Court Upholds Multiple Convictions, Sentences in Terrorism Case; Vacates Below-the-Guidelines Sentence

US v. Kahn: Kahn and his codefendants (Chapman and Abdur-Raheem) were convicted after a bench trial of multiple offenses "related to a conspiracy to wage armed conflict against the United States" and "a country with whom the United States is at peace." Starting in 1999, the group engaged in training for a "jihad" that included overly rigorous paintball exercises, ties to a Pakistani terrorist organization, and (in some cases) participation in military actions against India in Kashmir.

Khan was specifically convicted of conspiracy to enlist in armed combat against the United States, conspiracy to level war against the United States, conspiracy to contribute services to the Taliban, conspiracy to provide material support to the Pakistani terrorist group, and four counts of conspiracy to use firearms in relation to crimes of violence. Chapman was convicted of conspiracy to violate the Neutrality Act, conspiracy to provide material support to the Pakistani terrorist group, and three 924(c) charges. Abdur-Raheem was convicted on the same charges as Chapman, except he was convicted of only one 924(c) count.

On appeal, the Fourth Circuit upheld all the convictions against Kahn, Chapman, and Abdur-Raheem against various challenges.

• First, the court held that there was sufficient evidence to support all the charges.
  
• Second, the court rejected Chapman and Abdur-Raheem's argument that their trial should have been severed from Kahn's, due to the overwhelmingly prejudicial nature of the evidence against Kahn involving aid to the Taliban and Al-Qaeda.
  
• Third, the court held that it was not necessary to secure a waiver of the defendants' trial rights under Rule 23(a) from the defendants themselves, rather than counsel.
  
• Fourth, the court held that two of the conspiracy charges, involving conspiring to injure persons or property in a foreign country and conspiring to use firearms in connection with a conspiracy to commit crimes of violence, were valid and were not "conspiracies to conspire," as argued by the defendants.
  
• Fifth, the court held that the Government could use statements made by Chapman without Miranda warnings and after Chapman was "in near solitary confinement for weeks," because the statements were voluntarily made.
  
• Finally, the court rejected claims of selective prosecution, based on the theory that the Government had not aggressively prosecuted other terrorist organizations.

As to sentences, the court upheld Kahn's and Chapman's sentences, fueled by 924(c) mandatory minimums. First, the court rejected their arguments that the district court erred by imposing multiple 924(c) sentences because the firearm possession all related to a single criminal episode. Second, the court rejected the argument that the stacking of Kahn's and Chapman's 924(c) mandatory minimums produced sentences that violated the Eighth Amendment. Amazingly, the court performs this analysis without ever setting forth what the total sentences are for Kahn or Chapman.

The court does, however, go on to hold that Abdur-Raheem's sentence of 52 months is an unreasonable variance from the Guideline range of 97 to 121 months. The district court concluded that Abdur-Raheem's conduct was similar to that of another codefendant, Surratt, who pleaded guilty and received a 46-month sentence. The district court's rationale, according to the Fourth Circuit, provided undue weight to the need to avoid sentencing disparities between similarly situated defendants. It therefore vacated Abdur-Raheem's sentence.

District Judge Goodwin (sitting by designation), dissented from the court's opinion as to Kahn's sentence (he agrees on Chapman's sentence). Goodwin sets forth that Kahn received consecutive sentences of 120 months, 300 months, and life in prison. He quotes the district court judge as noting that she was required to impose those sentences and "there are murderers who get far less time than this, and I have sentence Al-Qeada members who were planning real attacks on these shores for far less time . . . and I have to tell you that this is sticking in my craw." Goodwin argues that Kahn's firearm possession in this case constituted one continuing act and his convictions should be merged and the imposed sentence limited to 120 months.

Doug Berman has these thoughts on Kahn.