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United States v. Elshinawy

United States District Court, D. Maryland

March 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MOHAMED Y. ELSHINAWY, Defendant.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge.

         Defendant Mohamed Y. Elshinawy is a United States citizen of Egyptian descent, born in 1985. Although defendant spent much of his life in Egypt and Saudi Arabia, he began to travel frequently between Egypt and the United States, beginning in or about 2007. On December 11, 2015, defendant was arrested in the State of Maryland, where he then resided. ECF 6. About a month later, on January 13, 2016, he was indicted on charges that included conspiracy to provide and providing material support to ISIS, a designated foreign terrorist organization (“FTO”). ECF 19. Elshinawy entered a plea of guilty to all charges on August 15, 2017, and is awaiting sentencing.

         This Memorandum Opinion resolves several issues pertinent to sentencing. Most significantly, it addresses (1) whether Elshinawy is subject to a 12-level terrorism enhancement under Section 3A1.4 of the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”), and (2) whether the defendant beached his proffer agreement with the government. I shall also briefly consider other potentially applicable sections of the Guidelines.

         For the reasons that follow, I conclude that the defendant is subject to the terrorism enhancement. I reach that conclusion without relying on any information provided by the defendant during his proffer session with the government on August 2, 2017. Nevertheless, I am satisfied that the defendant has breached his proffer agreement.

         I. Procedural Background

         On October 15, 2004, the United States Secretary of State designated al-Qa'ida in Iraq as a FTO. ECF 120 at 9. In May 2014 and September 2015, the Secretary of State amended the designation to add various aliases, including the Islamic State of Iraq and the Levant (“ISIL”); the Islamic State of Iraq and al-Sham (“ISIS”); the Islamic State of Iraq and Syria (“ISIS”); and Daesh, among other names.

         The Indictment (ECF 19) contains four counts, as follows: conspiracy to provide material support or resources to ISIS, a designated FTO, i.e., personnel (including the defendant himself), services (including means and methods of communication), and financial services, in violation of 18 U.S.C. § 2339B(a)(1) and §§ 2339B(d)(1)(A), (D), (E), and (F) (Count One); providing and attempting to provide material support to ISIS, in the form of personnel (including the defendant), services (including means and methods of communication, and financial services, in violation of 18 U.S.C. § 2339B(a)(1) and §§ 2339B(d)(1)(A), (D), (E) and (F) (Count Two); unlawful financing of terrorism, in violation of 18 U.S.C. §§ 2339C(a)(1)(B), 2339C(a)(3) (Count Three); and willfully making materially false statements and representations to agents of the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a)(2) (Count Four). Id. The Indictment refers, inter alia, to Individual #1, who has since been identified as Tamer Elkhodary (“Elkhodary”), an Egyptian national who resides overseas. He is also defendant's childhood friend and a member of ISIS.

         On August 15, 2017, the defendant entered a plea of guilty to all four counts of the Indictment (ECF 119). The defendant's Plea Agreement (ECF 120) exposes the defendant to a maximum sentence of 68 years of incarceration. Id. ¶ 3. Of import here, the terms of the Plea Agreement leave open the critical question of whether the defendant is subject to the twelve-level terrorism enhancement under U.S.S.G. § 3A1.4.

         Counsel on both sides have devoted considerable time and effort to the issue of the terrorism enhancement, as well as to other issues relevant to sentencing under 18 U.S.C. § 3553(a), as evidenced by their voluminous and comprehensive submissions. Elshinawy's initial sentencing memorandum is docketed at ECF 138, supported by numerous exhibits. The government's initial sentencing memorandum is docketed at ECF 139, also with multiple exhibits. Defendant's reply is at ECF 143, with exhibits, and the government's reply is at ECF 145, with exhibits. Additional government exhibits are docketed at ECF 202 and ECF 208. Further, the government submitted a video that it claims is relevant under 18 U.S.C. § 3553(a) (ECF 219), as well as a copy of its PowerPoint presentation, used at a sentencing hearing. ECF 231. By my calculation, the parties' submissions well exceed 2, 500 pages.

         During the pendency of sentencing proceedings, several disputes arose between the parties. To start, on November 29, 2017, shortly before the Court was to hold the first sentencing hearing, the government claimed that the defendant breached his proffer agreement of July 14, 2017. See ECF 148 (government's letter of November 29, 2017); ECF 172-2 (proffer agreement). At its core, the basis of the claim rests on certain representations, assertions, and contentions contained in the sentencing memoranda submitted by defense counsel, which the government contends are materially different from the defendant's statements made during his proffer on August 2, 2017. Therefore, the government argues that it is entitled to introduce relevant portions of defendant's proffer. The defense vigorously disputes the claim of breach.[1]

         The matter concerning the proffer is tantamount to a case within a case, as the parties' flurry of submissions reflects. With regard to the proffer, the government's submissions include the following: ECF 148; ECF 155; ECF 164; ECF 172; ECF 195; ECF 204; ECF 215; and ECF 218. The defendant's submissions are docketed at ECF 151; ECF 179; ECF 187; ECF 199; ECF 210; and ECF 230.

         The parties also vigorously disputed the admissibility of the opinion testimony of defendant's expert, Marc Sageman, M.D., Ph.D. On October 19, 2017, the government filed a motion to strike Dr. Sageman's testimony (ECF 125), which the defense opposed. ECF 152. See also ECF 155 and ECF 157. At the hearing on December 4, 2017, I orally denied the government's motion to bar the testimony of Dr. Sageman, for the reasons that I set forth on the record. He was received as a defense expert in terrorism, counter-terrorism, and psychiatry. See ECF 192 (Tr. of December 4, 2017), at 40-43.

         Then, on December 8, 2017, the government disclosed that it had just learned the surprising news that on November 28, 2017, FBI agents involved in this case submitted to an on-the-record interview with two Associated Press reporters. ECF 181. Once a transcript of the interview was obtained, it was produced to the defense. Elshinawy suggests that the FBI agents' comments during the interview support his view that he is not subject to the terrorism enhancement because he “was not operational, ” had “no ties to any other ISIS members in the United States, ” and even the FBI did not believe the defendant was planning an attack. See ECF 199 at 3-5.

         On December 4, 2017, December 5, 2017, February 12, 2018, and February 16, 2018, the court held sentencing hearings, at which both evidence and argument were presented. The parties also submitted proposed sentencing findings of fact and conclusions of law on February 13, 2018. See ECF 223 (defendant); ECF 225 (government).

         Despite defense counsel's valiant effort on behalf of the defendant, they cannot turn the proverbial sow's ear into a silk purse.[2] Without regard to use of the proffer material, and for the reasons stated below, I conclude that the evidence readily demonstrates that the terrorism enhancement applies here.

         II. The Terrorism Enhancement

         The terrorism enhancement under U.S.S.G. § 3A1.4 is “steep.” United States v. Fidse, 778 F.3d 477, 481 (5th Cir. 2015) (“Fidse I”). Section 3A1.4 provides that if the offense of conviction “is a felony that involves, or was intended to promote a federal crime of terrorism, ” the resulting offense level is increased by 12 levels, and the defendant's actual criminal history category automatically becomes a category VI, regardless of the defendant's criminal history. U.S.S.G. § 3A1.4(a), (b). If, after the increase of 12 levels, the resulting offense level is less than 32, the court must increase the offense level to 32. U.S.S.G. § 3A1.4(a).

         A “federal crime of terrorism” is a “key term.” United States v. Chandia, 514 F.3d 365, 375 (4th Cir. 2008) (“Chandia I”). Under Application Note 1 to U.S.S.G. § 3A1.4, the term “‘federal crime of terrorism' has the meaning given that term in 18 U.S.C. § 2332b(g)(5).” A federal crime of terrorism under § 2332b(g)(5) consists of two components. First, the offense must constitute a violation of one or more enumerated felonies. The specified felonies include three of the offenses to which the defendant has pleaded guilty: 18 U.S.C. § 2339B (Material Support of Terrorism, as charged in counts One and Two) and 18 U.S.C. § 2339C (Unlawful Financing of Terrorism, as charged in Count Three). Second, there is a “specific intent requirement, ” which means that the offense must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” See §§ 2332b(g)(5)(A), (B); see also Chandia I, 514 F.3d at 375-76.

         Notably, the government bears the burden of proof. But, it need only prove the application of § 3A1.4 by a preponderance of the evidence. United States v. Fidse, 862 F.3d 516, 523 (5th Cir. 2017) (“Fidse II”); United States v. Wright, 747 F.3d 399, 407 (6th Cir. 2014); United States v. Chandia, 675 F.3d 329, 339-40 (4th Cir. 2012) (“Chandia III”); United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008).

         In applying § 3A1.4, a district court must identify the particular federal crime of terrorism that the defendant intended to promote; assure satisfaction of the elements of § 2332b(g)(5)(A); and support its conclusions with reference to facts from the record. United States v. Graham, 275 F.3d 490, 517 (6th Cir. 2001). The Court explained in United States v. Hassan, 742 F.3d 104, 148 (4th Cir. 2014) (quoting Chandia I, 514 F.3d at 376): “[A] court deciding whether to impose the terrorism enhancement must ‘resolve any factual disputes that it deems relevant to application of the enhancement, ' and then, if it finds the requisite intent, ‘should identify the evidence in the record that supports its determination.'” See also Chandia III, 675 F.3d at 331; United States v. Chandia, 395 F. App'x 53, 56 (4th Cir. 2010) (“Chandia II”).

         Both sides seem to agree that the convictions in counts One, Two, and Three constitute felonies enumerated by the applicable statute. ECF 223 at 2; ECF 225 at 1-2. But, the parties vehemently disagree as to whether the government has satisfied the specific intent requirement, i.e., that the crimes were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C.§ 2332b(g)(5)(A).

         The false statement charge in Count Four is not an enumerated felony in § 2332b(g)(5). However, Application Note 2 to U.S.S.G. § 3A1.4 provides, in part, that “obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that federal crime of terrorism.” This is not a case involving an actual terrorist act, which would, “standing alone, support application of the terrorism enhancement” based on “an automatic inference of the required intent.” Chandia I, 514 F.3d at 376. However, “the terrorism enhancement can be applied to inchoate offenses, such as attempt and conspiracy.” Wright, 747 F.3d at 407. This is “consistent with the text of § 3A1.4(a), which extends the enhancement to felonies ‘that involved or [were] intended to promote a federal crime of terrorism' . . . .” Id. (bracket and italics in Wright; citation omitted). Thus, even if a terrorist act was only contemplated, rather than executed, this may give rise to an inference of the requisite intent under § 3A1.4. See Chandia I, 514 F.3d at 376.

         As indicated, Elshinawy is charged with conspiracy to provide material support, as well as substantive offenses. And, in United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), which involved federal crimes of terrorism, the Court said, in regard to sentencing, that “unrealized harm” is not a basis to deviate from the Guidelines, because it would be tantamount to “requir[ing] an act of completion for an offense that clearly contemplates incomplete conduct.” Id. at 264. The Court added: “By definition, conspiracy offenses do not require that all objects of the conspiracy be accomplished.” Id.[3]

         In order to apply the enhancement, however, there must be evidence in the record that establishes that the defendant “intended to advance [a terrorist] purpose in providing material support . . . .” Chandia III, 675 F.3d at 340. However, the claimed personal motive for the offense is “simply not relevant” to the intent inquiry. United States v. Jayyousi, 657 F.3d 1085, 1115 (11th Cir. 2011) (quoting United States v. Awan, 607 F.3d 306, 317 (2nd Cir. 2010)). Nor must the government prove that the defendant had the means or ability to implement his plans. United States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004). Rather, “it is the defendant's purpose that is relevant, and if that purpose is to promote a terrorism crime, the enhancement is triggered.” Id. But, influencing or affecting government need not be the defendant's “ultimate or sole aim.” Wright, 747 F.3d at 408; see Jayyousi, 657 F.3d at 1114-15; Awan, 607 F.3d at 317. And, of import here, specific intent may be found without direct evidence of the defendant's state of mind. Wright, 747 F.3d at 408; United States v. Dye, 538 F. App'x 654, 666 (6th Cir. 2013).

         The rules of statutory construction apply when interpreting the Guidelines. United States v. Ashford, 718 F.3d 377, 382 (4th Cir. 2013). Thus, the terms in the Guidelines are generally accorded their ordinary and common meanings. Awan, 607 F.3d at 313; United States v. Stewart, 590 F.3d 93, 137 (2d Cir. 2009).

         A defendant's offense “involves” a federal crime of terrorism “when his offense includes such a crime, i.e., the defendant committed, attempted, or conspired to commit a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5) . . . .” Awan, 607 F.3d at 313. With regard to the phrase “intended to promote, ” it must be construed “to avoid redundancy” with the word “involves.” Id. at 314. Applying the ordinary meaning of the phrase, an offense is “intended to promote” a federal crime of terrorism when it is “intended to help bring about, encourage, or contribute to” such a crime. Id.; see also Mandhai, 375 F.3d at 1248.

         As to the phrase “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” in 18 U.S.C. § 2332b(g)(5)(A), the “standard” for the enhancement focuses on the offense, asking “‘whether it was calculated, i.e., planned-for whatever reason or motive-to achieve the stated object.'” United States v. Ali, 799 F.3d 1008, 1031 (8th Cir. 2015) (citations omitted); see United States v. Mohamed, 757 F.3d 757, 760 (8th Cir. 2014). Further, “‘[c]alculation is concerned with the object that the actor seeks to achieve through planning or contrivance.'” Ali, 799 F.3d at 1031 (citations omitted).

         In United States v. Siddiqui, 699 F.3d 690 (2nd Cir. 2012), the Second Circuit explained: “Many courts . . . interpret ‘calculated' as nearly synonymous with intentional.” Id. at 709. For that proposition, the court cited, inter alia, Chandia III, 675 F.3d at 333 n.3. The Siddiqui Court said, 699 F.3d at 709: “Thus, ‘if a defendant's purpose in committing an offense is to influence or affect the conduct of government by intimidation or coercion, . . . application of the terrorism enhancement is warranted.'” (Emphasis in Siddiqui; citations and some quotation marks omitted). And, the court rejected the defense's argument that “long-term planning” is a requirement for the enhancement. Id. Rather, the court made clear that “the terrorism enhancement is applicable where a defendant acts according to a plan-whether developed over a long period of time or developed in a span of seconds-with the object of influencing government conduct or retaliating . . . .” Id.

         The Chandia trilogy is particularly illuminating. There, the defendant was convicted of conspiring to provide and providing material support to a FTO, in violation of 18 U.S.C. §§ 2339A and 2339B. The material support of the defendant included that he went to the airport to pick up an official of Lashkar-e-Taiba (“LET”), a FTO; gave him access to a computer; and helped with the shipment of materials to Pakistan for use by LET. Chandia I, 514 F.3d at 370. The defendant had also travelled to Pakistan to attend military training camps operated by LET. See Chandia III, 675 F.3d at 332. The district court applied the terrorism enhancement, without explanation. Chandia I, 514 F.3d at 376.

         In the first appeal, the Fourth Circuit remanded because “the district court did not make any factual findings related to the intent element. Id. Instead, [the district court] appeared to assume (erroneously) that the enhancement automatically applies to a material support conviction.” Id. On remand, the district court again applied the enhancement, noting that the defendant “‘clearly knew' of LET's [terrorist] purpose and ‘was clearly involved in assisting it.'” Chandia II, 395 F. App'x at 59. The defendant appealed again, and the Fourth Circuit again remanded, observing that “facts that the district court relied upon essentially restate the facts underlying [the defendant's] material support conviction, without explaining how these facts speak to [the defendant's] motive for providing the support.” Id. at 60.

         At the third sentencing, the trial court found that the evidence showed, inter alia, that 1) the defendant knew that LET engaged in acts of terrorism, as evidenced by emails he received, his research, and websites he visited; and 2) he knew the individual to whom he provided support was a leader of the FTO, as evidenced by testimony of what the defendant witnessed in Lahore, Pakistan and his efforts to conceal his communications with the FTO's leader by use of encrypted messaging. Chandia III, 675 F.3d at 336-37. The district court concluded that the defendant's “actions here and his support, intended to influence or affect government conduct by intimidation or coercion or to retaliate against government conduct.” Id. at 337.

         On appeal for the third time, the Fourth Circuit upheld the application of the enhancement, finding that “the court did not repeat the mistake of relying solely on [the defendant's] knowledge of LET's terrorist purpose; it reasonably inferred by a preponderance of the evidence that [the defendant] intended to advance that purpose in providing material support to [the LET official].” Id. at 340.

         Thereafter, in Hassan, 742 F.3d 104, the Fourth Circuit again considered whether, under 18 U.S.C. § 2332b(g)(5), certain conduct was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” It concluded that the district judge properly found that the three defendants all possessed the requisite intent. Id. at 149. In this regard, the trial judge's findings are informative.

         As to defendant Hassan, the trial judge's finding was based on evidence such as Hassan's desire to wage “violent jihad”; he “‘became part of a loose group with conspirators whose goal was to kill non-Muslims' . . . .”; the defendant played a “role in advancing ‘jihadist propaganda' . . . .”; he tried “‘to offer himself as a fighter'”; and he traveled to the Middle East. Id. at 149. As to defendant Yaghi, the court found specific intent because, inter alia, the defendant “initiated a corrupt relationship” with an individual he “‘sought out'” at an Islamic Center in order “‘to learn more about traveling abroad to commit violent jihad.'” Id. Further, the trial court relied on the defendant's travels to the Middle East and his postings on Facebook as evidence of intent to commit jihad. Id. In the trial court's words, the defendant “had gone ‘beyond words to actions' . . . .” Id. at 150. And, of particular relevance here, as to defendant Sherifi the court noted, inter alia, that he received $15, 000 to support the mujahideen. Id.

         United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en banc), vacated on other grounds, 543 U.S. 1097 (2005), reinstated, 405 F.3d 1034 (4th Cir. 2005), also provides guidance. There, the defendant was convicted, inter alia, of providing material support to Hizballah, a FTO. The Court determined that the intent prong of § 3A1.4 was satisfied based on evidence that the defendant donated $3, 500 to the FTO, played videotapes during meetings at his home that included speeches by leaders of Hizballah praising men who had martyred themselves against the United States and Israel, and encouraged donations to support the FTO. Id. at 340-41.

         The recent case of United States v. Van Haften, 881 F.3d 543, 544 (7th Cir. 2018), is also helpful to the analysis. In that case, the defendant pleaded guilty to attempting to provide material support to a FTO. See 18 U.S.C. § 2339B(a)(1). At sentencing, the district court concluded that the terrorism enhancement applied. The Seventh Circuit affirmed. Id. at 545.

         Of relevance, the trial judge found that the defendant's writings on Facebook and elsewhere established “a direct causal link between his hatred of the United States government and his desire to ‘join[] my brothers for the war against American liars' and ‘kill me some American soldier boys.'” Id. at 544. These statements persuaded the trial court that the defendant sought to retaliate against the government “for its treatment of Muslims in general” and for the defendant in particular, because he had previously been designated a sex offender. Id. To be sure, the defense highlighted several inconsistent statements of the defendant, thereby “muddying the waters” and suggesting that the defendant's motivations did not support the finding. Id. But, the appellate court observed that the defendant's own statements demonstrated that he “sought to join ISIS to take up arms against America . . . .” Id. at 545.

         In United States v. Ali, supra, 799 F.3d 1008, the defendants were naturalized citizens who were born in Somalia. Id. at 1014. They were convicted of providing and conspiring to provide material support to al-Shabaab, a FTO, and of making a false statement. Id. at 1014. At sentencing, the district court applied the terrorism enhancement after concluding, inter alia, that the defendants' offenses were calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate. Id. at 1032. The trial court pointed to defendants' contact with al-Sabaab members; their “vocal support” of the FTO's efforts “to expel” by “force” Somalia's Transitional Federal Government (“TFG”); and their “fundraising efforts in support of that cause.” Id. at 10312. The court also noted that defendant Hassan expressed “joy” when she learned of a suicide bombing that targeted a TGF minister. Id. And, defendant Ali said “Thanks God” upon learning that the FTO had killed “forces aligned with the TGF . . . .” Id. The Eighth Circuit affirmed. Id. at 1034.

         Many other cases are consistent with the principles discussed above. See, e.g., United States v. Haipe, 769 F.3d 1189, 1193 (D.C. Cir. 2014); United States v. Mohammed, 693 F.3d 192 (D.C. Cir. 2012); United States v. El-Mezain, 664 F.3d 467, 451 (11th Cir. 2011).

         The defendant correctly observes that if the terrorism enhancement does not apply, the Court must consider Application Note 4 to § 3A1.4. See ECF 138 at 28. Note 4 provides, in part, that if the offense involved or was intended to promote an enumerated offense, “but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, ” then an upward departure is “warranted.” However, the departure may not exceed the top end of the Guidelines range that would have applied with the terrorism enhancement.

         Pursuant to Application Note 2 to § 3A1.4, the False Statement charge in Count Four may qualify as a federal crime of terrorism. See Fidse II, 862 F.3d at 522-25; Awan, 607 F.3d at 314; Mandhai, 375 F.3d at 1247-48. Application Note 2 to § 3A1.4 states, in part: “For purposes of this guideline, an offense that involved . . . (B) obstructing an investigation of a federal crime of terrorism, shall be considered to have involved, or to have been intended to promote, that federal crime of terrorism.” Therefore, the government maintains that the enhancement applies to Count Four, as well. See ECF 139 at 8; U.S.S.G. § 3A1.4, n.2.[4]

         United States v. Benkahla, 530 F.3d 300 (4th Cir. 2008), is informative as to the issue. In that case, the defendant was convicted of making material false statements to the grand jury, obstructing justice, and making material false statements to the FBI. On appeal, the defendant complained that the district court erred in applying the terrorism enhancement under § 3A1.4. Id. at 310. Recognizing the “duty to harmonize Guidelines and commentary, ” the Fourth Circuit observed, id. at 12:

One might wonder, in the abstract, whether obstructing an investigation into a federal crime of terrorism necessarily ‘involve[s]' a federal crime of terrorism, but plainly one could think that it does, and Application Note 2 decides the matter. Indeed, the language of Application Note 2 is identical in all material respects to the language of § 3A1.4 itself. There is no inconsistency of any kind.

         Further, the Court noted that application of § 3A1.4 in the defendant's case was “straightforward.” Id. at 311. In this regard, the Court pointed out that the defendant was convicted of obstruction offenses, and Application Note 2 provides that obstruction offenses qualify for the enhancement, “so long as the thing obstructed qualifies as an investigation into a ‘federal crime of terrorism.'” Id. In the Court's view, the provision was satisfied because the defendant obstructed a grand jury investigation into violations of statutes specified as federal crimes of terrorism (§§ 2339A and 2339B) and the violations involved the training of people at jihadist camps. Id. at 312.

         The Fifth Circuit has further clarified that an obstruction offense “could still ‘qualify for the enhancement if it was intended to promote-that is, “was intended to encourage, further, or bring about”-a federal crime of terrorism.'” Fidse II, 862 F.3d at 523 (quoting Fidse I, 778 F.3d at 481) (emphasis in Fidse II) (alterations omitted).

         With this legal framework in mind, I turn to a summary of the facts. The facts establish that defendant pledged allegiance to the leader of ISIS, knowing the terrorist purpose of ISIS and in support of it; he accepted funds from ISIS to commit a terrorist attack in this country; he was committed to waging jihad; and defendant's conduct was “calculated to influence or affect the conduct of government by intimidation or coercion . . . .” 18 U.S.C. § 2332b(g)(5)(A).

         III. Factual Summary[5]

         A. The Plea Agreement

         A review of the relevant facts necessarily begins with the Plea Agreement (ECF 120), which contains a “Stipulated Statement of Facts, ” included as Attachment A (“Stipulation”). Id. at 9-11. In the Stipulation, the defendant has admitted to facts that satisfy all of the elements of each of the charged offenses.[6]

         In “broad terms” (ECF 138 at 7), the Stipulation sets forth facts that include the following: defendant pledged allegiance to ISIS; he accepted money from ISIS to fund a terrorist attack in the United States; he used various forms of social media to communicate with coconspirators; he attempted, albeit without success, to recruit his brother to join ISIS; and he lied to the FBI during the course of the investigation. See Id. The details of the Stipulation follow.

         Among other things, defendant admits that he knowingly and intentionally conspired with others to provide material support or resources to ISIS (Count One); that he knowingly provided, and attempted to provide, material support or resources to ISIS (Count Two); that he willfully collected funds, directly or indirectly, with the knowledge that such funds were to be used, in whole or in part, to carry out a terrorist attack intended to cause death or serious bodily injury to civilians (Count Three); and he knowingly and willfully made false statements to agents of the FBI with respect to a terrorism investigation (Count Four). See ECF 120 at 9-11.

         The Stipulation reflects that in September and October of 2014, the defendant conversed with “Individual #1.” Id. at 9. (As noted, Individual #1 is the defendant's friend and coconspirator, Tamer Elkhodary, who is a member of ISIS). The defendant admitted that he knew ISIS is a foreign terrorist organization; he expressed his belief “in the legitimacy of ISIS”; he expressed his support for an Islamic caliphate; and he expressed “his hope that ISIS would be victorious and its enemies defeated.” Id. In addition, defendant acknowledged his “readiness to travel to Syria . . . to live in the Islamic State . . . .” Id.

         On February 17, 2015, through social media, defendant “pledged his allegiance” to ISIS; described himself as a “soldier” of ISIS; committed himself to “violent jihad”[7]; and asked Elkhodary to “convey his message of loyalty to ISIS leadership.” ECF 120 at 9. And, the defendant agreed not to discuss his “plans for a potential terrorist attack . . . .” Id. In other chats with Elkhodary between March and June of 2015, the defendant “sought guidance” from Elkhodary “on how to obtain or make some sort of explosive device and a silencer.” Id. And, he discussed his efforts to undertake “extreme security measures” to conceal his activities. Id. In addition, the defendant discussed his “preparedness for Jihad . . . .” Id.

         Between March and June 2015, defendant received approximately $8, 700 from his ISIS coconspirators, “to be used to conduct a terrorist attack in the United States.” Id. at 10; see also ECF 230. Most of the monies were received through transfers from an online financial account associated with an organization referred to in the Plea Agreement as the “UK Company, ” which was based in Wales, United Kingdom, and Dhaka, Bangladesh. ECF 120 at 10. The UK Company was “made up of a number of related entities, ” and its primary business” consisted of the provision of IT products and services. Id. (In other submissions, the UK Company is referred to as “Ibacs”). The owner of the UK company, identified as “Individual #2, was a national of Bangladesh who traveled to Syria in 2014 to join ISIS and to “assist in its development of weaponized drone technology.” ECF 120 at 10. He was killed on December 10, 2015, while fighting with ISIS. Id.

         Defendant agreed that Individual #2 relied on “Individual #3, ” a Director of the UK Company, as well as on “Individual #4, ” an employee of the UK Company, to use financial and business accounts associated with the UK Company to send monies to defendant. Id. They also purchased drone technology for ISIS. Id.

         “By utilizing the UK Company's name and business accounts, members of the conspiracy were able to conceal the true nature of their ISIS-related transactions.” Id. The money transfers to defendant were “disguised” to avoid detection. Id. Similarly, the defendant attempted to conceal his identity to protect himself from exposure to law enforcement. Id. The defendant used devices and accounts with “alias names and/or fake addresses” (id.) to communicate “surreptitiously” with members of the conspiracy. Id. at 11.

         The Stipulation states, in part, id. at 10:

The bulk of the monies were received [by defendant] through transfers from an online financial account associated with the UK Company, in some instances emanating from Bangladesh where Individual #3 was located, into ELSHINAWY's online financial account in the name of TheCheapMart, LLC, a business name he had previously registered in Maryland. One of the money transfers was received into an online financial account associated with ELSHINAWY's religious wife. The transfer was falsely disguised to appear as purchase of printers rather than a cash transfer. The last money transfer was sent to ELSHINAWY via wire from a location in Egypt in the name of another member of the conspiracy.

         Further, the Stipulation recounts, id. at 10-11:

ELSHINAWY used various monikers to register business and social media accounts, such as “mojoeusa, ” “Mo Jo, ” “Black Eyes, ” and others, in order to conceal his identity. He then used those accounts, while in Maryland, to communicate with other members of the conspiracy and facilitate its objectives. In addition to the use of social media, ELSHINAWY and members of the conspiracy utilized various other forms and methods of communication, in some instances registering devices and accounts under alias names and/or fake addresses, in order to conceal from law enforcement their criminal association, the substance of their communications, and their criminal activities. ELSHINAWY himself created and/or used various of these forms and methods to surreptitiously communicate with members of the conspiracy in order to facilitate the transfer of monies to him from ISIS operatives, to conceal his communications and activities with those operatives, and to provide those operatives with the ability to use and access communication accounts at will.

         In addition, the defendant stipulated that he attempted to recruit his brother, Ahmed Elshinawy, to join ISIS. ECF 120 at 11. Ahmed Elshinawy resides in Saudi Arabia. Id. Among other things, the defendant told his brother that he had “plans” in the United States, for which he intended to remain in this country temporarily; he was “taking steps” to avoid detection; and he expressed his “desire” to “wage violent Jihad and die as a martyr.” Id.

         According to the Stipulation, defendant was interviewed by agents of the FBI in July 2015. At the time, defendant provided false information as to the total sum of monies he had received from ISIS operatives. Id. Moreover, he falsely claimed that he took the money “to defraud ISIS of funds.” Id. In addition, defendant “mischaracterized the true nature and extent of his association with and relationship to, ISIS operatives and the support he had provided to ISIS.” Id.

         Soon after the first FBI interview of defendant, Elshinawy “took steps to block and erase his communications over social media with [Elkhodary], and exhorted his brother to do the same with his own social media account.” Id. Defendant “also directed his brother to warn [Elkhodary] that he (ELSHINAWY) had been ‘revealed and uncovered.'” Id.

         B. Other Evidence[8]

         1. Background

         Defendant, a United States citizen, was born in Pittsburgh, Pennsylvania in 1985. ECF 138 at 33. He is one of five children born to parents who are professionals with advanced degrees. Id.; see also ECF 138-12 at 1-19 (sworn statement of defendant's father, Yousef Elshinawy, M.D.); ECF 138-12 at 30 (statement of defendant's mother, Fatma Abdelaty, Ph.D.); ECF 138-8 (Aff. of defendant's sister, Mona Elshinawy, Ph.D.).[9] At the time of defendant's birth, his father was engaged in medical training at the University of Pittsburgh. ECF 138-12 at 8. It appears that the defendant's parents are not United States citizens, and they returned to Egypt when the defendant was three months old. ECF 138-12 at 30. The defendant grew up primarily in Egypt and Saudi Arabia, and attended college in Egypt. ECF 138 at 33.

         Around 2007, the defendant began to travel between Egypt and the United States. He returned to the United States in 2007, but went back to Egypt in 2008. ECF 138 at 33-34. Then, in 2010, he again returned to the United States and married a woman who converted to Islam. Id. at 34. Due to problems with work and his marriage, defendant returned to Egypt in 2011. Id. However, the defendant again returned to the United States in November 2012. Id. at 35. According to the defendant, he was in “dire financial straits” and faced debt that was “overwhelming.” Id. By the fall of 2014, claims defendant, his financial situation made him “susceptible to offers of easy money and travel to Syria from his childhood acquaintance, Tamer . . . .” Id.

         The government vigorously disputes that defendant's conduct was motivated by financial hardship. See ECF 145 at 25-26. It asserts, correctly, that a review of defendant' finances “does not paint the picture of utter desperation . . . .” Id. at 25.

         2. Use of Social Media

         This is not a case based on mere words. Nevertheless, the defendant's use of social media was both extensive and revealing. In particular, defendant's chats with his brother, Ahmed Elshinawy, and his friend, Tamer Elkhodary, are significant.[10]

         a. Chats with Tamer Elkhodary

         In March 2014, defendant and Elkhodary had a chat via Facebook, in which Elkhodary encouraged defendant to “do jihad.” ECF 139-9 at 7. According to the records obtained by the government, the two corresponded only occasionally over the next several months. During an exchange with Elkhodary on September 9, 2014, defendant said, ECF 139-9 at 12: “My heart is not able to accept what the infidels do to Muslims.” Elkhodary responded, id.: “Allah willing, they will all be defeated and retreat, and we will behead . . . foreign tyrants . . . .” Defendant signified his agreement when he answered: “May God keep you safe.” ECF 139-9 at 12.

         As early as October 2014, defendant expressed his support of ISIS. In an exchange with Elkhodary on October 5, 2014, defendant praised “the end of Israel” and the “coming” of the Islamic Caliphate. Defendant also said, id. at 14: “Allah willing, the Islamic State is victorious.” The next day, October 6, 2014, defendant asserted, id. at 17: “I now live with the Islamic State as if I were over there.” A few days later, on October 10, 2014, defendant told Elkhodary that he “watch[ed] videos day and night in order to get the news.” Id. at 20-21. Moreover, he told Elkhodary that ISIS was becoming “more powerful, ” despite opposition from “60 Zio[nist]-Arab states . . . .” Id. at 20. And, defendant announced, id. at 21: “My heart is with the Islamic State.” He asked Elkhodary, id.: “Is this really the Caliphate [?]”, adding, id. at 22: “I think about the matter day and night.”

         By the fall of 2014, defendant indicated that he wanted to move to the Islamic State. On October 10, 2014, defendant told Elkhodary, via social media: “My wife and I will come, man. I want to live there, because the Islamic State is coming with a promise from our God. So, if it is the Islamic State, I just want to live there.” Id. at 25. Elkhodary reminded defendant that Allah “disavowed those who dwell among the infidels.” Id. After defendant inquired several times if “Shari'ah [law is] applied” in Rakka (id. at 25, 26, 27), he asserted, id. at 27: “[T]he westerner [i.e., defendant] will be one of the most fierce mujhahidin if I am certain that this is the truth.”[11]Elkhodary told defendant to “come to Turkey and, Allah willing, [he would] arrange everything” for defendant. Id. at 29. Elshinawy responded: “I am coming soon.” Id. at 35.

         Defendant then discussed with Elkhodary his plan to “save up for the ticket [a]nd expenses.” Id. at 36. He noted that he needed “a tight plan to get out.” Id. Elkhodary said, id.: “If you need money or anything, let me know.” Defendant said, id. at 38: “I'm coming, Allah willing. Hopefully, the Lord will forgive my sins and grant us the rewards of jihad.” And, he admonished Elkhodary “not [to] write anything on the Internet because it is all monitored.” ECF 139-9 at 37.

         In addition, defendant voiced complaints to Elkhodary about the United States. For example, defendant complained on October 10, 2014, that “surveillance [in the United States] is horrible.” Id. at 26. Defendant also complained that whenever he “come[s] to America” he is “stopped and searched” because of his “name and looks.” Id. at 33.

         Also on October 10, 2014, defendant discussed with Elkhodary “the situation here, ” (i.e., the United States), claiming: “People are scared . . . They are now afraid of raising the banner of the State [i.e., ISIS] in America and the declaration of Shari'ah.” Id. at 30-31. Elkhodary responded, id. at 31: “May God grant us victory.” And, defendant told Elkhodary, id. at 32: “[W]e must have a secret word in our talk for emergencies.”

         In the early months of 2015, Elshinawy pledged allegiance to ISIS. On February 17, 2015, Elshinawy told Elkhodary: “Between you an[d] me I pledged allegiance to the Amir.” ECF 139-9 at 46. Elkhodary responded, id.: “Allah willing, you will benefit and be beneficial.” Further, Elkhodary told defendant that he (Elkhodary) had personally “pledged allegiance to him [i.e., the Amir], hand in hand.” Id. at 47. Defendant responded: “If you give [al-Baghdadi] my regards and my allegiance [y]ou would have done me a favor.” Id. at 56.

         The government claims, correctly, that the Amir is a reference to Abu Bakr al-Baghdadi, the ISIS leader. See ECF 139-9 at 23. Indeed, in a chat between defendant and his brother on March 11, 2015, defendant specifically told his brother that Elkhodary had pledged allegiance to al-Baghdadi. See ECF 139-10 at 16.

         Also on February 17, 2015, defendant observed, id. at 49: “Some of those who call themselves Muslims are allied publicly with the Christians to kill Muslims.” He added, id. at 52: “[M]y soul is there [w]ith the mujahidin.” In the same exchange, defendant proclaimed: “I am a soldier of the State [i.e., ISIS], but temporarily away.” Id. at 55. Elkhodary told defendant: “You are at a vulnerable point; through you, brother, we can either be defeated or victorious . . . you are now different than before . . . and don't tell anyone what you have in mind . . . .” ECF 139-9 at 68-69. Defendant responded: “Of course not. It is a crime here. A very big one. If I meet our Lord while being, at least, faithful to Muslims, I may have hope for mercy.” Id. at 70.

         Elshinawy's entanglement with ISIS deepened. On March 2, 2015, Elkhodary told defendant, “Hurry.” Id. at 74. Defendant indicated that he “need[ed] time to save money to manage [his travel] . . . .” Id. at 75. Elkhodary admonished defendant: “Do not talk openly.” Id. at 78. During the chat, defendant said, id. at 83: “The westerner is sick of being in the West.”

         Thereafter, Elkhodary instructed defendant to download and install Telegram, an “app” that enables the use of encrypted communications, and defendant agreed to do so. Id. at 85-90.[12]Elkhodary also told Elshinawy: “I will have a brother call you now.” Id. at 90. Elshinawy asked, “Trust worthy?” Id. at 91. Elkhodary responded, “I am with him.” Id. The defense concedes that, after defendant activated the App, Elkhodary “connected [the defendant] to an unidentified individual in Syria.” ECF 138 at 9.

         Elshinawy subsequently contacted Elkhodary on March 6, 2015, and told him, “Allah willing, a huge blessing will happen.” ECF 139-9 at 96. Elkhodary responded: “Most importantly do not talk with anyone, not even with me. May Allah protect you.” Id. at 97.

         In a chat on March 9, 2015, Elshinawy told Elkhodary: “I am getting things in order for myself. I will not come now. In a bit.” Id. at 104. Several days later, defendant wrote: “I need a favor from you. A small message to deliver to our friend. I noticed that my phone is being monitored. The camera opens on its own at weird times. Tell our friend that I am preparing myself with the highest security measures and will contact him soon, Allah willing.” ECF 139-9 at 112-13. On March 13, 2015, Elshinawy wrote to Elkhodary: “Done, all is perfect.” ECF 139-9 at 113.

         As discussed, infra, defendant received his first monetary transfer from ISIS operatives on March 23, 2015. ECF 139-6 at 8. It was in the approximate amount of $1, 500. As noted in the Stipulation, the money was intended to fund a terrorist attack.

         By April 2015, defendant's attack planning was underway. On April 3, 2015, Elshinawy told Elkhodary, “Soon, you'll hear good news, Allah willing.” ECF 139-9 at 123. Elkhodary told defendant to “Stay strong” and Elshinawy replied, “I am . . . .” Id. Defendant also said: “I have many goals[.] But going slow for safety.” ECF 139-9 at 124.[14] “Praise be to Allah, ” responded Elkhodary, “You've always been a ‘gangsta.'” Id. at 125. Elshinawy replied: “Exactly. I'll come over when I am done, Allah willing.” Id. at 125-26. He added: “I ask Allah, the Almighty, the Lord of the great throne to grant us righteousness, steadfastness, and faithfulness. . . . And this favor.” Id. at 128-29. He also told Elkhodary: “I will be indebted to you for it, all my life . . . . How great it is when you show your brother the way to paradise.” Id. at 129. Towards the end of their chat, defendant referenced “jihad” (id. at 133), and Elkhodary advised Elshinawy: “Be harsh in the killing of Allah's enemies.” Id. at 134. Elshinawy responded, “Victory is patience for an hour[.] Allah willing.” Id. at 135.

         Elshinawy sought moral support for his attack planning in an exchange with Elkhodary on April 6, 2015. Elkhodary asked defendant, “How are you doing?” Id. at 137. Elshinawy responded: “O' Lord. I am passing through the hardest phase right now; Allah is the one who is sought for help.” Id. at 139. Elkhodary advised, “[F]aithfulness. May Allah make things easy for you.” Id. “O' Lord, ” answered Elshinawy, “[we ask for] faithfulness and renewed commitment.” Id. at 140 (Bracket in original). Ten days later, on April 16, 2015, ISIS affiliates sent Elshinawy another $1, 000. See ECF 139-6 at 10.

         “Thanks be to Allah, I have found my dream project, ” proclaimed defendant on April 21, 2015, referencing an attack plan. ECF 139-9 at 165. He continued: “It was a source of anxiety; life without Islam as the main drive for life.” Id. Defendant also wrote, id. at 166: “Allah willing, we will meet after I finish my work here.” Id. at 166. In response, Elkhodary wrote: “Know that Allah is with us and will grant us victory. There is nothing holding us back from reaching paradise except for them to kill us. Honesty, and renewed commitment[.] The most important thing. Do you need anything?” Id. at 168-69. Elshinawy replied, “I need supplications. And renew my commitment, Allah willing.” Id. at 170.

         In the same chat, defendant asked Allah to “facilitate things.” Id. at 171. “Hurry up, Shin, ” Elkhodary wrote. Id. at 172. “Soon, ” Elshinawy wrote back, “but you have to know that from my end, I am not behind -- on anything, thanks be to Allah[.] Just waiting on the . . . The other party.” ECF 139-9 at 172-173. Later, defendant added, “Jihad builds up the soul[.]” Id. at 180.

         By late April 2015, defendant was consumed with his “dream project.” On April 22, 2015, Elshinawy wrote in a chat with Elkhodary: “By Allah, I am really eager to satisfy Allah Almighty[.]” Id. at 190. Then, defendant posed a question of significance, id. at 191: “I wanted to ask you. Is making a small thing with a silencer difficult or easy?” Id. at 191.[15] Elkhodary responded, “Definitely, there is something ready. It is much better to buy a slave than raising one.” Elshinawy replied. “You are right. I hope to find one. . . . By Allah, I really hope so, brother[.] That's why I said that if I can not get one, I will make one[.]” ECF 139-9 at 192. Elkhodary replied, id. at 193: “May Allah make it easy for you and for us.”

         Defendant told Elkhodary, id. at 194: “Listen to the lessons of Sheikh Al-'Adnani. Praise be to Allah. By Allah, he says what exactly is on my mind.” Defendant also said, id. at 195-96: “And may those servants of their government, who watered down the religion, as well as the rulers and those who are not associated with the religion not harm you[.] Allah willing, the victory is for us, and humiliation is for them.” Defendant added, id. at 196: “I will completely dedicate my time for that matter, and Allah willing, all will be fine.”

         I pause to note that Aaron Zelin, the government's expert in terrorism and jihadi groups, submitted a report in which he cited Abu Muhammed al-Adnani's call for ISIS supporters to conduct attacks in their home countries as a major contributor to the “huge spike in various types of attacks.” ECF 145-4 at 3. At the sentencing hearing, Zelin testified that al-Adnani had delivered a speech exhorting ISIS supporters in western countries to “conduct terrorist attacks in their own home countries” rather than travel to the Middle East. ECF 190 at 95-96. Dr. Sageman largely agreed with Zelin's assessment, and added that the attacks in western countries were also “in retaliation [for] western bombings in Syria.” Id. at 109-10.

         On April 25, 2015, Elkhodary told defendant to provide him with a phone number to facilitate covert communications. Id. at 199-204. Then, on April 26, 2015, defendant said to Elkhodary, id. at 215: “[T]his matter has become the most important thing in my life. I do what I can to follow what I am told.” Elkhodary replied, id.: “May Allah make your steps firm.” He added, id. at 217: “The entire village is waiting for you.” Defendant answered, id.: “O God, make it easy.” Elkhodary instructed defendant to “make sure to keep it secret.” Id. at 218. And, he said, id.: “Rejoice, if you fear Allah, He will be with you, and He definitely will grant you victory as He promised.” The defendant recited the ISIS mantra to Elkhodary on May 1, 2015, exhorting jihad. ECF 139-9 at 219.

         In a chat on May 9, 2015, defendant told Elkhodary: “Everyone is scared over here.” Id. at 222. Elkhodary answered: “May Allah increase their fear.” Id. Defendant signified his agreement, stating, id.: “Allah willing.”

         In an exchange on May 25, 2015, Elkhodary told defendant: “Be harsh in the killing of Allah's enemies.” Id. at 234. Defendant responded, id.: “May our Lord keep you safe and grant you the highest level of paradise.” Then, each said, “Amen.” Id.

         Defendant and Elkhodary communicated for the last time on July 14, 2015, a few days before the FBI approached defendant on July 17, 2015. ECF 139-9 at 240. Thereafter, Elkhodary attempted to contact defendant on July 18, 19, 25, and August 3, 2015, without success. Id. at 241-46. For example, on July 19, 2015, Elkhodary wrote: “Where are you, Chief? Why are you ignoring us? I want to check on you.” ECF 139-9 at 244. Defendant did not respond.

         b. Chats with Ahmed Elshinawy

         Defendant's brother, Ahmed Elshinawy (“Ahmed”), [17] has been described as an Islamic scholar. ECF 223 at 5. During the same general period in which defendant chatted with Elkhodary, he also had many conversations with his brother, also through social media. Ahmed seemed quite skeptical if not resistant to defendant's views of ISIS, and the two engaged in lengthy, intellectual discussions about their respective ideologies with regard to Islam. See, e.g., ECF 139-10 at 12, 28, 49, 414. Defendant sought to persuade his brother as to his views, without success. See, e.g., ECF 139-10 at 28.

         In a discussion between defendant and Ahmed on March 11, 2015, defendant said: “My life is for Allah. If I die for the sake of Allah, then there is no problem.” ECF 139-10 at 25. Defendant also informed Ahmed that he was “ready to pledge allegiance [to ISIS] soon[.]” Id. at 13. He explained: “This Emir is busy. I will do it soon.” Id. at 16. And, he told his brother: “Tamer has pledged the allegiance with Abu Bakr Al Baghdadi personally.” Id. Moreover, defendant disclosed that although Elkhodary was his “first connection, ” he now had his own “personal connection[.]” Id. at 18. Notably, defendant also stated that he had “become one of them[.]” Id. at 21.

         On April 25, 2015, defendant complained that the police took his car because he did not have certain “papers” (ECF 139-10 at 79) and he would “have to pay a lot of money to get it back.” Id. at 80. Then, he went on to express his desire “to go to Jihad.” Id. He added, id.: “I do not have dreams or aspirations in this world except the Jihad. . . . I want just to go to Jihad and be with the Islamic State.” Ahmed responded: “[W]e are not created for the Jihad only” (id. at 81), and defendant answered, id.: “Yes, of course, but I mean this is my project. Man, stop discouraging.” Id.

         During the chat, defendant also said, id. at 83: “Now I have a bigger project which will be my goal.” He added, id. at 88: “I believe that today's best Jihad is the Jihad of war.” And, defendant said: “I am working on a project but it needs a lot of time and effort.” Id. at 98. When Ahmed asked if he could know of the project (id. at 99), defendant responded, id. at 100: “No. I cannot tell you here.” But, he added that perhaps he could reveal it “on another place on the Internet.” Id. Nevertheless, defendant claimed it was “a great project.” Id.

         In a discussion on April 27, 2015, defendant told his brother that he had “already pledged allegiance” to ISIS. ECF 139-10 at 122. When Ahmed inquired how defendant felt after doing so, defendant responded, id.: “Finally, I am a Muslim with dignity and pride unlike the Jews and Christians . . . . I belong to a State and people who apply Shari'ah and the Islamic Caliphate.” Defendant added that “true life is . . . waiting for death for the sake of Allah.” Id. at 123. Defendant also disclosed to his brother that he had “received a lot of money.” Id. at 125. Moreover, he said, id. at ...


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