United States v. Abdelhaleem Ashqar

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3879

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

A BDELHALEEM H ASAN A BDELRAZIQ A SHQAR,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 00978-3—Amy J. St. Eve, Judge.

A RGUED A PRIL 7, 2009—D ECIDED O CTOBER 2, 2009

Before P OSNER, R IPPLE and W OOD , Circuit Judges.

W OOD , Circuit Judge. Abdelhaleem Hasan Abdelraziq

Ashqar, a Palestinian, was convicted of obstruction of

justice and criminal contempt after he refused to answer

certain questions before a grand jury. Because the grand

jury was investigating alleged terrorist acts of Hamas,

the district court applied the terrorist enhancement in

U.S.S.G. § 3A1.4. As a result, Ashqar’s advisory Guideline

sentence range on one count jumped from 24-30 months

2 No. 07-3879

to 210-262 months. The district court chose a point roughly

in the middle of those extremes, 135 months’ imprison-

ment.

While Ashqar challenges his conviction—arguing that

the district court erred by refusing to give his proposed

jury instruction defining “corruptly”—he devotes most

of his brief on appeal to various challenges to his sentence.

He argues that applying the terrorist enhancement

violates his Sixth Amendment right to a jury trial because

it increases his sentence based on judicially-found facts

and on conduct for which he was acquitted. Alternatively,

even if it was constitutional to apply the enhancement,

he argues that the district court failed to make the neces-

sary predicate findings: that Ashqar intended to

promote a federal crime of terrorism, that the grand

jury was investigating a specific terrorist act, and that

this crime satisfied the definition of “federal crime of

terrorism” in 18 U.S.C. § 2332b(g)(5). Finally, Ashqar

contests the procedural reasonableness of his sentence by

arguing that the district court neglected some of his

arguments under 18 U.S.C. § 3553(a).

After a careful review of the transcripts and evidence,

we find that the district court committed no errors. We

therefore affirm Ashqar’s conviction and sentence.

I

For over ten years, the Federal Bureau of Investigation

has been investigating Ashqar for his role as a communica-

tion and financial conduit for the terrorist organization

No. 07-3879 3

Hamas. That investigation included direct meetings

between Ashqar and the FBI during the 1990s, wiretaps

of Ashqar’s telephone and fax machine, a search of

Ashqar’s home, and a review of Ashqar’s financial re-

cords. In February 1998, a grand jury sitting in the South-

ern District of New York subpoenaed Ashqar to testify

about his dealings with Hamas. Ashqar appeared but

refused to answer questions. He was found in civil con-

tempt and jailed, but he was released after he staged

a hunger strike. The FBI’s investigation into Hamas

continued, and Ashqar was subpoenaed for a second

time in June 2003 to appear before a grand jury sitting in

the Northen District of Illinois. On June 25, 2003, Ashqar

appeared before the grand jury and again refused to

answer any questions about his dealings with Hamas.

With few exceptions, Ashqar responded to any question

posed by the Assistant U.S. Attorney (“AUSA”) or the

grand jury by reading a prepared statement that summa-

rized his reasons for refusing to testify. The AUSA ex-

plained to Ashqar that the grand jury was investigating

terrorist activities by Hamas, and he provided the citations

for the statutes covering the crimes under investigation.

He told Ashqar that his testimony was “critically impor-

tant” to the grand jury’s investigation and that Ashqar’s

refusal made the investigation “extremely difficult.”

Ashqar persisted in his refusal to talk, however, even after

the court granted Ashqar immunity and ordered him to

testify. At this point, the AUSA warned Ashqar that the

government could prosecute him for criminal contempt

and obstruction of justice. For these crimes, the attorney

cautioned, Ashqar could receive maximum penalties of

4 No. 07-3879

ten years and life, respectively. Ashqar responded by re-

reading his prepared statement. At this point, the court

found Ashqar in civil contempt and the hearing ended.

As the AUSA had warned, the government charged

Ashqar with criminal contempt, in violation of 18 U.S.C.

§ 401(3), and obstruction of justice, in violation of 18 U.S.C.

§ 1503, for his refusal to testify on June 25. It also

charged Ashqar with a racketeering conspiracy, in viola-

tion of 18 U.S.C. § 1962(d), based on his two refusals to

testify. At trial, Ashqar asked the district court to use his

proposed jury instruction to define the term “corruptly”

for purposes of § 1503, but the court instead read the

Seventh Circuit Pattern Jury Instruction. On February 1,

2007, almost three months after the trial began, the jury

found Ashqar guilty of obstruction and criminal

contempt and acquitted him of racketeering.

The sentencing hearing lasted two days and included

testimony by FBI Special Agent David Bray about the

grand jury’s investigation. According to Bray, the grand

jury was investigating Hamas’s support structure in the

United States, especially the people offering financial,

logistical, and communication assistance for Hamas’s

terrorist activities abroad. Bray named several of the

people and terrorist acts under investigation, including

the murder of a Palestinian peace advocate, Sari

Nusseibah; the murder of three Israeli engineers; the

kidnapping and murder of an Israeli soldier, Ilan

Saldoan; and the April 2003 suicide bombing at a bar in

Tel Aviv.

Based on Bray’s testimony, the evidence at trial, and the

transcript of Ashqar’s testimony before the grand jury, the

No. 07-3879 5

district court applied the terrorism enhancement in

U.S.S.G. § 3A1.4 to the range applicable to Ashqar’s

criminal contempt conviction. That enhancement

popped the advisory Guideline range up to 210 to 262

months. After listening to argument from both parties,

including a 90-minute allocution by Ashqar, and consider-

ing the factors in 18 U.S.C. § 3553(a), the district court

imposed a total sentence of 135 months’ imprisonment:

120 months for the obstruction count and 135 months

for the criminal contempt count, to run concurrently.

The district court considered the sentence a balance

between the need for deterrence, the seriousness of the

act, and Ashqar’s lack of a violent history.

II

A

We first dispense with Ashqar’s challenge to his convic-

tion. His only complaint relates to the district court’s

refusal to use his definition of the term “corruptly.” As

long as the district court’s chosen instructions represent

a complete and correct statement of law, we will not

disturb them. United States v. Matthews, 505 F.3d 698, 704

(7th Cir. 2007).

A person obstructs justice if she “corruptly. . . influences,

obstructs, or impedes, or endeavors to influence, obstruct,

or impede, the due administration of justice.” 18 U.S.C.

§ 1503. Ashqar asked the district court to define “cor-

ruptly” as follows:

To act corruptly means to act knowingly and dishon-

estly with an improper motive or with an evil or

6 No. 07-3879

wicked purpose with the specific intent to influence,

obstruct, or impede the due administration of justice.

The court instead chose to use the Seventh Circuit Pattern

Jury Instruction:

To sustain each charge of obstruction of justice, the

government must prove the following propositions:

...

Third, that the defendant’s acts were done corruptly,

that is, with the purpose of wrongfully impeding the

due administration of justice.

As Ashqar acknowledges, we have already approved

the instruction used by the district court. See Matthews, 505

F.3d at 704 (holding that “with the purpose of wrongfully

impeding the due administration of justice” accurately

defines “corruptly”); see also Arthur Andersen LLP v.

United States, 544 U.S. 696, 705 (2005) (noting that the

word “corruptly” is “normally associated with wrongful,

immoral, depraved, or evil” (emphasis added)). More-

over, we considered in Matthews the definition proposed

by Ashqar—“with an improper motive or with an evil or

wicked purpose”—and noted that it unnecessarily nar-

rows the meaning of the term. Matthews, 505 F.3d at 706.

Ashqar argues that Matthews is distinguishable: defendant

Matthews was charged with perjury, obstruction of

justice, and conspiracy, while Ashqar faced a charge of

criminal contempt in addition to obstruction of justice.

Without his definition, he argues, his two charges cover

the same ground (and are thus multiplicitous), because

both have as their crux his refusal to testify. While Ashqar

No. 07-3879 7

might be correct that the crimes in Matthews were slightly

different, this is a distinction of no consequence.

Ashqar’s argument draws on language from United

States v. Macari, 453 F.3d 926 (7th Cir. 2006), that implies

that something is done “corruptly” if the act had as its

“natural and probable effect” the obstruction of justice.

If this is enough to make the act corrupt, Ashqar argues,

then the government has to prove only that Ashqar

knowingly refused to testify—and that is exactly what

it must show to prove criminal contempt. We are not

persuaded. Even if we assume that Ashqar correctly

interprets Macari, his argument ignores the fact that the

district court’s instruction was not addressing the

nexus between the corrupt state of mind and the judicial

proceeding. See United States v. Aguilar, 515 U.S. 593, 599

(1995). Instead, as Aguilar instructs, the court’s instruction

focused on the “intent to influence judicial or grand jury

proceedings.” Id. The crimes of obstruction of justice and

criminal contempt each require proof of at least one

different element: contempt requires proof that Ashqar

disobeyed a court order, 18 U.S.C. § 401(3), while ob-

struction requires proof that Ashqar refused to testify

with the purpose of wrongfully impeding justice. No

multiplicity problem exists, and the district court’s in-

struction fairly and accurately summarized the law. See

United States v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986).

B

We now consider Ashqar’s challenge to his sentence.

Ashqar urges us to find that the district court’s computa-

8 No. 07-3879

tion of his advisory Guideline sentence was incorrect,

because the court should not have applied the terrorism

enhancement in U.S.S.G. § 3A1.4. Doing so, he asserts,

violated his Sixth Amendment right to a jury trial.

Putting the Sixth Amendment to one side, he also

argues that the district court procedurally erred by not

finding all the required facts.

Ashqar argues that applying the terrorism enhance-

ment violated his Sixth Amendment right to a jury trial

in two ways: first, because in order to do so the court

relied on conduct for which the jury acquitted him; and

second, because this enhancement increased his

potential sentencing range beyond the maximum that

would have applied (or that would have been reasonable)

based solely on the facts found by the jury.

The terrorism enhancement in the Guidelines applies

if “the offense is a felony that involved, or was intended

to promote, a federal crime of terrorism. . . .” U.S.S.G.

§ 3A1.4. An offense is a “federal crime of terrorism” if it

“is calculated to influence or affect the conduct of gov-

ernment by intimidation or coercion, or to retaliate

against government conduct” and violates one of the

statutes listed in 18 U.S.C. § 2332b(g)(5)(B). See U.S.S.G.

§ 3A1.4 cmt. n.1 (defining a “federal crime of terrorism” by

reference to § 2332b(g)(5)). The district court applied the

enhancement to Ashqar based on Application Note 2,

which says:

For purposes of this guideline, an offense that in-

volved . . . (B) obstructing an investigation of a federal

crime of terrorism, shall be considered to have in-

No. 07-3879 9

volved, or to have been intended to promote, that

federal crime of terrorism.

In applying the enhancement to Ashqar, the district

court found that the “government has met its burden of

proving, by a preponderance of the evidence at a mini-

mum, that Dr. Ashqar intended to obstruct a terrorism

investigation into Hamas activities.” Ashqar argues that

this finding contradicts the jury’s verdict and thus

violates his right to a jury trial, because the jury, by

acquitting Ashqar of racketeering, found that Ashqar

did not intend to promote Hamas’s terrorist activities.

This argument fundamentally misunderstands the

meaning of an acquittal. The jury found not that Ashqar

was innocent, but that a reasonable doubt existed about

his guilt. Because the district court found Ashqar’s intent

by a preponderance of the evidence, its finding does not

contradict the jury’s verdict. Sentencing courts routinely

rely on acquitted conduct to increase a defendant’s sen-

tence, and this reliance does not violate the Sixth Amend-

ment right to a jury. See United States v. Watts, 519 U.S.

148, 154 (1997) (holding that “a sentencing court may

consider conduct of which a defendant has been acquit-

ted”); United States v. Price, 418 F.3d 771 (7th Cir.

2005) (holding that Watts survives United States v.

Booker, 543 U.S. 220 (2005)); see also 18 U.S.C. § 3661 (“No

limitation shall be placed on the information . . . which a

court of the United States may receive and consider for

purposes of imposing an appropriate sentence.”).

Ashqar also argues, relying on Apprendi v. New Jersey,

530 U.S. 466 (2000), that the enhancement violated his

10 No. 07-3879

constitutional rights because it increased his sentence

based on facts not proven to a jury beyond a reasonable

doubt. We have rejected variants of this argument count-

less times, and we do so again here. As the Supreme

Court held in Cunningham v. California, 549 U.S. 270

(2007), “the Federal Constitution’s jury-trial guarantee

proscribes a sentencing scheme that allows a judge to

impose a sentence above the statutory maximum based

on a fact, other than a prior conviction, not found by the

jury or admitted by the defendant.” 549 U.S. at 274-75.

Even though the Court explicitly identified the relevant

maximum as the statutory one, Ashqar maintains that

the correct maximum is the maximum sentence an ap-

pellate court would find reasonable based solely on the

facts found by a jury. He then argues, more or less out of

the blue, that without the additional finding of intent

to promote terrorist acts, an appellate court would find a

135-month sentence unreasonable. The sentence, Ashqar

reasons, is for that reason beyond what the judge “may

impose solely on the basis of the facts reflected in the jury

verdict . . . .” Blakely v. Washington, 542 U.S. 296, 303 (2004)

(emphasis in original). While this argument is not

without its advocates, see Rita v. United States, 551 U.S.

338, 368-85 (2007) (Scalia, J., concurring), it is not the

law. Imposing a higher sentence based on judicially-

found facts does not violate the Sixth Amendment

because “the judge could disregard the Guidelines and

apply the same sentence . . . in the absence of the special

facts . . . .” Id. at 354. So long as the Guidelines are advi-

sory, the maximum a judge may impose is the statutory

maximum. Here, there is no question the district court

No. 07-3879 11

knew the Guidelines are advisory; even though the

range was 210-262 months, it imposed an overall sen-

tence of 135 months. There is also no question the sen-

tences are below the statutory maximum. The statutory

maximum for obstruction is 10 years (120 months), and

that is the sentence the district court chose for that count;

the statutory maximum for criminal contempt is life,

well above the 135 months Ashqar received on that count.

In the alternative, Ashqar argues that the district court

erred procedurally because it neglected to find all the

necessary facts before applying the enhancement. Ashqar

identifies three allegedly missing factual findings: (1) that

Ashqar intended to promote a federal crime of terrorism;

(2) that the grand jury was investigating a specific crime

of terrorism; and (3) that the crime was calculated to

influence the actions of a government, as required under

§ 2332b(g)(5)(A).

The terrorism enhancement applies to obstruction of

justice if “the district court finds that the purpose or intent

of the defendant’s substantive offense of conviction or

relevant conduct was to promote a federal crime of terror-

ism as defined by § 2332b(g)(5)(B).” United States v.

Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005). Ashqar

argues that the district court, instead of finding this

required intent, interpreted Application Note 2 as if it

imposed strict liability. If Ashqar obstructed justice, and

the investigation dealt with a specific crime of terrorism,

then (under the interpretation Ashqar attacks) the en-

hancement applies without any additional findings.

He contends that this contradicts the text of § 3A1.4 by

12 No. 07-3879

eliminating the requirement that the offense must be

“intended to promote” a federal crime of terrorism.

To the extent Note 2 could be read to say that a con-

viction for obstructing an investigation of a federal

crime of terrorism “involves” a federal crime of terrorism,

we can see that there might be problems. In United States

v. Parr, 545 F.3d 491 (7th Cir. 2008), we noted that “[t]he

term ‘involve’ as used in the guidelines is not quite so

broad; it means ‘to include.’ . . . Thus, we have held that

an offense ‘involves’ a federal crime of terrorism only if

the crime of conviction is itself a federal crime of terror-

ism.” Id. at 504 (citations omitted). Obstruction is not

among the crimes listed as a possible federal crime of

terrorism in the statute. See § 2332b(g)(5)(B). But the

district court here did not rely on that part of Note 2,

nor did it find that Ashqar’s offense involved a federal

crime of terrorism. It instead asked “whether or not the

purpose or intent of [Ashqar’s] offense of conviction . . .

was intended to promote a federal crime of terrorism.”

This question tracks both the text of § 3A1.4 and Arnaout.

Ashqar responds that even if the district court asked

the right question, it gave an insufficient answer because

it found not that Ashqar “intended to promote” a federal

crime of terrorism, but that Ashqar “intended to obstruct

a terrorism investigation into Hamas activities.” The

government counters that obstructing an investigation

into a crime can be one way of promoting that crime.

Thus, intent to obstruct an investigation is enough, at

least where obstructing an investigation promotes the

crime. We agree. Promoting a crime includes helping

and encouraging that crime, and one way of furthering

No. 07-3879 13

a crime is to try to prevent the government from

finding out about it. So long as the sentencing court

finds that the defendant intended to obstruct an inves-

tigation into a federal crime of terrorism, as opposed to

an investigation into more ordinary violations of the law,

the court has found the intent required to apply § 3A1.4.

Ashqar also claims that the district court found neither

that the grand jury was investigating a specific crime of

terrorism nor that any crime under investigation met

the requirement in 18 U.S.C. § 2332b(g)(5)(A). The record,

however, does not support this assertion. The district

court began its discussion of the terrorism enhancement

by noting the definition of a federal crime of terrorism

in § 2332b(g)(5), including the requirement that the

crime be “calculated to influence or affect the conduct

of government or to retaliate against government con-

duct.” § 2332b(g)(5)(A). It then identified the evidence

on which it relied in finding that the grand jury was

investigating such a crime: Agent Bray’s testimony at the

sentencing hearing, the evidence at trial, and Ashqar’s

testimony before the grand jury. The court even quoted

from the transcript and listed the specific crimes, accompa-

nied by the statute number, that it found were under

investigation. Perhaps the district court never said “and

I find that these crimes were intended to influence a

government” but such formality is hardly necessary. A

sentencing court must “identify which enumerated

federal crime of terrorism the defendant intended to

promote, satisfy the elements of § 2332b(g)(5)(A), and

support its conclusions by a preponderance of the evi-

dence with facts from the record.” Arnaout, 431 F.3d at

14 No. 07-3879

1002. The district court here identified the crimes under

investigation, stated the proper definition of a federal

crime of terrorism, and then found that the identified

crimes qualified as federal crimes of terrorism. It sup-

ported these findings with specific facts in the record,

and Ashqar does not argue that these findings are

clearly erroneous. This was enough.

Finally, Ashqar contends that his sentence is procedur-

ally unreasonable because the district court failed to

consider several of his arguments, including the following:

Ashqar’s various criticisms of Application Note 2; the

historical oppression of Palestine; his fear of Israel’s

retribution; the impropriety of the grand jury’s inquiry

into events prior to Hamas’s designation as a terrorist

organization; and the implications of Ashqar’s acquittal

of the racketeering charge.

“The sentencing judge should set forth enough to

satisfy the appellate court that [s]he has considered the

parties’ arguments and has a reasoned basis for

exercising [her] own legal decisionmaking authority.” Rita,

551 U.S. at 356. Despite what Ashqar contends, Rita

does not require the district court to state why it rejects

every argument offered by the defendant. This case

illustrates the reason for such a rule, as Ashqar’s sen-

tencing brief filled 175 pages. The district court diligently

considered the § 3553(a) factors before sentencing

Ashqar. The one factor the district court did not explicitly

mention was § 3553(a)(6)—the need to avoid unwarranted

sentence disparities among similar defendants. Ashqar

brands this omission as unreasonable, while the gov-

No. 07-3879 15

ernment dismisses this argument as frivolous and

therefore reasonably omitted. Since Ashqar offered as

comparators only defendants not subject to the

terrorism enhancement, we agree with the govern-

ment’s characterization. The district court considered

the parties’ arguments and explained in detail its

reasons for choosing the sentences it did. That was all it

had to do.

***

We A FFIRM the judgment of the district court.

10-2-09