Opposition Brief — Khan v. United States, 127 S. Ct. 2428 (2007) (No. 06-1116)

FILED

@ (3) APR 20 2007

OFFI

Nos. 06-1116 and 06-9394 SUPREME oouAT Us

In the Supreme Court of the Anited States

MASOUD AHMAD KHAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

SEIFULLAH CHAPMAN AND HAMMAD ABDUR-RAHEFM,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

KENNETH L. WAINSTEIN

Assistant Attorney General

JOHN F. DEPUE

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners were properly sentenced to

consecutive terms of imprisonment for multiple offenses

of using, carrying, possessing, and discharging firearms,

in violation of 18 U.S.C. 924(c).

2. Whether petitioners knowingly, intelligently, and

voluntarily waived their right to a jury trial.

3. Whether petitioners were properly denied dis-

covery in support of a claim of selective prosecution.

TABLE OF CONTENTS

Page

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SIO onc dn ccanue vaverekedes sevasaedersscionieee 2

PEE vaneUebdeddeviaesinesesninieetiiieee 2

ME 5 vn 8nd ctinnacreend badtedeereeee nee 13

CS ove cavasedssckaevaubadstscueur ence 30

TABLE OF AUTHORITIES

Cases:

Blockburger v. United States, 284 U.S. 299 (1932) ...... 1]

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ........... 28

Johnson v. Nix, 763 F.2d 344 (8th Cir. 1985) .....2. 5... 26

Johnson v. United States, 520 U.S. 461 (1997)... ........ 24

Marone v. United States, 10 F.3d 65 (2d Cir. 1993) . . 24, 25

Oyler v. Boles, 368 U.S. 448 (1962) ...... 2. cece eee 28

Reno v. American-Arab Anti-Discrimination

Cs. Ge Us SF8 CR ob oo cdctceusvocteccess 27

United States v. Anderson, 59 F.3d 1323 (D.C. Cir.),

cert. denied, 516 U.S. 999 (1995) ...........0000. 14, 18

United States v. Armstrong, 517 U.S. 456

CRN bd ceCasbeesdtokuntivunweeiiesnes 11, 27, 28, 29

United States v. Batchelder, 442 U.S. 114 (1979) 2.2.2... 28

United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974) ... 28

United States v. Bishop, 291 F.3d 1100 (9th Cir.

2002), cert. denied, 537 U.S. 1176 (2008) ............ 25

United States v. Booker, 543 U.S. 220 (2005) ........0.... 2

United States v. Camps, 32 F.3d 102 (4th Cir. 1994),

cert. denied, 513 U.S. 1158 (1995) .............0 cee 15

(IIT)

IV

Cases—Continued: Page

United States v. Cappas, 29 F.3d 1187 (7th Cir.

EE «cu dunes bests pons se4 ndash aden teea 14,19

United States v. Casiano, 113 F.3d 420 (3d Cir.),

cert. denied, 522 U.S. 887 (1997) ...............006- 14

United States v. Chemical Found., Ine., 272 U.S.1

8 Ra eras Neha Pan ye Oey ee Benen mre hee ges 27

United States v. Cochran, 770 F.2d 850 (9th Cir.

RR Sh Bere ivan peg Pega etl apie hs pa 25

United States v. Edwards, 994 F.2d 417 (8th Cir.

1993), cert. denied, 510 U.S. 1048 (1994) ............ 14

United States v. Finley, 245 F.3d 199 (2d Cir. 2001),

cert. denied, 534 U.S. 1144 (2002) ............... 15, 16

United States v. Garrett, 727 F.2d 1003 (11th Cir.

1984), aff'd, 471 U.S. T73 (19BB) ow... cece eee 20, 24

United States v. Hamilton, 953 F.2d 1344 (9th Cir.),

cert. denied, 506 U.S. 871, 506 U.S. 884, and 506

By Me CREE 4 a6 b's Coder Rchedis pemcadnsene eens 14

United States v. Hunt, 413 F.2d 983 (4th Cir.

ST a vipcisciekinkbedenedsuhidredeuaae deers 10, 25

United States v. Johnson, 25 F.3d 1335 (6th Cir.

Re er eee a em ere ie 16,17

United States v. Leja, 448 F.3d 86 (1st Cir.

Se a6 bus odie Po Uda enbWuee ee ceceeieaes 20, 21, 23, 25

United States v. Lindsay, 985 F.2d 666 (2d Cir.), cert.

denied, 510 U.S. SHZ (1908) 2... ccc cece cccescees 14

United States v. Martinez-Salazar, 528 U.S. 304

EE ic 4 ted Le a ads cua ees cae eae 26

United States v. Morris, 247 F.3d 1080 (10th Cir.

RR Oe hooey ae ors 2 ee era eee oe rare 14

Cases—Continued: Page

United States v. Page, 661 ¥'.2d 1080 (5th Cir.

1981), cert. denied, 455 U.S. 1018 (1982) ...21, 22, 23, 24

United States v. Phipps, 319 F.3d 177 (Sth Cir.

ME ein a heid's ws i GA ee eee 17,18

United States v. Privette, 947 F.2d 1259 (Sth Cir.

1991), cert. denied, 503 U.S. 912 (1992) .......... 14, 19

United States v. Robertson, 45 F.3d 1423 (10th Cir.),

cert. denied, 515 U.S. 1108, and 516 U.S. 844

CUES nb 0s obo 50 aaa eae RAR Ee eee ae ee 20

United States v. Rodriguez, 888 F.2d 519 (7th Cir.

PE oe neoeeestabecededssiuslesetiel aac reee 25

United States v. Salameh, 261 F.3d 271 (2d Cir.

2001), cert. denied, 536 U.S. 967, and 537 U.S. 847

SE cea wou chva Cin se Caen eee eta steel ey 16

United States v. Taylor, 13 F.3d 986 (6th Cir. 1994) ..... 14

United States v. Vonn, 535 U.S. 55 (2002) ............. 24

United States v. Wallace, 447 F.3d 184 (2d Cir.), cert.

SOR, Fer te Sr Oe GIT vk ne Saeed éxcecedeaass 16

United States v. Wilson, 160 F.3d 732 (D.C. Cir.

1998), cert. denied, 528 U.S. 828 (1999) ............. 16

Wayte v. United States, 470 U.S. 598 (1985) ........ 27, 28

Constitution, statutes and rules:

U.S. Const. Amend. V (Double Jeopardy Clause) ....... 1]

ee Eas RS a Sas Bas Ses ae ok ee eae 2,3

Pe CAE vo kas betwee seeccetcsvustiatee passim

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ge ome ey it esrrers reer ere yer poor 14

Se Sa NE A 65's paca Nuaerek ache) tba hehe 2,3

VI

Statutes and rules: Page

a ES 054 b ¥Ax sip doe 0450 owe 4ds6e Fed boebu seis 8, 26

18 U.S.C. 2339A (Supp. I] 2002) .... 2... cece c cece 2,3

i ts clad hae ea'Geae bG0 ue pwd eu hao ceweeee nes 2

rE 2 Vers cian als oe see ta wel eed andes Fan bene 2

Fed. R. Crim. P.:

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DE deci oyeuas veneers seus eediweur een 10, 20, 24

LED v6 dccdevvusdiserbeceudaaeded seeker ver 20

| Be a ee 7

ED 5d Po eN a oWGike os 64404 oe ee aael er cae eee 24

Miscellaneous:

Memorandum from the Assistant Att’y Gen.,

Criminal Div., DOJ, regarding multiple convictions

and sentences under 18 U.S.C. 924(c) (Aug. 24,

1999), reprinted in U.S. Dep't of Justice, Federal

Firearms Manual, (3d ed. 2001) ..............0006. 14

Press Release, U.S. Att’y C.D. Cal., DOJ, President

of Cambodian Freedom Fighters Arrested in

Alleged Plot to Overthrow Cambodian

Government (June 1, 2005) <http:/Avwww.usdoj.

gov/usao/cac/news/pr2005/079.htmi> .............. 29

In the Supreme Court of the Amted States

No. 06-1116

MASOUD AHMAD KHAN, PETITIONER

v.

UNITED STATES OF AMERICA

No. 06-9398

SEIFULLAH CHAPMAN AND HAMMAD ABDUR-RAHEEM,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-34a)

is reported at 461 F.3d 477.' The opinion of the district

court (Pet. App. 35a-83a) is reported at 309 F. Supp. 2d

789.

,

' Unless otherwise noted, all references to “Pet. App.” are to the

Appendix filed in No. 06-1116.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

September 1, 2006. A petition for rehearing was denied

on September 29, 2006 (Pet. App. 84a-85a). The peti-

tions for a writ of certiorari were filed on December 28,

2006. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Following a bench trial in the United States District

Court for the Eastern District of Virginia, petitioner

Khan was convicted of conspiring to commit offenses

against the United States, including enlisting with intent

to serve in armed hostility against the United States, in

violation of 18 U.S.C. 371 (Count 1); conspiracy to levy

war against the United States, in violation of 18 U.S.C.

2384 (Count 2); conspiracy to contribute services to the

Taliban, in violation of 50 U.S.C. 1705 (Count 4); conspir-

acy to contribute material support to terrorists, in viola-

tion of 18 U.S.C. 2339A (Supp. IT 2002) (Count 5); con-

spiracy to possess and use a firearm in connection with

a crime of violence, in violation of 18 U.S.C. 924(0)

(Count 11); and three counts of using, carrying, possess-

ing, and discharging firearms during and in relation to

and in furtherance of crimes of violence, in violation of

18 U.S.C. 924(c) (Counts 24, 25, 27). Pet. App. 35a-36a,

70a. After an initial remand for resentencing of peti-

tioners in light of United States v. Booker, 543 U.S. 220

(2005), see Pet. App. 7a, Khan was sentenced to 60

months of imprisonment on Count 1, a concurrent 120-

month sentence on Count 2, a concurrent 120-month

sentence on Count 4, a concurrent 120-month sentence

on Count 5, a concurrent 120-month sentence on Count

11, a consecutive 120-month sentence on Count 24, a

3

consecutive 300-month sentence on Count 25, and a con-

secutive sentence of life imprisonment on Count 27.

C.A. App. 3451-3453.

Petitioner Chapman was convicted of conspiring to

commit offenses against the United States, including

taking part in a military expedition against a foreign

state with whom the United States was at peace, in vio-

lation of 18 U.S.C. 371 (Count 1); conspiracy to contrib-

ute material support to terrorists, in violation of 18

U.S.C. 2339A (Supp. II 2002) (Count 5); conspiracy to

possess and use a firearm in connection with a crime of

violence, in violation of 18 U.S.C. 924(0) (Count 11); and

two counts of using, carrying, possessing, and discharg-

ing firearms during and in relation to, and in further-

ance of crimes of violence, in violation of 18 U.S.C. 924(c)

(Counts 20, 22). Pet. App. 35a-36a, 70a. He was sen-

tenced to 60 months of imprisonment on Count 1, a con-

current 120-month sentence on Count 5, a concurrent

120-month sentence on Count Ll, a consecutive 300-

month sentence on Count 20, and a consecutive 360-

month sentence on Count 22. C.A. App. 3459-3460.

Petitioner Hammad Abdur-Raheem (Hammad) was

convicted of conspiring to commit offenses against the

United States, including taking part in a military expedi-

tion against a foreign state with whom the United States

was at peace, in violation of 18 U.S.C. 371 (Count 1); con-

spiracy to contribute material support to terrorists, in

violation of 18 U.S.C. 2339A (Supp. II 2002) (Count 5);

and conspiracy to possess and use a firearm in connec-

tion with a crime of violence, in violation of 18 U.S.C.

924(0) (Count 11). Pet. App. 35a-36a, 70a. He was sen-

tenced to 52 months of imprisonment on Count 1, a con-

current 52-month sentence on Count 5, and a concurrent

52-month sentence on Count 11. C.A. App. 3465-3466.

4

The court of appeals affirmed petitioners’ convictions

and the sentences of Khan and Chapman. On the govern-

ment’s cross-appeal, the court of appeals reversed and

remanded Hammad’s sentence as an unreasonable vari-

ance from the advisory range under the Sentencing

Guidelines. Pet. App. la-34a.

1. a. Between 1999 and September 11, 2001, peti-

tioners, and their associates, including Muhammed

Aatique, Randall Todd Royer, Young Ki Kwon, Khwaja

Mahmood Hasan and Caliph Basha Ibn Absur-Raheem

(Caliph), attended Dar al Arqam Islamic Center in Falls

Church, Virginia where Ali Timimi, a religious leader,

preached the necessity of engaging in a violent holy war,

or jihad, against the enemies of Islam. Several of the

attendees, including petitioners Chapman and Hammad,

organized a group to prepare to engage in jihad by simu-

lating combat through paintball exercises and practices

at firing ranges. By the early summer of 2000, the

group met every other weekend. Chapman, Hammad,

and others brought AK 47-style rifles to paintball train-

ing and practiced marksmanship. Pet. App. 2a-3a. Be-

cause Chapman and Hammad had military experience,

they also assisted in leading the paintball exercises and

conducted training that was “out-of-character for a rec-

reational paint-ball pastime.” /d. at 3a.

During this period, members of the group had ties to

Lashkar-e-Taiba (LET), the military arm of a Pakistani

organization which, between 1999 and 2003, focused on

expelling India from Kashmir and advertised free jihad

training in Pakistan. Pet. App. 3a, 52a. Between April

and September 2000, Royer, followed by Hamdi, trav-

eled to Pakistan, where they received military training

at LET camps and acknowledged participation in hostili-

ties. /d. at 53a-d4a. Upon their return, they rejoined

a ‘stil

the paintball group and discussed their jihad experi-

ences with LET with the other paintball participants.

Id. at 3a, 55a. In the summer of 2001, Chapman, who

sought more realistic combat experience, traveled to the

LET camps in Pakistan where he participated in train-

ing that included firing various rifles and handguns, in-

cluding an automatic weapon. /d. at 3a.

On September 16, 2001, Timimi met with a small

group, including petitioners Khan and Hammad, and

stated that the September 11, 2001, terrorist attacks

against the United States were justified. He exhorted

those present to defend the Taliban against United

States armed forces who were expected to invade Af-

ghanistan in response to the attack. Several attendees,

including Khan, expressed their intent to train at LET

camps as preparation for serving with the Taliban in

Afghanistan. Pet. App. 4a, 56a-57a.

Following the September 16, 2001, meeting with

Timimi, Khan “exhorted the others to go with him to

Afghanistan because ‘the cowards and the weak hearted

are the first to run away.” Pet. App. 8a (quoting C.A.

App. 1013). Petitioner Khan, along with Kwon, Aatique

and Hasan, agreed to go to Pakistan for jihad training

with the intent to fight in Afghanistan upon its comple-

tion. Pet. App. 8a-9a, 57a. Kwon, Hasan, and Khan

agreed that Khan would be their “emir” or leader. /d.

at 4a, 9a.

Khan, Hasan, and Kwon spent about six weeks in the

LET camps during which they received training in com-

mando tactics, reconnaissance, hand-to-hand combat and

survival. They also received instruction on and used

various firearms, including the AK-47 automatic rifle, an

anti-aircraft gun, a rocket-propelled grenade, and

mines. Pet. App. 4a, 57a-59a.

6

In November 2001, while at an LET camp, Khan,

Hassan, and Kwon learned through radio reports that

American forces were defeating the Taliban in Afghani-

stan and that, because Pakistan had closed the border

with Afghanistan, LET would not facilitate their travel

there. Moreover, Pakistani authorities were aggres-

sively removing foreigners from their camps. As a re-

sult, the three men left the camps without ever reaching

Afghanistan. Pet. App. 5a, 59a.

b. In February 2003, law enforcement authorities

executed a search warrant on Timimi’s residence. On

March 24, 2003, the Federal Bureau of Investigation

approached Caliph, one of the participants in the paint-

ball training. Caliph informed them that the training

was intended as preparation for jihad and that the train-

ees had purchased AK-47-style rifles because they were

the type of rifles used overseas. When Hammad learned

of Caliph’s admissions, he called a colleague “with the

‘bad news’ that Caliph had ‘cracked.’” Pet. App. 5a. In

June 2003, as a result of the investigation, petitioners,

along with eight co-defendants, including Caliph, Kwon,

Aatique, Hasan, and Royer, were indicted for various

offenses, including conspiracy to engage in military ex-

peditions against the United States and India. Four of

the defendants, including Kwon, Aatique, and Hasan,

entered pleas of guilty and agreed to cooperate with the

government. /bid. In September 2003, the government

charged the remaining defendants in a 32-count super-

seding indictment which alleged that petitioner Khan,

but not petitioners Chapman and Hammad, conspired to

levy war against the United States, to provide material

7

support to Al-Qaeda, and to contribute services to the

Taliban. /d. at 5a & n.3.°

2. a. Before trial, Chapman, Hammad, and two co-

defendants moved to sever their trial from that of Kahn

and Royer on the ground that Khan and Rover were the

only defendants charged with conspiring to levy war

against the United States and to support Al-Qaeda and

the Taliban. C.A. App. 186. The district court denied

the motion. /d. at 189.

Chapman later renewed the severance motion in

writing and, in the alternative, requested a bench trial.

C.A. App. 218-221. The motion observed that “[a] bench

trial would likely result in a much shorter trial, and most

certainly, would afford the accused with the opportunity

to receive a fair trial.” /d. at 220-221; Pet. App. 6a. At

a hearing with petitioner Chapman present, the district

court indicated it would deny the renewed severance

motion. C.A. App. 224-226. The court noted Chapman’s

“alternative * * * motion to. waive jury,” and re-

quested the government’s position: “The government

has a right to trial by jury as well as the defendant, and

so both sides have to agree to a waiver.” /d. at 225.

Hammad, through counsel, filed a written motion to

join Chapman’s renewed motion for severance or, in the

alternative, to waive a jury (Docket No. 387; C.A. App.

302; Pet. App. 6a), and Khan, through counsel, filed a

written motion to join Chapman’s motion to waive a jury

(C.A. App. 281). The government filed a written concur-

* In addition to petitioners, the superseding indictment named as

defendants Royer, [brahim Ahmed Al-Hamdi, Caliph, and Sabri Benk-

hala. Royer and Hamdi entered pleas of guilty. Benkhala was tried

separately and acquitted. Pet. App. 5a-fa. Caliph, who was tried with

petitioners, was granted an acquittal under Federal Rule of Criminal

Procedure 29. Pet. App. 6a.

8

rence to a bench trial. /d. at 300. In a written order, the

district court denied the renewed severance motions but

granted the motions for a bench trial. Pet. App. 6a; C.A.

App. 302-303."

b. Petitioners filed a pretrial motion alleging selec-

tive prosecution and seeking dismissal of the indictment

or, in the alternative, discovery to support such a claim.

They alleged that they were targeted for prosecution

because of their Muslim religion and that, before their

indictment, the government had not undertaken any

prosecutions under the Neutrality Act, 18 U.S.C. 960, in

the Eastern District of Virginia in over 100 years. C.A.

App. 189-190. The district court denied the motion, stat-

ing that petitioners “have not identified any similarly

situated persons not prosecuted” and that the inclusion

of information about Islam in the indictment was “rele-

vant to the offenses charged” and “its inclusion dlid] not

show animus by the Government.” /d. at 190. At the

close of trial, petitioners renewed the motion, alleging

that the Cambodian Freedom Fighters (CFF), led by

one Yasith Chhun, and the Irish Republican Army (IRA)

engaged in similar conduct in an open and notorious

manner yet were not prosecuted. /d. at 3234-3240. The

district court again denied the motion, reasoning that

the government had adequately demonstrated that LET

had links to anti-American activity whereas there was no

similar evidence with respect to the other identified

groups. /d. at 3385-3386.

’ Caliph separately moved for a severance. When his motion was

denied at a hearing at which he was the only defendant present. Caliph

orally moved, through counsel, to join Chapman's motion for a bench

trial. Pet. App. 6a n.4; C.A. App. 295-296. At that time, the district

court questioned Caliph directly about his knowledge of his right to a

jury trial. Pet. App. 89a-90a; C.A. App. 296-297.

9

c. Various combinations of petitioners and their co-

defendants were charged in 16 separate counts alleging

the use, discharge, or possession of a firearm during and

in relation to or in furtherance of federal crimes of vio-

lence, in violation of 18 U.S.C. 924(¢)(1)(B)(ii). The sepa-

rate counts were preceded by an introductory paragraph

incorporating by reference the general allegations and

overt acts in Count 1 of the indictment, which included

reference to five separate conspiracy counts. The Sec-

tion 924(c) counts then listed the identities of the partic-

ular petitioners or co-defendants charged with the viola-

tion, the date and location of the offense, the type of fire-

arm involved, and an allegation whether the firearm was

used, possessed, or discharged. C.A. App. 151-152.

At the conclusion of the trial, the district court made

particularized findings concerning each of the counts. It

linked Chapman’s possession of a Saiga .308 rifle

charged in Count 20 to the conspiracy to violate the

Neutrality Act alleged in Count 1 and therefore con-

victed him on that firearms count. Pet. App. 8la. It

likewise convicted him of firing an AK-47, as alleged in

Count 22, observing that such conduct, which occurred

at an LET camp, was during and in relation to both the

conspiracy to violate the Neutrality Act and the conspir-

acy to provide material support to LET. /d. at 82a-83a.

The court found that, at an LET camp, petitioner Khan

fired an AK-47 rifle, as alleged in Count 24; an anti-air-

craft gun, as alleged in Count 25; and a rocket-propelled

grenade, as alleged in Count 27. Ii further found that

“firing these weapons at the LET camp was during and

in relation to the predicate conspiracy crimes of vio-

lence.” /d. at 83a. At sentencing, the district court im-

posed sentences on these counts that, as required by

Section 924(c), were consecutive to both the sentences

10

on the underlying crimes of violence, ’.e., the conspiracy

counts, and to the sentences on the other Section 924(c)

counts. C.A. App. 3451-3453, 3459-3460.

2. The court of appeals affirmed. Pet. App. 1a-34a."

It rejected petitioners’ claim that their jury-trial waiv-

ers were invalid because the district court failed to ob-

tain written waivers from petitioners, as opposed to

their counsel, and did not conduct a colloquy directly

with petitioners. Although the court observed that “it

would be ‘better practice’ for a district judge to interro-

gate a defendant who claims through counsel that he

wants to waive his jury trial right,” the court concluded

that neither Rule 23(a) of the Federal Rules of Criminal

Procedure nor the Constitution requires it. /d. at l5a

(quoting United States v. Hunt, 413 F.2d 983, 984 (4th

Cir. 1969) (per curiam)). It found that the record here

supported the conclusion that the waivers were volun-

tary, knowing, and intelligent “even though signed by

counsel and in the absence of a colloquy.” /d. at 16a.

The court concluded that the motions for waiver were

made as an alternative to the motions for severance

“as a calculated part of [petitioners’] trial strategy to

prevent ‘inflammatory and prejudicial evidence’ from

biasing a jury.” Jbid. (quoting C.A. App. 220). The

court likewise rejected the arguments of Chapman and

Hammad that their waivers were not knowing and vol-

untary because, by denying their motions to sever, the

district court forced them to relinquish their right to a

jury trial. The court reasoned that the fact that peti-

tioners “would have preferred severed jury trials [did]

* On the government's appeal, the court reversed Hammad's sen-

tence and remanded for resentencing. Pet. App. 26a-30a.

11

not make their choice of a non-severed bench trial” un-

knowing or involuntary. Jbid.

b. The court rejected Khan and Chapman’s argu-

ment that they should not have received separate, con-

secutive sentences on their 18 U.S.C. 924(c) offenses

because the underlying predicate offenses for those con-

victions all related to the same criminal “episode.” The

court reasoned that convictions for separate crimes of

violence can lead to multiple consecutive sentences un-

der Section 924(c) as long as the predicate offenses are

distinct under the Double Jeopardy Clause. Pet. App.

17a-19a. The court explained that, if the predicate of-

fenses are not identical under Blockburger v. United

States, 284 U.S. 299 (1932), consecutive sentences under

Section 924(c) are permissible. Pet. App. 18a-19a.

The court noted that Khan was convicted of “fowr

predicate crimes of violence,” Pet. App. 18a, and that

“each may support a consecutive § 924(c) sentence with-

out requiring the court first to enumerate ‘uses’ of fire-

arms.” /d. at 19a. In the court’s view, it was inconse-

quential that the Section 924(c) counts listed all the

predicate offenses as part of the same general factual

allegation. It reasoned that “there is no housekeeping

requirement” under either Section 924(c) obliging the

government or the district court “to align the use of a

particular firearm with a particular predicate offense.”

Id. at 20a.

ce. The court of appeals rejected petitioners’ claim

that they had been improperly denied discovery on their

selective prosecution claim. The court reasoned that, to

obtain discovery on such a claim, a defendant must make

“a credible showing of different treatment of similarly

situated persons.” Pet. App. 25a (quoting United States

v. Armstrong, 517 U.S. 456, 470 (1996)). The court con-

12

cluded that petitioners’ claim that the only distinguish-

ing factor between themselves and the other groups

they identified as similarly situated is that they are

“Muslim in a post-9/11 world,” id. at 26a (quoting Pet’rs

C.A. Br. 88), disregarded “the very obvious fact that

[petitioners] were accused of supporting LET, a terror-

ist group that supported the Taliban and Al-Qaeda,

which were in direct conflict with the United States.”

Ibid. The court observed that the Executive has “the

right to focus its prosecutorial energies on alleged ter-

rorist{ | groups that present the most direct threat to the

United States and its interests.” /bid. Accordingly, the

court held that the district court did not err in denying

discovery on petitioners’ selective prosecution claims.

Ibid.”

d. Judge Goodwin dissented in part, stating that he

would merge Khan’s three Section 924(c) convictions

into one 120-month sentence. Pet. App. 30a-34a. In his

view, under the governing law of the Fourth Circuit,

each use of a firearm during and in relation to a qualify-

ing conspiracy offense constitutes a basis for a separate

prosecution and, upon conviction, a consecutive sen-

tence. Judge Goodwin concluded, however, that only

° The court of appeals also considered and rejected petitioners’

claims that thev were entitled to reversal of their convictions because

the evidence was insufficient to support them (Pet. App. Sa-13a); that

the severance motions of Chapman and Hammad were improperly

denied (id. at 13a-14a); that Counts 5 and 11 were invalid as conspira-

cies to conspire (/d. at 16a-17a); that the Section 924(c) sentences were

unconstitutional (7d. at 20a-2la); that the district court improperly

admitted co-defendant Caliph’s out-of-court statements for use against

them (/d. at 22a-23a) and that it improperly admitted Chapman's un-

warned statements to law enforcement authorities against him for the

purpose of impeachment (/d. at 23a-25a). Petitioners do not press these

claims in this Court.

13

uses of a firearm that are distinct from one another jus-

tify multiple sentences. /d. at 3la-34a. Thus, where the

“uses” of “different firearms relate to the same objec-

tive, have the same effect on the predicate crime, and

are used or carried proximately in time,” he would im-

pose only one Section 924(c) sentence. /d. at 32a. In his

view, Khan had only one objective when firing the weap-

ons that supported his three Section 924(c) convic-

tions—enhancement of his training in preparation for

movement to Afghanistan. In addition, he found no evi-

dence establishing the objectives, effects, and proximity

of each such use of a firearm. Accordingly, Judge Good-

win would not have imposed separate sentences. /d. at

34a.

ARGUMENT

1. Petitioners Khan and Chapman contend (06-1116

Pet. 7-15; 06-9398 Pet. 7-14) that the district court erred

in imposing consecutive terms of imprisonment for their

multiple violations of 18 U.S.C. 924(c) because (in their

view) the predicate offenses resulted from a single crim-

inal episode involving a single objective. The court of

appeals correctly rejected that claim, and no further

review is warranted. :

a. Section 924(c) prohibits using or carrying a fire-

arm during and in relation to a federal crime of violence

or drug trafficking crime, or possessing a firearm in fur-

therance of any such crime. It further provides:

no term of imprisonment imposed on a person under

this subsection shall run concurrently with any other

term of imprisonment imposed on the person, includ-

ing any term of imprisonment imposed for the crime

of violence or drug trafficking crime during which

the firearm was used, carried, or possessed.

14

18 U.S.C. 924(c)(1)(D)(ii).

The majority of the courts of appeals that have ad-

dressed the question have held that each underlying

predicate crime of violence or drug trafficking crime can

support a separate Section 924(c) conviction and consec-

utive sentence. See United States v. Morris, 247 F.3d

1080, 1084 (10th Cir. 2001); United States v. Casiano,

113 F.3d 420, 425-426 (3d Cir.), cert. denied, 522 U.S.

887 (1997); United States v. Anderson, 59 F.3d 1323,

1334 (D.C. Cir.) (en bane), cert. denied, 516 U.S. 999

(1995); United States v. Cappas, 29 F.3d 1187, 1189 (7th

Cir. 1994); United States v. Taylor, 13 F.3d 986, 992-994

(6th Cir. 1994); United States v. Lindsay, 985 F.2d 666,

674-675 (2d Cir.), cert. denied, 510 U.S. 882 (1993);

United States v. Hamilton, 953 F.2d 1344, 1346 (9th

Cir.) (per curiam), cert. denied, 506 U.S. 871, 506 U.S.

884, and 506 U.S. 1020 (1992); United States v. Privette,

947 F.2d 1259, 1262-1263 (5th Cir. 1991), cert. denied,

503 U.S. 912 (1992);” but see United States v. Edwards,

994 F.2d 417, 423-424 (8th Cir. 1993) (holding that sepa-

rate uses of different weapons at different times during

the course of a single, continuing predicate offense can

support separate Section 924(c) convictions), cert. de-

nied, 510 U.S. 1048 (1994). The court of appeals applied

the majority approach to petitioners’ multiple Section

924(c) convictions, upholding their consecutive sentences

under that statute on the basis of separate underlying

predicate convictions. See Pet. App. 17a-20a; id. at 19a

" The majority’s position accords with that taken by the Department

of Justice with respect to prosecution of multiple Section 924(¢) counts.

See Memorandum from the Assistant Att’y Gen., Criminal Div. DOJ,

regarding multiple convictions and sentences under 18 U.S.C. 924(¢)

(Aug. 24, 1999), reprinted in U.S. Dep't of Justice, Federal Firearns

Manual App. A at 333-336 (3d ed. 2001).

15

(holding that Khan’s four predicate crime-of-violence

convictions may each support a consecutive Section

924(c) sentence); id. at 8la-83a.'

Petitioners maintain (06-1116 Pet. 8-9; 06-9398 Pet.

8-9), that several circuits have held that, even when mul-

tiple Section 924(c) counts are based upon different

predicate offenses, consecutive Section 924(c) sentences

are improper if the predicate offenses involve the same

criminal “episode.” Because adoption of that principle

would not have affected petitioners’ sentences, any

inter-circuit conflict on that issue does not warrant this

Court’s review in this case.

In United States v. Finley, 245 F.3d 199, 207-208 (2d

Cir. 2001), the defendant was convicted of possessing

drugs with intent to distribute and drug distribution

after an undercover officer purchased drugs and, imme-

"In United States v. Camps, 32 F.3d 102, 106-109 (1994), cert.

denied, 513 U.S. 1158 (1995), a different panel of the Fourth Circuit

held, contrary to the majority view, that a single, continuing federal

crime of violence can support multiple convictions and consecutive sen-

tences under Section 924(c) when a defendant has used or carried a fire-

arm on separate occasions during the course of the offense. Signifi-

cantly, however, as petitioners acknowledge (06-1116 Pet.3 n.2; 06-9398

Pet. 4 n.2), the panel in this case did not base its affirmance of petition-

ers’ sentences on that principle. See Pet. App. 18a (noting that, because

“Khan was convicted of four predicate crimes of violence, not a ‘single

predicate offense, * * * we therefore [do] not need to count ‘uses’”).

Accordingly, this case provides no occasion for the Court to resolve any

inter-circuit conflict on whether, and under what circumstances, a single

predicate offense can support multiple Section 924(¢) convictions. As

the court below recognized, id. at 18a n.9, Judge Goodwin's dissent was

premised on the mistaken assumption that the majority's holding

rested on Camps and that consequently, under the reasoning of that

case, it Was necessary to determine whether the charged uses of a

’ firearm were sufficiently distinct from one another to justify multiple,

consecutive sentences.

16

diately thereafter, the arresting officers discovered the

remainder of his drug stash along with a firearm that he

had stored near the distribution operation. The defen-

dant was also convicted and sentenced on two counts of

using the firearm, one during and in relation to the

possession-with-intent-to-distribute count and the other

during and in relation to the distribution count. The

court set aside the second Section 924(c) conviction on

the ground that the statute “does not clearly manifest an

intention to punish a defendant twice for continuous pos-

session of a firearm in furtherance of simultaneous pred-

icate offenses consisting of virtually the same conduct.”

Id. at 207. That court has since described the principle

of Finley as requiring that “a defendant who commits

two predicate offenses with a single use of a firearm

may only be convicted of a single violation of

§ 924(¢)(1).” United States v. Wallace, 447 F.3d 184, 188

(2d Cir.) (emphasis added), cert. denied, 127 S. Ct. 541

(2006); see United States v. Salameh, 261 F.3d 271, 278

(2d Cir. 2001) (per curiam), cert. denied, 536 U.S. 967,

and 537 U.S. 847 (2002).

Similarly, in United States v. Wilson, 160 F.3d 732,

749 (D.C. Cir. 1998), cert. denied, 528 U.S. 828 (1999),

the court vacated the second of two Section 924(c) con-

victions, where there was “only one firearm and one

use,” in the course of two simultaneous violent felonies

on a single victim, first degree murder and killing a wit-

ness. The court distinguished those facts, where “there

was only one use of the firearm,” from cases involving

“distinct conduct giving rise to multiple crimes.” /bid.

In United States v. Johnson, 25 F.3d 1335, 1336-1338

(6th Cir. 1994) (en banc), the court held that multiple

convictions for violations of Section 924(c) were im-

proper when the defendant used two firearms while “si-

17

- multaneously” possessing two different controlled sub-

stances. /d. at 1336. And, in United States v. Phipps,

319 F.3d 177, 189 (5th Cir. 2003), the court held that

multiple Section 924(c) convictions were unwarranted

when defendants used “a single firearm a single time for

a dual criminal purpose, then immediately discarded it.”

Ibid. It stressed the limited nature of its holding, noting

that the result might have been different if the offenses

were not virtually simultaneous or had involved differ-

ent firearms. /d. at 188-189.

The analysis in those cases does not aid petitioners.

As Chapman acknowledges (06-9398 Pet. 13), his first

Section 924(c) conviction (Count 20) was predicated on

his possession of a Saiga .3U8 caliber rifle and its trans-

fer to a co-conspirator in December 2000. Pet. App. 81a.

The purpose of the pessession and transfer was to fur-

ther the conspiracy to violate the Neutrality Act. /bid.

Chapman’s second Section 924(c) conviction was predi-

cated on the use and discharge of an AK-47 automatic

rifle in September 2001, during his attendance at the

LET camp in Pakistan, which the district court found to

be not only in furtherance of a conspiracy to violate the

Neutrality Act but also in furtherance of a conspiracy to

provide material support to LET. /d. at 82a-83a. Thus,

Chapman’s Section 924(c) offenses plainly did not in-

volve the use of a firearm on a single occasion during the

simuitaneous commission of multiple predicate offenses.

Similarly, the three Section 924(c) counts on which

Khan was convicted and consecutively sentenced in-

volved three different types of firearms—an AK-47 au-

tomatic rifle, a rocket-propelled grenade, and an anti-

aircraft gun—each of which he possessed at different

LET training camps in Pakistan. Pet. App. 82a-83a;

C.A. App. 1033-1034, 1036, 1397-1598, 1400, 1619, 1624.

18

He received instruction involving the use of such fire-

arms, during which he discharged such firearms, over a

period of several weeks in September and October 2001.

Pet. App. 82a-83a; C.A. App. 1397-1400, 1618-1625.

Thus, Khan’s Section 924(c) convictions likewise did not

grow out of the use of a firearm on a single occasion dur-

ing the commission of simultaneous predicate offenses:

he therefore cannot benefit from the reasoning of Finiey

and similar cases. This case, therefore, presents no oc-

casion to resolve any variation among the courts of ap-

peals on this issue.”

b. Petitioners Khan and Chapman further maintain

(06-1116 Pet. 9, 15; 06-9398 Pet. 9, 14) that “the Fourth

Circuit’s refusal to require that each firearm use be tied

to a particular predicate is contrary to the rule in other

circuits.” That claim does not warrant this Court’s re-

view. As discussed above, the majority of the courts of

appeals that have addressed the question have con-

cluded that Section 924(c) requires that each firearm

conviction be predicated on a different predicate crime

of violence or drug trafficking offense. Consistent with

that principle, the court below concluded that separate

* Petitioners also invoke the rule of lenity as a justification for setting

aside their multiple, consecutive Section 924(c) sentences. 06-1116 Pet.

14; 06-9398 Pet. 14. That principle has been applied by some courts of

appeals where a single use of a firearm results in more than one Section

924(c) conviction (see Anderson, 59 F.3d at 1333) or where multiple Sec-

tion 924(¢) counts are based upon the continuing possession of a single

firearm in furtherance of simultaneous predicate offenses consisting of

virtually the same conduct. See Phipps, 319 F.3d at 187-189. The

purported statutory ambiguity that has prompted the application of the

rule of lenity in such situations has never been held to extend to situa-

tions where, as in this case, the Section 924(c) violations involved dif-

ferent firearms with respect to multiple predicate offenses that are not

virtually coterminous with one another.

19

predicate convictions supported each Section 924(c) con-

viction. Pet. App. 18a-20a; see id. at 82a-83a.

Petitioners’ reliance upon Cappas, supra, is mis-

placed. In Cappas, a jury instruction permitted convic-

tion on one of the Section 924(c) counts on the basis of

either a predicate drug conspiracy count or a predicate

extortion count. The drug conspiracy count was also the

predicate offense for a second Section 924(c) conviction.

29 F.3d at 1191. Given the jury instruction, the court

concluded that it was unable to determine whether the

jury based the first Section 924(c) conviction on that

same drug conspiracy. /d. at 1195. See Privette, 947

F.2d at 1262-1263 (holding that, because it could not

determine whether the jury had based two Section

924(c) counts on the same predicate conviction, one Sec-

tion 924(c) conviction must be vacated).

Here, in contrast, the district court was the fact-

finder. The court of appeals thus had no need to parse

the jury instructions to ensure that the factfinder ap-

plied the correct law. With respect to Chapman’s Sec-

tion 924(c) convictions, the district court expressly found

that each conviction was supported by a different predi-

cate offense. Pet. App. 82a-83a. Although the findings

were less explicit for Khan’s Section 924(c) convictions,

the court found that they were during and in relation to

“the predicate conspiracy crimes of violence,” id. at 83a,

and Khan was convicted of sufficient predicate offenses

to separately support each of his Section 924(c) convic-

tions. /d. at 18a-20a. As the court of appeals concluded,

because the district court was the factfinder, it did “not

have to worry that the fact finder did not understand the

law simply because she did not spell it out in detail.” /d.

at 20a n.11.

20

2. a. Petitioners claim (06-1116 Pet. 15-24; 06-9398

Pet. 15-24) that the trial court erred in failing to obtain

written jury-trial waivers signed personally by petition-

ers, as opposed to their counsel, and by failing to inquire

directly of petitioners whether they wished to waive a

jury trial. Rule 23(a) of the Federal Rules of Criminal

Procedure provides that “[i]f the defendant is entitled to

a jury trial, the trial must be by jury unless: (1) the de-

fendant waives a jury trial in writing; (2) the govern-

ment consents; (3) the court approves.” Here, petition-

ers, through counsel, filed written motions to waive the

right to a jury trial, the government concurred in those

requests, and the court approved the motions. Pet. App.

6a; see pp. 7-8, supra.

Even assuming that written motions by counsel do

not comply with the writing requirement of Rule

23(a)(1), see United States v. Robertson, 45 F.3d 1423,

1430-1431 (10th Cir.), cert. denied, 515 U.S. 1108, and

516 U.S. 844 (1995), the courts are in accord that no re-

lief is warranted for failure to comply with Rule 23(a)’s

formal requirements when the circumstances demon-

strate that the defendant was not ignorant of his right to

a jury trial and consented to the waiver. See, ¢.g.,

United States v. Leja, 448 F.3d 86, 93-94 (1st Cir. 2006)

(the absence of a personally-signed waiver or a colloquy

relating to such waiver “does not require reversal where

the evidence establishes that the defendant’s waiver was

knowingly and intelligently made”) (collecting cases);

Robertson, 45 F.3d at 1431 (“strict compliance wit’ ule

23(a) is not justified * * * where the recor. clearly

reflects a defendant’s waiver of the right is voluntary”);

United States v. Garrett, 727 F.2d 1003, 1012 (11th Cir.

1984) (purely technical violations of Rule 23(a) not a ba-

sis for relief if the government demonstrates that, at the

21

time of the waiver, the defendant was not ignorant of his

jury right), aff'd, 471 U.S. 773 (1985); United States v.

Page, 661 F.2d 1080, 1083 (5th Cir. 1981) (where, despite

non-compliance with Rule 23(a), it is apparent from the

record that the defendant intentionally waived his right

to a jury for tactical reasons, “[a defendant] cannot

claim [on appeal] of the manner in which the trial court

carried out his wishes”), cert. denied, 455 U.S. 1018

(1982).

In determining whether the trial record demon-

strates that the waiver of the right to a jury trial was

made knowingly, voluntarily, and intentionally, the

courts consider a variety of factors circumstantially

demonstrating that a waiver was validly given. These

include: the defendant’s education, background, and

intellect (Leja, 448 F.3d at 94; Page, 661 F.2d at 1082);

his presence in court when the trial judge’s comments

make it clear that the trial will be to the bench and the

absence of surprise or objection with respect to such

remarks (e.g., Leja, 448 F.3d at 94; Page, 661 F.2d at

1083); and circumstances demonstrating a considered

and deliberate “tactical decision that a bench trial would

be to [the defendant's] advantage.” Page, 661 F.2d at

1083 & n.d.

In this case, the record demonstrates, by similar cir-

cumstances, that petitioners knowingly and voluntarily

consented to the waiver of their right to a jury trial.

First, as the court below observed (Pet. App. 16a), it is

apparent that petitioners’ written requests for a bench

trial, which were signed by counsel, were the product of

a calculated trial strategy. The request by Chapman

and joined by Hammad was presented as an alternative

to a severance of their trial from that of Khan, against

whom they maintained “inflammatory and prejudicial

22

evidence” would be presented that would be inadmissi-

ble in a trial involving only themselves. /bid. Conse-

quently, as in Page, 661 F.2d at 1083 n.5, “there was

* * * 4 plausible reason for [these petitioners] and the

experienced counsel who then represented [them] to

conclude that a judge might approach the case more

objectively and dispassionately than a jury.”

Further, during a pretrial hearing involving Chap-

man, the district court announced that it had before it

his renewed motion for prejudicial joinder or, in the al-

ternative, a motion to waive a jury. Addressing the mo-

tion, the court further observed that “if [the proceeding}

continues as a jury trial as to Mr. Chapman, | will in-

struct the jury to try to segregate the information.

However, vou do have as the alternative a motion to

waive jury, and | don’t know what the government’s

view ison that * * *. The government has a right to

trial by jury as well as the defendant, and so both sides

have to agree on a waiver.” C.A. App. 224-225 (emphasis

added). The court then explained that, even if the co-

defendants did not waive a jury, as to those who did, it

would decide the question of guilt or innocence. /d. at

226. Chapman never suggested that he did not person-

“ Khan's written motion sought to join Chapman's motion for a bench

trial. C.A. App. 281. Chapman's motion averred that trial to the court

would “afford the accused with the opportunity to receive a fair trial.”

Id. at 221. It therefore appears that Khan also sought a bench trial for

tactical reasons—avoidance of a trial by a jury which was not as likely

Lo possess the same measure of objectivity as the court. Khan now sug-

gests (06-1116 Pet. 25) that either the government or his co-defendants

may have coerced him into waiving a jury and that, consequently. the

district court should have conducted a separate inquiry to ensure that

his waiver of a jury trial was truly voluntary. Khan has, however, failed

to claim coercion, present evidence supporting such a claim, or other-

wise demonstrate a particularized need for such an inquiry.

23

ally participate in the motion to waive a jury or that a

bench trial, in which the court would return the verdict,

was not in accordance with his wishes.

During a second pretrial hearing, in which all three

petitioners and their attorneys participated, the court

observed that, because the proceeding would be without

a jury, counsel would no longer need to prepare jury

questionnaires and would therefore have additional time

to prepare for trial. C.A. App. 307. Thereafter, when

the trial commenced, the court repeatedly stated that

the proceeding would be a bench trial. See id. at 311-

312, 314. Despite petitioners’ presence on these occa-

sions, none indicated that such proceedings were not in

accord with their wishes. Cf. Leja, 448 F.3d at 94-Y5

(noting defendant’s presence and lack of disagreement

when, at the start of the trial, the court reiterated that

the parties had waived a jury); Page, 661 F.2d at 1082

(noting that defendant, “a highly educated and articulate

man, * * * inno manner exhibit|ed] objection or sur-

prise as his counsel waive|d] jury trial”).

Petitioners, who were all American-born and native

English speakers, were well educated and fully capable

of comprehending the trial judge’s courtroom references

to the absence of a jury and to the fact that the proceed-

ing would be a bench trial.'” Thus, the court of appeals

properly concluded that the record sufficiently reflected

that their waiver of a jury was knowing, intelligent, and

voluntary.

Chapman held a bachelor’s degree in Criminal Justice, had taken

a course in criminal litigation, and had worked for the Virginia State

Police. C.A. App. 258-260. Hammad excelled in junior college, and ob-

tained an associate's degree. /d. at 2288, 2242, 2245. Khan, the son of

a physies professor and a legal secretary, had also attended a commu-

nity college. /d. at 2122-2123, 3525.

24

Indeed, to the extent that petitioners, with counsel,

made a deliberate tactical decision to waive a jury in

favor of a bench trial and asked the judge for that proce-

dure, they invited any error and cannot complain of the

procedure on appeal. See Page, 661 F.2d at 1083; see

Garrett, 727 F.2d at 1012-1013. In this case, neither

petitioners nor their counsel objected to a bench trial

and petitioners expressed no surprise at such a proceed-

ing. Significantly, petitioners do not claim that they

were ignorant of their right to a trial by jury or that, if

properly advised, {hey would have elected a jury trial.

At the very least, the failure of petitioners to object to a

bench trial at any point in the district court subjects

their claim to review only for plain error. Fed. R. Crim.

P. 52(b); Johnson v. United States, 520 U.S. 461, 466

(1997) (all claims raised for the first time on appellate

review are subject to the plain error rule); see United

States v. Vonn, 535 U.S. 55, 73 (2002) (plain error rule

applies to failure to object to deficient guilty plea collo-

quy under Federal Rule of Criminal Procedure 11). Pe-

titioners have made no effort to meet that standard and,

in any event, cannot show that it seriously affects the

fairness, integrity, and public reputation of judicial pro-

ceedings (as is required to show reversible plain error)

for a judge to grant a jury-trial waiver that petitioners

requested for strategic reasons."

" Petitioners also maintain that this Court should grant review to

direct district courts to conduct a colloquy with the defendant in each

case to ensure that he understands his right to a jury trial and is volun-

tarily and knowingly waiving that right. See 06-1116 Pet. 19-20. That

claim does not warrant this Court's review. Neither the Constitution

nor Rule 23(a) contains a requirement that, when a jury waiver is

proffered, the district court must conduet such a colloquy. See, ¢.¢.,

Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993). Some courts of

25

b. Petitioners’ contention (06-1116 Pet. 17-19; 06-

9398 Pet. 16-18) that the decision below conflicts with

that of the Tenth Circuit in Robertson is incorrect. The

holding in that case—that the absence of a written jury

waiver signed by the defendant “is not necessarily fatal

to the validity of that waiver” (45 F.3d at 1433)—is not

materially different from the holding of the court below

and the decisions of the other courts of appeals that

have addressed the issue. Instead, reversal of the con-

viction in Robertson was based on the particular facts in

that case, i.e., that, where the district court not only

failed to inquire concerning the defendant’s decision as

to the circumstances surrounding the waiver, but also

never discussed, in the defendant’s presence, the deci-

sion to waive the right to a jury, “there is nothing in the

record * * * indicating [the defendant] personaliy un-

derstood her right and knowingly waived it.” Jbid.

Here, in contrast, the court below concluded that “the

record reflects that [petitioners’} Rule 23 waivers were

appeals (including the Fourth Circuit) have adopted such a colloquy

requirement under their supervisory power or have suggested conduct-

ing such colloquies as a matter of prudence. See e¢.g., Leja, 448 F.3d at

93 (collecting cases); Marone, 10 F.3d at 67 (“suggest[ing] the district

courts inform each defendant, on the record, of the fundamental

attributes of a jury trial before aceepting a waiver”); United States v.

Cochran, 770 F.2d 850, 852-8 (9th Cir. 1985) (“implor|ing]” district

courts to conduct jury waiver collequies but declining to adopt a

mandatory supervisory rule regaining them); United States v. Hunt,

413 F.2d 983, 984 (4th Cir. 19%) “per curiam). Indeed, the court here

reiterated that such colloquies “would be ‘better practice.” Pet. App.

15a (quoting Hunt, 413 F 2d at 984). But even courts of appeals that

have adopted a supervisory rule requiring district courts te conduct

waiver colloquies do not reverse convictions for failure to do so when

the waiver is otherwise shown to he valid. See United States v. Bishop,

291 F.3d 1100, 1113-1114 (9th Cir. 2002), cert. denied, 5387 U.S. 1176

(2003); United States v. Rodriguez, 888 F.2d 519, 527 (7th Cir. 1989).

26

a knowing, voluntary, and intelligent part of their trial

strategy.” Pet. App. 16a. Such factbound distinctions

do not merit this Court’s review."*

3. Petitioners maintain (06-1116 Pet. 26-29; 06-9398

Pet. 24-27) that the district court erred in failing to or-

der discovery concerning their claims that their indict-

ments for violations involving the Neutrality Act, 18

U.S.C. 960 (Counts 7-10), constituted impermissible se-

lective prosecution. In the first place, petitioners were

not convicted on the substantive Neutrality Act counts

(Pet. App. 70a-71a, 78a, 83a). Although one of the con-

spiracy counts on which they were convicted (Count 1)

included a Neutrality Act violation as an object offense

(in which both Chapman and Hammad were found to be

implicated), that count also included other object of-

fenses, including conspiracy to provide material support

to a terrorist group (LET) knowing and intending that

the support was to be used to carry out crimes of vio-

'* Chapman and Hammad further maintzin (06-9398 Pet. 22) that

their election to proceed without a jury was the product of an impermis-

sible “Hobson’s choice * * * between a biased jury and a fair judge.”

But instead of conducting a voir dire examination of the venire to

determine whether a jury could segregate the evidence, and independ-

ently and impartially assess the culpability of each defendant, these

petitioners decided to forgo such an examination in favor of opting for

a bench trial. Under such circumstances, a “purely subjective fear of

inability to select an impartial jury, manifested by jthe defendant's]

waiver of a jury trial before even attempting voir dire, does not make

[the defendant’s| waiver involuntary in a constitutional sense.” Johnson

v. Nix, 763 F.2d 344, 348 (8th Cir. 1985). Defendants frequently must

choose between options, even when electing one of the options may

entail submitting to a factfinder believed to lack impartiality (with a

consequent ability to raise such a claim on appeal). L'vited States v.

Martinez-Salazar, 528 U.S. 304, 315 (2000). - Nothing would have

foreclosed petitioners from going to trial before a jury, thereby pre-

serving any claim they believed they had that a jury would be biased.

at

lence (Count 5), on which they were all convicted and

which is not subject to a similar challenge. Thus, the

question whether petitioners were prejudiced by the

district court’s failure to order discovery concerning

selective prosecution with respect to the Neutrality Act

is of limited significance.’ In any event, the claim was

properly rejected by the court of appeals and that fact-

bound determination does not warrant this Court’s re-

view.

“The Attorney General and United States Attorneys

retain ‘broad discretion’ to enforce the nation’s criminal

laws.” United States v. Armstrong, 517 U.S. 456, 464

(1996) (quoting Wayte v. United States, 470 U.S. 598,

607 (1985)). “‘The presumption of regularity supports’

their prosecutorial decisions and, ‘in the absence of clear

evidence to the contrary, courts presume that they have

properly discharged their official duties.’” /bid. (quot-

ing United States v. Chemical Found., Inc., 272 U.S. 1,

14-15 (1926)); see Reno v. American-Arab Anti-Dis-

crimination Comm., 525 U.S. 471, 489 (1999) (“Because

[selective prosecution] claims invade a special province

of the Executive * * * we have emphasized that the

standard for proving them is particularly demanding,

requiring a criminal defendant to introduce ‘clear evi-

dence’ displacing the presumption that the prosecutor

has acted lawfully.”) (quoting Armstrong, 517 U.S. at

465). Thus, “so long as the prosecutor has probable

'* The district court, however, predicated ene of petitioner Chapman's

Section 924(¢) convictions on his conspiracy canvietion (Count 1) insofar

as it embraced a conspiracy to violate the Neutrality Act. Pet. App. 81a.

That conspiracy count also constituted a basis (albeit unnecessary) for

one of Khan's Section 924(c) convictions, but the district court deter-

mined that his participation in the conspiracy did not include the

Neutrality Act. Jd. at 70a-71a.

28

cause to believe that the accused committed an offense

defined by statute, the decision whether or not to prose-

cute, and what charge to file or bring before a grand

jury generally rests entirely in his discretion.” Borden-

kircher v. Hayes, 434 U.S. 357, 364 (1978).

Nonetheless, “‘[s]electivity in the enforcement of

criminal laws is . . . subject to constitutiona! con-

straints.’ In particular, the decision to prosecute may

not be ‘deliberately based upon an unjustifiable stan-

dard such as race, religion, or other arbitrary classifica-

tion,’ including the exercise of protected statutory and

constitutional rights.” Wayte, 470 U.S. at 607-608 (quot-

ing United States v. Batchelder, 442 U.S. 114, 125

(1979), and Hayes, 434 U.S. at 364); see Oyler v. Boles,

368 U.S. 448, 456 (1962). As a consequence, to establish

a claim alleging impermissible selective prosecution,

“(t]he claimant must demonstrate that the federal prose-

cutorial policy ‘had a discriminatory effect and that it

was motivated by a discriminatory purpose.’” Arn-

strong, 517 U.S. at 465 (quoting Wayte, 470 U.S. at 608).

Because a demand for discovery to support a selec-

tive prosecution claim “imposes many of the costs pres-

ent when the Government must respond to a prima facie

case of selective prosecution” (Armstrong, 517 U.S. at

468), “the showing necessary to obtain discovery should

itself be a significant barrier to the litigation of insub-

stantial claims.” /d. at 464. In particular, “{t|he Courts

of Appeals ‘require some evidence tending to show the

existence of the essential] elements of the defense,’ dis-

criminatory effect and discriminatory intent.” /d. at 468

(quoting L/nited States v. Berrios, 501 F.2d 1207, 1211

(2d Cir. 1974)). As to the element of “discriminatory

effect,” the courts require the production of “some evi-

dence that similarly situated defendants * * * could

29

have been prosecuted but were not, * * * [a] require-

ment * * * consistent with [the Court’s] equal protec-

tion case law.” /d. at 469 (collecting cases).

Petitioners identify two groups, the CFF and the

IRA, as “similarly situated” to them by virtue of the fact

that their members also traveled from the United States

to foreign nations for the specific purpose of engaging in

armed conflict with a friendly government. Neither

group, however, was “similarly situated” to LET, with

which petitioners aligned themselves, because neither

was in direct conflict with the United States. Shortly

after the September 11, 2001, terrorist attack on the

United States, LIST proclaimed that, if the United

States attacked Afghanistan, its members would “not

leave |their] Afghanistan brethren in the lurch [but

would} sacrifice their lives along with other Muslims

against America and other disbelievers.” C.A. App.

L867. On October 7, 2001, LET proclaimed that America

had launched a war against Islam as part of a plan to

massacre all Muslims in the world, and shortly thereaf-

ter, it called on the Muslim world to support the Taliban

against the Americans. /d. at 1867-1869. Petitioners

presented no similar evidence on the part of either CFF

or the IRA of overt hostility against the United States

or expressions of intent to support other terrorist

groups in undertaking military action against it.'' Thus,

'' Furthermore, petitioners err in their assertion that members of

CFF have not been the subject of Neutrality Act prosecutions for their

activities. Yasith Chhun, the President of that group, who petitioners

have identified as a similarly situated but not charged person (C.A.

App. 3235), has been charged in the Central District of California with

a Violation of the Neutrality Act and related offenses. See United

States v. Chhiun, No. 2:05-cr-00519-DDP-ALL (C.D. Cal. filed May

31, 2005); Press Release, U.S. Att'y C.D. Calif., DOJ, President of

30

as the court below observed (Pet. App. 26a), because

LET presented a direct threat to the United States and

its interests, it was a perfectly proper exercise “of the

Government’s enforcement priorities” (Armstrong, 517

U.S. at 465), to charge petitioners with supporting it.

CONCLUSION

The petitions for a writ of certiorari should be de-

nied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

KENNETH L. WAINSTEIN

Assistant Attorney General

JOHN F. DEPUE

Attorney

APRIL 2007

Cambodian Freedom Fighters Arrested in Alleged Plot to Overthrow

Cambodian Government (June 1, 2005) <http://www.usdoj.gov/usao/

cac/news/pr2005/079. html >.