereof) after their initial agreements with the undercover agents. Sabir did not, for instance, call multiple subsequent meetings, describe his criminal plan in the utmost detail, settle most but not "all of the specifics” and "continue[ ] to negotiate with the government agent[]until his arrest prevented him from doing so.” United States v. Jonsson, 15 F.3d 759, 762 (8th Cir.1994) (finding such actions sufficient to distinguish Delvecchio).

. The undercover agent initially requested Sabir’s phone number in case "there is anything *180you [i.e., Sabir] need over there.” GX 906T at 40 (emphasis supplied).

. In footnote [19] to the majority opinion, Judge Raggi expresses her own view that had the undercover agent instead been an al Qaeda operative, the evidence might well support a finding that Sabir actually provided himself as personnel, and not merely attempted to do so. Although the majority states that it does not reach that question, the suggestion that Sabir's actions might have completed the crime likewise appears in connection with the majority’s definition of "reserve personnel.” Majority Op., ante at [153-54]. The identity of the meeting's third participant, however, has no bearing on the attempt analysis. Had a bona fide high-level recruiter been at that meeting, the breadth of the provable conspiracy would have widened; but without a substantial step, as courts until now have construed the requirement, no attempt would have occurred.

. The statutory provision at issue, enacted in 2004, prohibits a person from providing (or attempting to provide) “himself” as personnel to a terrorist organization, and adds the requirement that personnel must work under the organization's "direction or control.” 18 U.S.C. § 2339B(h). "Statutory definitions control the meaning of statutory words, of course, in the usual case.” Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201, 69 S.Ct. 503, 93 L.Ed. 611 (1949) (authorizing deviations from the general rule in the "unusual case” or where a term is defined with less than “ 'watch-like precision' "). Personnel is ordinarily defined as the "body of people employed in an organization, or engaged in a service or undertaking, esp. of a military nature” (Oxford English Dictionary Online, http://www.oed.eom/view/Entry/l 41512? redirectedFrom=personnel#), or the "body of persons employed by or active in an organization, business, or service” (American Heritage Dictionary of the English Language 1311 (4th ed. 2000)). I offer these definitions not, as the majority suggests, to override the statute, but to inform the question of what in fact suffices to provide oneself as personnel, a “blank to be filled.” Burgess v. United States, 553 U.S. 124, 130-32, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) (evaluating a statutorily defined term in "context” and in light of how the term "is commonly defined”). The language in § 2339B(h), moreover, is not a traditional definition, which appear in § 2339B(g) (defining "classified information,” "financial institution,” "training,” "expert advice and assistance” and other terms). Rather, § 2339B(h) bars prosecution unless certain requirements are met; nothing suggests that these preconditions are conclusive of liability. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (holding that where a statutory "definition” contains requirements for liability rather than simply defining the term, “[t]he implication is that while [such] acts are necessary, they may not be sufficient”).

. The majority cites to Congress’s finding, made in connection with § 2339B's adoption, that "[fjoreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Humanitarian Law, 130 S.Ct. at 2724 (quoting AEDPA § 301(a)(7), 110 Stat. 1214, 1247 (1996)). This finding is “best read to reflect a determination that any form of material support” to a terrorist organization, including "ostensibly peaceful aid,” should be barred. Id. at 2724-25 (rejecting the argument that contributions which advance "only the legitimate activities of the designated terrorist organizations” are permissible). As such, I join in the unanimous holding that § 2339B, by its terms, criminalizes the practice of medicine (or the doctor himself) that Sabir agreed to provide to al Qaeda. The record below, however, does not support the conclusion that Sabir is guilty of attempting or committing the substantive offense.

. Although Sabir did not raise a double jeopardy challenge, nor could he have raised one, to an apparent conclusion of law announced for the first time on appeal, multiple sentences for the same offense are cognizable as plain error. See United States v. Coiro, 922 F.2d 1008, 1013-15 (2d Cir.1991). Sabir’s attorney did unsuccessfully argue below for *182concurrent sentences, moreover, since the conspiracy and substantive charges "are actually encompassed in the same conduct.” (11/28/07 Sentencing Tr., 05 cr 673, at 13-14.)

. In the context of 18 U.S.C. § 2339A, this Court has noted that "[b]y applying ... the prohibition against providing ‘personnel’ ... to a circumstance in which the defendants provided themselves, the government created a situation in which the defendants could be punished for, in effect, providing themselves to speak out in support of the program or principles of a foreign terrorist organization, an activity protected by the First Amendment.” Stewart, 590 F.3d at 118 (contrasting this situation with that of providing another as personnel, an activity that "does not carry the same risk with its corresponding constitutional implications”). While giving full import to § 2339B(h)’s limiting definition, to which the Stewart panel cited, I submit that punishing do-nothing "personnel” for violating the statute’s substantive provisions "in effect” punishes such actors for aligning with a terrorist organization.

. In the government’s own words: ‘‘[Tjhe bayat pledge, the pledge itself, by Rafiq Sabir was not in and of itself a crime.... The bayat itself is not the crime, but it is compelling powerful evidence of those crimes. It shows exactly what Rafiq Sabir was thinking. It shows his sincere commitment to aid al Qaeda.” 5/15/07 Trial Tr„ 05 cr 673, at 2337.