10-3916-cr United States v. Siddiqui
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 5th day of November, two thousand twelve. 5 6 PRESENT: RICHARD C. WESLEY, 7 SUSAN L. CARNEY, 8 Circuit Judges, 9 ROSLYNN R. MAUSKOPF, 10 District Judge.* 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 -v.- 10-3916-cr 18 19 AAFIA SIDDIQUI, 20 21 Defendant-Appellant.** 22 23 24 FOR APPELLANT: DAWN M. CARDI (Chad L. Edgar, on the 25 brief), Dawn M. Cardi & Associates, New 26 York, NY. 27 28
* The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation. ** The Clerk of the Court is respectfully directed to amend the caption to conform with the above. 1 FOR APPELLEE: JENNA M. DABBS, Assistant United States 2 Attorney (Christopher L. Lavigne, Jesse 3 M. Furman, Assistant United States 4 Attorneys, on the brief), for Preet 5 Bharara, United States Attorney for the 6 Southern District of New York, New York, 7 NY. 8 9 Appeal from the United States District Court for the 10 Southern District of New York (Berman, J.). 11 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the United States District
14 Court for the Southern District of New York be AFFIRMED.
15 Appellant Aafia Siddiqui appeals from a judgment of the
16 United States District Court for the Southern District of
17 New York (Berman, J.), convicting her after a jury trial of
18 numerous offenses and sentencing her principally to 86
19 years’ imprisonment. In an accompanying published opinion,
20 we address five issues that Siddiqui raises on appeal. We
21 address the remaining issues herein. We assume the parties’
22 familiarity with the underlying facts, the procedural
23 history, and the issues presented for review.
24 Siddiqui contends that reversal is warranted because
25 the district court admitted testimonial hearsay in violation
26 of Crawford v. Washington, 541 U.S. 36 (2004), and that the
27 error was not harmless beyond a reasonable doubt. Her
28 argument follows several steps. She claims that the
2 1 testimony of two United States Army officers that they were
2 informed by certain Afghan officials that Siddiqui was in
3 possession of incendiary documents at the time of her arrest
4 violated Crawford. Siddiqui argues that without this
5 testimony, the government could not establish that Siddiqui
6 possessed the documents when she was arrested. And
7 according to Siddiqui, because the “real relevance” of the
8 documents is that Siddiqui possessed them in close proximity
9 (in time) to the shooting incident, the documents would have
10 been excluded under Federal Rule of Evidence 403 but for the
11 officers’ testimony.
12 Siddiqui’s Crawford challenge stumbles at its first
13 step. The Confrontation Clause bars only testimonial
14 hearsay used to establish the truth of the matter asserted.
15 See United States v. Paulino, 445 F.3d 211, 216-17 (2d Cir.
16 2006). A testimonial statement is “a solemn declaration or
17 affirmation made for the purpose of establishing or proving
18 some fact.” Michigan v. Bryant, 131 S.Ct. 1143, 1153 (2011)
19 (internal quotation marks and brackets omitted). Typical
20 testimonial statements include affidavits, depositions, and
21 grand jury testimony. See Crawford, 541 U.S. at 51-52. The
22 outer bounds of what constitutes a testimonial statement
23 remain unclear. But “the critical factor in identifying a
3 1 Confrontation Clause concern is the declarant’s awareness or
2 expectation that his or her statements may later be used at
3 trial.” United States v. Farhane, 634 F.3d 127, 163 (2d
4 Cir. 2011) (internal quotation marks omitted).
5 Here, we have little doubt that the Afghan officials
6 had no expectation or awareness that their statements
7 regarding what documents were found on Siddiqui when she was
8 arrested would later be used at a trial. When these
9 statements were made, Siddiqui had not yet fired upon the
10 American interview team. The United States’ interest in
11 Siddiqui was primarily military in nature. This is
12 underscored by the fact that the statements were conveyed to
13 American military personnel, not domestic law enforcement
14 officers. As such, there was no Crawford violation. See
15 Bryant, 131 S.Ct. at 1154.
16 We note also that the government did not offer these
17 statements to prove the truth of the matter asserted, but
18 rather to show their effect on the listeners–in other words,
19 to explain the United States' interest in interviewing
20 Siddiqui. The district court gave a limiting instruction to
21 this effect. Even if, as Siddiqui appears to contend,
22 allowing the testimony was impermissible under hearsay
23 rules, such an error would be harmless because (1) there was
4 1 other evidence that strongly suggested the documents were in
2 Siddiqui's possession at the time of her arrest; and (2) as
3 explained in the accompanying published opinion, admission
4 of the documents was harmless.
5 Next, in an argument that she herself characterizes as
6 advancing a “novel theor[y],” Siddiqui Reply Br. 3, Siddiqui
7 contends that the district court committed reversible error
8 in failing to give an instruction to the jury requiring them
9 to be unanimous as to the specific identity of Siddiqui’s
10 intended victims for the attempted murder counts. We
11 disagree.
12 The statutes at issue here prohibit the attempted
13 killing of “a national of the United States,” 18 U.S.C. §
14 2332, and “any officer or employee of the United States
15 while such officer or employee is engaged in or on the
16 account of the performance of official duties,” 18 U.S.C. §
17 1114. Because the statutes do not specify the elements of
18 “attempt to kill,” the elements are those required for
19 attempted murder at common law, which include an intent to
20 kill. See Braxton v. United States, 500 U.S. 344, 351 n.*
21 (1991).
22 Federal juries must be unanimous as to each element of
23 an offense. Richardson v. United States, 526 U.S. 813, 817
5 1 (1999). However, “a federal jury need not always decide
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10-3916-cr United States v. Siddiqui
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 5th day of November, two thousand twelve. 5 6 PRESENT: RICHARD C. WESLEY, 7 SUSAN L. CARNEY, 8 Circuit Judges, 9 ROSLYNN R. MAUSKOPF, 10 District Judge.* 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 -v.- 10-3916-cr 18 19 AAFIA SIDDIQUI, 20 21 Defendant-Appellant.** 22 23 24 FOR APPELLANT: DAWN M. CARDI (Chad L. Edgar, on the 25 brief), Dawn M. Cardi & Associates, New 26 York, NY. 27 28
* The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation. ** The Clerk of the Court is respectfully directed to amend the caption to conform with the above. 1 FOR APPELLEE: JENNA M. DABBS, Assistant United States 2 Attorney (Christopher L. Lavigne, Jesse 3 M. Furman, Assistant United States 4 Attorneys, on the brief), for Preet 5 Bharara, United States Attorney for the 6 Southern District of New York, New York, 7 NY. 8 9 Appeal from the United States District Court for the 10 Southern District of New York (Berman, J.). 11 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the United States District
14 Court for the Southern District of New York be AFFIRMED.
15 Appellant Aafia Siddiqui appeals from a judgment of the
16 United States District Court for the Southern District of
17 New York (Berman, J.), convicting her after a jury trial of
18 numerous offenses and sentencing her principally to 86
19 years’ imprisonment. In an accompanying published opinion,
20 we address five issues that Siddiqui raises on appeal. We
21 address the remaining issues herein. We assume the parties’
22 familiarity with the underlying facts, the procedural
23 history, and the issues presented for review.
24 Siddiqui contends that reversal is warranted because
25 the district court admitted testimonial hearsay in violation
26 of Crawford v. Washington, 541 U.S. 36 (2004), and that the
27 error was not harmless beyond a reasonable doubt. Her
28 argument follows several steps. She claims that the
2 1 testimony of two United States Army officers that they were
2 informed by certain Afghan officials that Siddiqui was in
3 possession of incendiary documents at the time of her arrest
4 violated Crawford. Siddiqui argues that without this
5 testimony, the government could not establish that Siddiqui
6 possessed the documents when she was arrested. And
7 according to Siddiqui, because the “real relevance” of the
8 documents is that Siddiqui possessed them in close proximity
9 (in time) to the shooting incident, the documents would have
10 been excluded under Federal Rule of Evidence 403 but for the
11 officers’ testimony.
12 Siddiqui’s Crawford challenge stumbles at its first
13 step. The Confrontation Clause bars only testimonial
14 hearsay used to establish the truth of the matter asserted.
15 See United States v. Paulino, 445 F.3d 211, 216-17 (2d Cir.
16 2006). A testimonial statement is “a solemn declaration or
17 affirmation made for the purpose of establishing or proving
18 some fact.” Michigan v. Bryant, 131 S.Ct. 1143, 1153 (2011)
19 (internal quotation marks and brackets omitted). Typical
20 testimonial statements include affidavits, depositions, and
21 grand jury testimony. See Crawford, 541 U.S. at 51-52. The
22 outer bounds of what constitutes a testimonial statement
23 remain unclear. But “the critical factor in identifying a
3 1 Confrontation Clause concern is the declarant’s awareness or
2 expectation that his or her statements may later be used at
3 trial.” United States v. Farhane, 634 F.3d 127, 163 (2d
4 Cir. 2011) (internal quotation marks omitted).
5 Here, we have little doubt that the Afghan officials
6 had no expectation or awareness that their statements
7 regarding what documents were found on Siddiqui when she was
8 arrested would later be used at a trial. When these
9 statements were made, Siddiqui had not yet fired upon the
10 American interview team. The United States’ interest in
11 Siddiqui was primarily military in nature. This is
12 underscored by the fact that the statements were conveyed to
13 American military personnel, not domestic law enforcement
14 officers. As such, there was no Crawford violation. See
15 Bryant, 131 S.Ct. at 1154.
16 We note also that the government did not offer these
17 statements to prove the truth of the matter asserted, but
18 rather to show their effect on the listeners–in other words,
19 to explain the United States' interest in interviewing
20 Siddiqui. The district court gave a limiting instruction to
21 this effect. Even if, as Siddiqui appears to contend,
22 allowing the testimony was impermissible under hearsay
23 rules, such an error would be harmless because (1) there was
4 1 other evidence that strongly suggested the documents were in
2 Siddiqui's possession at the time of her arrest; and (2) as
3 explained in the accompanying published opinion, admission
4 of the documents was harmless.
5 Next, in an argument that she herself characterizes as
6 advancing a “novel theor[y],” Siddiqui Reply Br. 3, Siddiqui
7 contends that the district court committed reversible error
8 in failing to give an instruction to the jury requiring them
9 to be unanimous as to the specific identity of Siddiqui’s
10 intended victims for the attempted murder counts. We
11 disagree.
12 The statutes at issue here prohibit the attempted
13 killing of “a national of the United States,” 18 U.S.C. §
14 2332, and “any officer or employee of the United States
15 while such officer or employee is engaged in or on the
16 account of the performance of official duties,” 18 U.S.C. §
17 1114. Because the statutes do not specify the elements of
18 “attempt to kill,” the elements are those required for
19 attempted murder at common law, which include an intent to
20 kill. See Braxton v. United States, 500 U.S. 344, 351 n.*
21 (1991).
22 Federal juries must be unanimous as to each element of
23 an offense. Richardson v. United States, 526 U.S. 813, 817
5 1 (1999). However, “a federal jury need not always decide
2 unanimously which of several possible sets of underlying
3 brute facts make up a particular element.” Id. “[F]or
4 example, [where] an element of robbery is force or the
5 threat of force, some jurors might conclude that the
6 defendant used a knife to create the threat; others might
7 conclude he used a gun. But that disagreement–a
8 disagreement about means–would not matter as long as all 12
9 jurors unanimously concluded that the Government had proved
10 the necessary related element, namely, that the defendant
11 had threatened force.” Id. Courts have not developed a
12 bright line test for distinguishing between an element of a
13 crime and a “brute fact.” Instead, they look to the
14 statutory language, tradition, and fairness concerns, such
15 as the likelihood that treating a fact as a means rather
16 than an element would allow “wide disagreement among the
17 jurors about just what the defendant did, or did not, do”
18 and the risk that the jury may convict on bad reputation
19 alone. Id. at 819.
20 Here, the relevant statutory language—prohibiting the
21 attempted killing of “a national” and “any officer or
22 employee—suggests that Congress did not intend that the
23 government had to prove that the defendant had a particular
6 1 individual in mind as an element of the crime. Cf. United
2 States v. Talbert, 501 F.3d 449, 451 (5th Cir. 2007); United
3 States v. Verrecchia, 196 F.3d 294, 299 (1st Cir. 1999).
4 Viewing the identity of the intended victim as a “brute
5 fact” rather than as an element does not implicate fairness
6 concerns. It does not allow for wide juror disagreement as
7 to the defendant’s acts and does not create or aggravate the
8 risk that the jury would convict on bad reputation alone.
9 See Richardson, 526 U.S. at 819.
10 Indeed, a contrary interpretation would lead to absurd
11 results. For instance, under Siddiqui’s interpretation of
12 the statute, a defendant who fired one shot at a group of
13 United States employees or nationals with the intent to
14 indiscriminately kill one of them, but not an intent to kill
15 a particular individual, could not be convicted under the
16 statutes. For these reasons, we reject Siddiqui’s argument
17 that the district court was required to instruct the jury
18 that they had to be unanimous as to which United States
19 employee or national Siddiqui intended to kill.
20 The final three arguments that Siddiqui advances
21 concern sentencing. She contends that the district court
22 erred by refusing to “horizontally depart” in her criminal
23 history category and thereby to mitigate the effects of the
7 1 terrorism enhancement on her sentence. We will not review a
2 district court’s refusal to alter a criminal history
3 category unless the court “misapprehended the scope of its
4 authority to depart or the sentence was otherwise illegal.”
5 United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005);
6 see United States v. Stinson, 465 F.3d 113, 114 (2d Cir.
7 2006). Because there is nothing in the record to suggest
8 that the district court did not appreciate or understand its
9 authority to depart or that the sentence was otherwise
10 illegal, we reject Siddiqui’s argument.
11 Next, in a somewhat unfocused argument, Siddiqui
12 contends that (1) “the district court erred procedurally by
13 not providing notice to defense counsel that recidivism was
14 going to be a predominant concern” at sentencing; and (2)
15 the district court imposed a “substantively unreasonable”
16 sentence by finding that without treatment Siddiqui was
17 likely to be a recidivist, and thereby drew conclusions that
18 were clearly the province of mental health professionals.
19 Siddiqui Reply Br. 49. Siddiqui’s claim of procedural error
20 predicated on lack of notice is without merit. Indeed, the
21 very Supreme Court case on which Siddiqui relies notes that
22 “[g]arden variety considerations of culpability, criminal
23 history, likelihood of re-offense, seriousness of the crime,
8 1 nature of the conduct, and so forth should not generally
2 come as a surprise to trial lawyers who have prepared for
3 sentencing.” Irizarry v. United States, 553 U.S. 708, 716
4 (2008) (internal quotation marks omitted) (emphasis added).
5 In addition, and more importantly, defense counsel, in their
6 sentencing submission to the district court, explicitly
7 addressed the issue, writing: "We understand that the Court,
8 in light of our continued emphasis upon Dr. Siddiqui's
9 serious mental illness and the role it played in her offense
10 conduct, has to speculate as to Dr. Siddiqui's future
11 dangerousness when addressing the issue as to what sentence
12 will protect the public from her." JA 3095.
13 Nor did the district court improperly invade the
14 province of mental health professionals when it commented on
15 the defendant’s likelihood of recidivism. Contrary to
16 Siddiqui’s contentions, the district court’s comments here
17 are a far cry from the comments to which this Court took
18 exception in United States v. Cossey, 632 F.3d 82, 88 (2d
19 Cir. 2011), and United States v. Dorvee, 616 F.3d 174, 183-
20 84 (2d Cir. 2010). Moreover, the district court relied on
21 other factors–such as the seriousness of the offense and the
22 need for general deterrence–in fashioning its sentence.
23 Under the circumstances of this case, a sentence of 86
24 years’ imprisonment is substantively reasonable.
9 1 Finally, we need not address Siddiqui’s claim that the
2 district court erred in finding that her conduct was
3 premeditated. Even without a finding of premeditation,
4 Siddiqui’s Guidelines range would have been life
5 imprisonment. As such, the district court characterized the
6 dispute regarding premeditation as academic before
7 addressing the issue. Any error in finding Siddiqui’s
8 conduct to be premeditated would be harmless. See United
9 States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009).
10 After a thorough review of the record, we find
11 Siddiqui’s remaining arguments to be without merit.
12 For the foregoing reasons, and for the reasons stated
13 in the accompanying published opinion, the judgment of the
14 district court is hereby AFFIRMED.
15 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19