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D.C. Circuit Upholds Narcoterrorism Conviction in United States v. Mohammed

Alan Z. Rozenshtein
Wednesday, September 5, 2012, 10:40 AM
Yesterday the D.C. Circuit issued its decision in United States v.

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Yesterday the D.C. Circuit issued its decision in United States v. Mohammed, in which the defendant, Afghan citizen Khan Mohammed, appealed his conviction on narcoterrorism charges stemming from his involvement in a plot to attack a NATO base in Afghanistan. Of particular relevance to Lawfare readers is the court's broad interpretation of 21 U.S.C. § 960a, which criminalizes drug trafficking that financially benefits terrorists. Judge Thomas Griffith wrote the panel opinion, joined by Judge David Sentelle. Judge Brett Kavanaugh wrote a brief concurrence. In 2006, Khan Mohammed was living in Afghanistan and was helping former Taliban official Abdul Rahman with a plot to attack NATO's Jalalabad airfield in eastern Afghanistan. Rahman sent another Afghan, a man named Jaweed, to help Mohammed with the plot. Jaweed soon reversed his allegiances and reported the plot to Afghan authorities, who in turn handed the case over to the U.S. Drug Enforcement Agency (DEA). The DEA used Jaweed as a paid informant and initially planned on arresting Mohammed after supplying him missiles through Jaweed. But the DEA became concerned about tracking the missiles once Mohammed had them, and instead decided to arrest Mohammed on drug charges. The DEA directed Jaweed to ask Mohammed to supply opium and heroin for export to the United States, which Mohammed did. In October 2006, the DEA and Afghan police arrested Mohammed. The DEA read Mohammed a translated version of his Miranda rights, and Mohammed verbally waived them. DEA agents interrogated Mohammed and transferred him to the United States to stand trial on drug charges. In the spring of 2008, Mohammed was tried and convicted of international drug trafficking under 21 U.S.C. § 959(a)(1), (2) and drug trafficking with intent to provide financial support to a terrorist (narcoterrorism) under 21 U.S.C. § 960a --- in this case, to himself. Mohammed was sentenced to two concurrent life sentences. He appealed his conviction and sentence on the narcoterrorism charge. The court first rejected Mohammed's argument that his statements made during his interrogation by the DEA were inadmissible because his Miranda waiver was invalid. Leaving unaddressed the question of whether Miranda  applies to aliens overseas, the court held that, even if the waiver was invalid, the district court committed only harmless error in admitting the statements because the government did not use them at trial. The court second rejected Mohammed's argument that the evidence at trial could not sustain the narcoterrorism conviction. Section 960a "criminalizes conducts abroad that would violate domestic drug laws if 'committed within the jurisdiction of the United States' when the actor 'know[s] or intend[s] to provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity . . . or terrorism'" (alterations in the original). Mohammed conceded that he himself met § 960a's requirement for being a terrorist and that he knew that the profits from the drug sale would financially benefit him. He argued, however, that § 960a further requires a "drug-terror nexus," under which "it is not enough that Mohammed committed a drug offense with intent to provide pecuniary value to a terrorist or terrorist organization; the government must also show he knew that the money would support terrorist acts." In rejecting Mohammed's argument, the court focused on the plain meaning of the statute, which did not impose any such additional requirement. It further rejected Mohammed's argument that a broad reading of the statute would lead to absurd conclusions, such as criminal liability for someone who uses drug proceeds to pay a ransom to terrorists engaging in kidnapping:
[F]inding § 960a absurd based on this possibility would have broad implications for criminal law writ large. We can imagine similar problems for any sympathetic defendant forced by his circumstances to break the law. The criminal justice system deals with such unusual fact patterns through prosecutorial discretion and traditional defenses such as the duress defense, but not by rewriting criminal statutes that are uncontroversial in the overwhelming majority of their applications.
In addition, the court held that the § 960a could permissibly be read as applying to individuals who engaged in terrorist activities in the past, even if they no longer engaged in terrorism. The court third rejected Mohammed's argument that the district court had improperly applied a twelve-point sentencing enhancement. The enhancement, found in § 3A1.4(a) of the Sentencing Guidelines, was based on the court's finding that the narcoterrorism crime "involved, or was intended to promote, a federal crime of terrorism." "Federal crime of terrorism" is defined in 18 U.S.C. § 2332b(g)(5) as a violation of certain listed statutes, including § 960a, that is "calculated to influence or affect the conduct of government by intimidation of coercion, or to retaliate against government conduct." Mohammed argued that his § 960a offense was only a "federal crime of terrorism" if he specifically intended to finance terrorism, and that the jury had not been ruled on that issue. In rejecting this argument, the court found that the district court had enough evidence to infer Mohammed's terrorist intent, including Mohammed's statements that the smuggled drugs would harm the United States as well as his intent to purchase a car with the drug proceeds which could then be used to commit terrorist acts. Although the court recognized that the district court's inferences were subject to dispute, they were not "clearly wrong" and so were due deference. Finally, the court turned to Mohammed's argument that his trial counsel was ineffective because counsel "failed to adequately explore the possibility that evidence was available that would have significantly strengthened Mohammed's defense." In a heavily redacted section of the court's opinion, it rejected the government's argument that the district court record was sufficiently developed to determine whether Mohammed's trial counsel had been ineffective. The court thus remanded back to the district court to evaluate Mohammed's ineffective-assistance-of-counsel claim. Judge Brett Kavanaugh wrote a brief concurrence, agreeing with the majority's judgment and opinion except as to its discussion regarding Mohammed's ineffective-assistance-of-counsel claim. Because such claims should in the first instance be addressed and examined by the district court, Judge Kavanaugh would have remanded to the district court without addressing the merits of Mohammed's claim, as the majority had done.

Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School, a senior editor at Lawfare, and a term member of the Council on Foreign Relations. Previously, he served as an Attorney Advisor with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland.

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