United States v. Sohiel Kabir

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 2, 2020
• Docket: 15-50078
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50078

Plaintiff-Appellee, D.C. No. 5:12-cr-00092-VAP-1 v.

SOHIEL OMAR KABIR, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief District Judge, Presiding

Argued and Submitted December 13, 2019 Pasadena, California

Before: KELLY,** PAEZ, and BADE, Circuit Judges. Dissent by Judge BADE

Sohiel Kabir (“Kabir”) appeals his conviction for several terrorism-related

offenses stemming from a failed plot to join militants engaged with American

forces in Afghanistan. Kabir raises a number of challenges to various aspects of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. his trial. We have jurisdiction under 18 U.S.C. § 1291. We affirm in part, reverse

in part, and remand for resentencing.1

1. Kabir first challenges the sufficiency of the evidence underlying his

convictions on Count 2 (conspiracy to provide material support to Al-Qa’ida, a

foreign terrorist organization, 18 U.S.C. § 2339B), Count 4 (conspiracy to receive

military-type training from Al-Qa’ida, 18 U.S.C. §§ 371, 2339D), and Count 5

(conspiracy to kill federal officers, 18 U.S.C. §§ 1117, 1114). We employ “a two-

step inquiry for considering a challenge to a conviction based on sufficiency of the

evidence.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

First, the evidence must be viewed “in the light most favorable to the prosecution.”

Id. Second, we must “determine whether this evidence, so viewed, is adequate to

allow ‘any rational trier of fact to find the essential elements of the crime beyond a

reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1977)

(emphasis in original)).

A. Counts 2 and 4

Taking the evidence in the light most favorable to the government, it does

not satisfy the second part of the inquiry with respect to Counts 2 and 4, the Al-

1 In a sealed memorandum filed concurrently with this memorandum, we affirm the district court’s handling of classified information under the Classified Information Procedures Act, 18 U.S.C. App. 3. We also affirm the court’s rulings on related objections at trial.

2 Qa’ida-specific charges. For these counts, the government bore the burden of

proving beyond a reasonable doubt that Kabir conspired to provide material

support to and receive military-type training from a State-Department-designated

foreign terrorist organization. 18 U.S.C. §§ 371, 2339B(a)(1), 2339D(a).

Surveillance tapes established that Kabir had a series of conversations with

his co-conspirators concerning which militant group they would ultimately join

when they reached Afghanistan. While co-conspirator Deleon preferred the

Taliban, co-conspirator Santana preferred Al-Qa’ida. Of these two groups, only

Al-Qa’ida is a designated foreign terrorist organization.

Kabir was open to joining either organization. In his last communication

with the stateside defendants, Kabir asked Santana if they had decided which group

to join, and mentioned that he had met someone with “connects with AQ.”

Santana replied that they still needed to “figure this out.” Kabir declined to assert

a preference, instead telling the others to “talk amongst yourselves and see what’s

up and then let me know.”

Witness testimony supports Kabir’s argument that the group never agreed to

join Al-Qa’ida. One cooperating defendant, Gojali, testified only that the group

had plans to join the Taliban. When government counsel asked if they planned “to

join the Taliban to ultimately progress . . . from students to the professors[,]”

Gojali responded that he was “not sure[.]” Government counsel’s next question

3 was less cryptic, asking whether the plan was “to join another group after the

Taliban[.]” Gojali was again unsure. The FBI informant likewise testified that he

only knew of a plan to join the Afghan Taliban. He never heard “any information

about a concrete plan or concrete connections other than to the Taliban in

Afghanistan[.]”

Although one could infer that Kabir was willing to join Al-Qa’ida, mere

willingness is insufficient to support a conspiracy conviction. United States v.

Melchor-Lopez is instructive in this regard. 627 F.2d 886 (9th Cir. 1980). In

Melchor-Lopez, the defendants engaged in a series of negotiations and

deliberations to potentially import narcotics. Id. at 891. Despite the defendants’

extensive bargaining over the terms of the agreement and their obvious willingness

to commit the drug offenses, we reversed their conspiracy convictions for

insufficient evidence because there was no proof of a “meeting of the minds”

between the conspirators. Id. at 892 (internal quotations omitted).

Here, like in Melchor-Lopez, the conspirators did not agree on an illegal

transaction. That is, they did not agree to join Al-Qa’ida. Instead, the conspirators

openly weighed the pros and cons of joining either the Taliban or Al-Qa’ida. The

government’s argument—that Kabir entered an “unqualified agreement” to start

with the Taliban and “move on” to Al-Qa’ida—is not supported by the record

evidence. This is evident in the contents of the October 20 conversation, in which

4 Kabir told Santana and the others to pick “one or the other” of the Taliban or Al-

Qa’ida. Although there are other references to Al-Qa’ida throughout the record,

when all the evidence is considered, no reasonable juror could find beyond a

reasonable doubt that Kabir and his co-conspirators agreed to join or obtain

training from Al-Qa’ida.

B. Count 5

Although the government presented insufficient proof of the Al-Qa’ida-

specific conspiracies, the evidence underlying Kabir’s conspiracy-to-kill

conviction is stronger. Gojali’s testimony showed that he and the other

conspirators planned to travel to Afghanistan to wage war against American

soldiers. Likewise, in a recorded call with Deleon, Kabir made cryptic references

to his plans to go on a “one way trip” involving the “third letter and the fourth

number” (presumably a reference to C-4 explosives). The jury could have

reasonably interpreted these comments as reflecting Kabir’s intent to commit a

suicide bombing. Viewing the evidence in the light most favorable to the

government, there was ample evidence to support the conspiracy-to-kill conviction

on Count 5.

2. Kabir next contests the district court’s exclusion of statements made by

military interrogators who interviewed him in the days following his arrest. Kabir

argues that the interrogators’ reports (or at least portions of them) were not hearsay

5 under Federal Rule of Evidence 801(d)(2) and were relevant to determining his

lack of criminal intent.

We need not determine whether the district court erred in excluding the

reports because Kabir has not shown that he was prejudiced. While certain

portions of the interrogators’ reports tended to bolster his defense theory—that he

had no actual ties to terrorist groups—the reports as a whole tended to inculpate

him. Indeed, the reports document Kabir’s “interest[] in conducting a suicide

operation” and indicate that he “request[ed] his old Air Force uniforms” to

infiltrate an American military base. Any error was thus harmless beyond a

reasonable doubt. See United States v. Larson, 495 F.3d 1094, 1108 (9th Cir.

2007) (en banc).

3. Kabir additionally argues that the district court should have declared a

mistrial when several jurors related to the court their concerns with the actions of a

courtroom observer who was a volunteer on his defense team. The jurors reported

fearing for their safety because the volunteer appeared to be closely scrutinizing

them and taking notes.

A defendant’s “Sixth Amendment rights are violated even if only one juror

was unduly biased or improperly influenced.” United States v. Sarkisian, 197 F.3d

966, 981 (9th Cir. 1999). Any “private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the matter pending before the

6 jury is, for obvious reasons, deemed presumptively prejudicial.” Remmer v. United

States, 347 U.S. 227, 229 (1954). To dispel the presumption of prejudice, the

government must show that “there is no reasonable possibility that [any juror] was

. . . affected in his freedom of action as a juror[.]” United States v. Dutkel, 192

F.3d 893, 899 (9th Cir. 1999) (internal quotations omitted, ellipses in original).

The government successfully rebutted the presumption in this case. Kabir’s

argument to the contrary is not persuasive. The district court properly responded

to the jurors’ fears by individually questioning them and assuaging them of their

safety concerns. See Sarkisian, 197 F.3d at 982 (holding that the district court

“adequately dispelled any prejudice by telling the jurors in open court that the

[perceived threat] was a prank, and by individually questioning the jurors to make

sure that they could proceed impartially”). The court did not abuse its discretion in

crediting the jurors’ claims that they could be fair in their assessment of the case.

See United States v. Stinson, 647 F.3d 1196, 1216 (9th Cir. 2011).

4. Kabir next contends that the district court abused its discretion and

violated his constitutional right to present a defense when it excluded the testimony

of his expert witness, Dr. Victoroff. But, as with the other alleged evidentiary

errors, Kabir’s argument fails because any error in excluding Dr. Victoroff’s

testimony was harmless beyond a reasonable doubt. Larson, 495 F.3d at 1108.

5. Finally, Kabir argues that the district court erred in admitting several

7 statements by his co-conspirators. Kabir contends that these statements were

inadmissible hearsay because they were not made “in furtherance” of the

conspiracy, as required under Federal Rule of Evidence 801(d)(2)(E).

“We review a decision to admit co-conspirator statements for abuse of

discretion, and the factual determination that statements were made in furtherance

of a conspiracy for clear error.” United States v. Bowman, 215 F.3d 951, 960 (9th

Cir. 2000) (citing United States v. Gil, 58 F.3d 1414, 1419 (9th Cir. 1995)).

Applying this standard, we discern no error in the district court’s admission of the

co-conspirators’ statements. Although some of the statements seem only tenuously

related to the conspiracy, the district court is afforded wide latitude in determining

whether a statement was made in furtherance of the charged conspiracy. United

States v. Nazemian, 948 F.2d 522, 529 (9th Cir. 1991).

Accordingly, we reverse Kabir’s convictions as to Counts 2 and 4 with

instructions to enter a judgment of acquittal on those counts, but affirm his

remaining convictions in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED for

resentencing.

8 United States of America v. Sohiel Omar Kabir, No. 15-50078 FILED OCT 2 2020 BADE, Circuit Judge, dissenting to Section 1(A): MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS The majority concludes that the government failed to prove beyond a

reasonable doubt that Kabir conspired to provide material support to, and receive

military-type training from, Al-Qa’ida, a State Department-designated foreign

terrorist organization (Counts Two and Four). See 18 U.S.C. §§ 371, 2339B(a)(1),

2339D(a). But the evidence is more than sufficient to support Kabir’s convictions

on both these Counts.

Kabir and his co-conspirators explicitly discussed whom they would be

“fighting with” in Afghanistan in a series of conversations captured on surveillance

tapes. In one such conversation, when asked “which group” the men “should get

involved with,” co-conspirator Santana responded with “AQ” and confirmed that

Al-Qa’ida was his first choice. During another conversation between Kabir,

Santana, and two other co-conspirators (including Deleon), in which the group

discussed joining Kabir in Afghanistan to engage in jihad, Kabir told the group,

“Everything here is good to go if you guys come out here.” In that conversation,

Kabir agreed with Santana’s suggestion that they could advance from the

“students” (the Taliban) to the “professors” (Al-Qa’ida), showing that Kabir agreed

to ultimately join and obtain training from Al-Qa’ida. After this conversation,

Santana and Deleon explained to another co-conspirator that the plan was to

1 initially train with the Taliban but then go to Al-Qa’ida to “train with them.”

Consistent with this plan, Kabir later stated that he had met someone with

“connects with AQ.”

Moreover, at trial, co-conspirator Gojali testified that he and the other co-

conspirators planned to meet up with Kabir in Afghanistan to “fight” the

“American soldiers, British, Australian, UN,” and “go to war.” Another co-

conspirator testified that “the plan” was to “go and join the Taliban and fight until

we get[] the chance to be with Al-Qa’ida.” Gojali’s trial testimony also established

that he, Santana, and Deleon prepared themselves for military-type training and

combat in Afghanistan by practicing with AK-47s at shooting ranges, going to

paintball ranges where they would pretend that people in camouflage were “the

American soldiers and the British soldiers,” and by hiking and training in the gym

in preparation for Afghanistan’s terrain and for carrying weapons and dead bodies.

Gojali even confirmed that he intended to use the AK-47 “to kill American

soldiers.”

Also at trial, the government’s expert explained that Osama Bin Laden’s

first fatwa—a religious political edict—called for violent jihad against U.S.

military personnel, and how Al-Qa’ida used online propaganda to encourage

people to travel on their own to join the jihad. This expert testimony was

presented to the jury to consider along with other evidence establishing Kabir’s

2 longstanding interest in violent jihad, including: years of publicly praising

terrorism against the United States; attempting to contact Anwar Al-Awlaki (a

former Yemeni-American cleric who encouraged violent jihad through English

publications directed at Muslims in the United States and other western countries);

converting Deleon and Santana to radical Islam and shepherding them into

extremist beliefs; and moving to Afghanistan after years of expressing interest in

doing so. Kabir’s commitment to Al-Qa’ida’s mission of violent jihad was further

demonstrated by his statements to Deleon confirming that he was “going on a one

way trip” involving “the third letter and the 4th number”—a reference to C4.

Kabir’s statements and actions go far beyond demonstrating mere “willingness” to

join Al-Qa’ida. See United States v. Melchor-Lopez, 627 F.2d 886, 888–89 (9th

Cir. 1980).

Viewing the evidence “in the light most favorable to the prosecution,”

United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc), the jury

could have reasonably found beyond a reasonable doubt that Kabir conspired to

provide material support to, and receive military-type training from, Al-Qa’ida.

See United States v. Perlaza, 439 F.3d 1149, 1177 (9th Cir. 2006) (“It is well-

settled in this circuit that, once the existence of a conspiracy is established, a

defendant may be convicted of knowing participation therein if the evidence

establishes, beyond a reasonable doubt, ‘even a slight connection between’ the

3 defendants and the conspiracy.” (quoting United States v. Wright, 215 F.3d 1020,

1028 (9th Cir. 2000))); United States v. Iriarte-Ortega, 113 F.3d 1022, 1024

(9th Cir. 1997) (“[M]ost conspiracy convictions are based on circumstantial

evidence, and [courts] allow juries to draw inferences as to the existence of an

agreement from the defendants’ conduct.”). Because the majority ignores the

ample evidence in the record that supports the jury’s verdict on Counts Two and

Four, and does not view the evidence “in the light most favorable to the

prosecution,” Nevils, 598 F.3d at 1164, I respectfully dissent in part.