14-3674-cr
United States of America v. Sulaiman Abu Ghayth

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
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DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 27th day of September, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             JOSÉ A. CABRANES,
             RICHARD C. WESLEY,
                             Circuit Judges.

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    United States of America,
             Appellee,

                 -v.-                                               14-3674

    Sulaiman Abu Ghayth,
             Defendant-Appellant.
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    FOR APPELLANT:                        Zoe J. Dolan, Law Offices of Zoe
                                          Dolan, Los Angeles, California

    FOR APPELLEE:                         Michael Ferrara (John P. Cronan,
                                          Nicholas Lewin on the brief)
                                          Assistant United States
                                          Attorneys for the Southern
                                          District of New York, New York.

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     Appeal from a judgment of the United States District
Court for the Southern District of New York (Kaplan, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Sulaiman Abu Ghayth appeals from the judgment of the
United States District Court for the Southern District of
New York convicting him, after a jury trial, of various
terrorism-related offenses and sentencing him to life in
prison. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     Abu Ghayth is an Islamic cleric of Kuwaiti descent who
delivered speeches at Al Qaeda training camps and
guesthouses in the months leading up to September 11, 2001,
in which he urged Al Qaeda recruits to pledge their loyalty
to bin Laden and fight for jihad. He also participated in
numerous Al Qaeda recruiting and propaganda videos that
aired in the months following the September 11 terrorist
attacks. He was detained abroad and charged with conspiracy
to murder Americans, 18 U.S.C. § 2332(b) (Count I),
conspiracy to provide material support to terrorism, 18
U.S.C. § 2339A (Count II), and material support of terrorism
(Count III). After a jury trial, he was convicted on all
counts.

     The gravamen of Abu Ghayth’s appeal is that he could
not commit any of the charged crimes because he lacked
specific knowledge of any particular plot and did not
participate in a specific terrorist act. To this end, he
raises four distinct issues on appeal: (1) whether the jury
instructions for Count I properly identified the mens rea
for conspiracy to murder; (2) whether the evidence was
sufficient to sustain a conviction for conspiracy to murder;
(3) whether the jury instructions for Count III properly
identified the intent requirement for aiding and abetting
material support under United States v. Rosemond; and (4)
whether the indictment for Counts II and III sufficiently
alleged providing material support of terrorism.

    I. Jury Instructions for Conspiracy to Murder Americans
       (Count I)


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     We review “challenges to jury instructions de novo but
will reverse only where the charge, viewed as a whole,
demonstrates prejudicial error.” United States v. Prado,
815 F.3d 93, 100 (2d Cir. 2016) (internal citations
omitted). We consider “the instructions as a whole to see
if the entire charge delivered a correct interpretation of
the law.” United States v. Al Kassar, 660 F.3d 108, 127 (2d
Cir. 2011) (internal quotations omitted); United States v.
Alkins, 925 F.2d 541, 550 (2d Cir. 1991) (the trial court
“has discretion to determine what language to use in
instructing the jury as long as it adequately states the
law.”).

    Section 2332(b) provides, in relevant part:
         Whoever outside the United States ... engages in a
         conspiracy to kill[] a national of the United
         States shall ... in the case of a conspiracy by
         two or more persons to commit a killing that is a
         murder as defined in section 1111(a) of this
         title, if one or more such persons do any overt
         act to effect the object of the conspiracy, be
         [fined and/or imprisoned].

18 U.S.C. § 2332(b). Murder is defined as the “unlawful
killing of a human being with malice aforethought.” 18
U.S.C. § 1111(a).

     “To establish the existence of a criminal conspiracy,
the government must prove that the conspirators agreed ‘on
the essence of the underlying illegal objectives[,] and the
kind of criminal conduct in fact contemplated.’” In re
Terrorist Bombings of U.S. Embassies in East Africa, 552
F.3d 93, 113 (2d Cir. 2008) (quoting United States v.
Salameh, 152 F.3d 88, 151 (2d Cir. 1998)). The government
need not prove that the defendant knew every unlawful
objective of the conspiracy, every detail of its operation,
or the identity of every co-conspirator. United States v.
Gleason, 616 F.2d 2, 16-17 (2d Cir. 1979); see also Ocasio
v. United States, 136 S. Ct. 1423, 1429 (2016) (“The
government does not have to prove that the defendant
intended to commit the underlying offense
himself/herself.”). It must show only “that the defendant
shared some knowledge of the conspiracy’s unlawful aims and
objectives,” Salameh, 152 F.3d at 151, and “specifically
intended that some conspirator commit each element of the
substantive offense,” Ocasio, 136 S. Ct. at 1432.

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     The court’s instructions properly conveyed those
requirements. It explained to the jury: “What is necessary
is that the defendant have participated in the conspiracy
with knowledge of its unlawful purpose, and with an intent
to aid in the accomplishment of its unlawful objective,”
i.e., the murder of Americans. It added that the
“defendant, with an understanding of the unlawful nature of
the conspiracy, must intentionally have engaged, advised, or
assisted in the conspiracy for the purpose of furthering any
of its illegal objectives.” It then defined the illegal
objective of the conspiracy, murder, in accordance with 18
U.S.C. § 1111(a).

     Abu Ghayth contends these instructions vitiated the
“specific intent” requirement for conspiracy and murder, but
viewing the charge as a whole, they explicitly and
repeatedly stressed the government’s burden to prove intent;
for example, the court emphasized that the defendant “must
intentionally have engaged, advised, or assisted in the
conspiracy for the purpose of furthering any of its illegal
objectives.” The phrase “any of its illegal objectives”
does not subvert the mens rea requirement for murder, since
Judge Kaplan began the charge by identifying the universe of
“illegal objectives” of the conspiracy as “the unlawful
agreement to kill American nationals.” The instructions did
not require the jury to find that Abu Ghayth intended to
kill a specific person or plan a specific plot, because the
killing of Americans was the “essential nature” of the
illegal objective, and Abu Ghayth was charged only with
conspiracy to commit that act. In re Terrorist Bombings,
552 F.3d at 113.

    II.   Sufficiency of the Evidence on Conspiracy to
          Murder Americans (Count I)

     “A defendant challenging his verdict on sufficiency
grounds bears a heavy burden.” United States v. McCarthy,
271 F.3d 387, 394 (2d Cir. 2001) (citation omitted). We
affirm a conviction if “any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). On appeal we consider the evidence in the light
most favorable to the government and analyze each piece of
evidence in terms of the totality of the government’s case.
United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011).


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     Abu Ghayth challenges the sufficiency of evidence to
support Count I, conspiracy to murder Americans. He
essentially characterizes himself as a religious figure who
was present among known terrorists without killing anyone or
participating in the execution or planning of any specific
act of terror.

     The flaw in Abu Ghayth’s sufficiency arguments flows
from the failure of his challenge to the jury instructions.
The government had no need to show that he possessed
knowledge of any particular plot to kill Americans or that
he had the specific intent to carry out such a plot. Its
burden was to prove that he had “knowing participation or
membership in the scheme” and “some knowledge of [its]
unlawful aims and objectives.” United States v. Lanza, 790
F.2d 1015, 1022 (2d Cir. 1986); Ocasio, 136 S. Ct. at 1429-
30. In other words, the jury only had to find that Abu
Ghayth knew of Al Qaeda’s objective to kill Americans and
intended to participate. See United States v. Fawwaz, 2017
WL 2399329, *1 (2d Cir. Jun. 2, 2017) (summary order
affirming conviction for conspiracy to kill Americans)
(citing Salameh, 152 F.3d at 151).

     Taking the evidence in the light most favorable to the
government, the proof of this knowledge is overwhelming.
Abu Ghayth joined the criminal conspiracy by seeking out
Osama bin Laden in Afghanistan and pledging his services to
Al Qaeda as a religious scholar and orator. He participated
in the conspiracy by delivering speeches with bin Laden,
including on the day after the September 11 attacks and in
advance of the shoe-bomb plot. These speeches threatened
and urged the killing of Americans, for example, by evoking
the “Storm of Airplanes” and “our war with the United
States,” and promised further deadly attacks. The fact that
Abu Ghayth may not have known the logistics is of no moment.
Gleason, 616 F.2d at 16. Nor is it relevant that he only
partially pledged fealty to bin Laden, or that he was not
known by every co-conspirator. See id.; see also United
States v. Sterling, 506 F.2d 1323, 1340 (2d Cir. 1974). The
defendant joined the conspiracy and is equally complicit “by
reason of [his] knowledge of the plan’s general scope, if
not its exact limits.” Blumenthal v. United States, 332
U.S. 539, 559 (1947).

    III. Jury Instructions on Aiding and Abetting Material
         Support of Terrorism (Count III)


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     Abu Ghayth’s challenge to the jury instructions on
Count III is raised for the first time on appeal; we
therefore review these instructions for plain error. United
States v. Vilar, 729 F.3d 62, 70 (2d Cir. 2013).

     Count III alleged a violation of 18 U.S.C. § 2339A with
a charging reference to 18 U.S.C. § 2–the aiding and
abetting liability statute. Section 2339A(a) defines an
offense that proscribes “provid[ing] material support or
resources ... knowing or intending that they are to be used
in preparation for, or in carrying out, a violation of ...
[18 U.S.C. §] 2332b.” The jury instructions articulated
that Abu Ghayth was guilty as an aider and abettor under
this statute if the jury found (1) that another individual
“knowingly committed the underlying crime of providing
material support to terrorists,” (2) that Abu Ghayth
“willingly and knowingly associated himself in some way with
that crime,” and (3) that he “willfully engaged in some
affirmative conduct or some overt act for the specific
purpose of bringing about that crime.” The instructions
further stressed that the defendant must have “the specific
intent to do something the law forbids,” and that one who
lacks knowledge of the crime cannot be an aider and abettor.

     Abu Ghayth argues that these instructions failed to
take account of the mens rea requirement for aiding and
abetting liability set forth in Rosemond v. United States,
134 S. Ct. 1240 (2014). Rosemond held that for a conviction
under the firearm-use-in-drug-trafficking statute, 18 U.S.C.
§ 924(c), “the intent must go to the specific and entire
crime charged.” Id. at 1248. The defendant therefore had
to have prior knowledge both that the criminal drug-
trafficking would take place and “that a confederate would
use or carry a gun during the crime’s commission.” Id. at
1243.

     Even if one reads Rosemond into 18 U.S.C. § 2339A, Abu
Ghayth was not prejudiced and therefore the district court
committed no plain error. Prado, 815 F.3d at 99. The
underlying crime defined by Section 2339A involves (1)
knowingly (2) providing material support or resources (3)
knowing or intending that such resources are to be used in
preparation for or in carrying out (4) an offense identified
as a federal crime of terrorism. See 18 U.S.C. § 2339A.
Rosemond would only control if Abu Ghayth lacked full
knowledge that his material support would contribute to an
act of terrorism. 134 S. Ct. at 1247-48. But the jury

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could not have followed the district court’s instructions in
arriving at its verdict on Count I without finding that he
“join[ed] in the criminal venture ... with full awareness of
its scope.” Id. at 1249. As discussed, the overwhelming
evidence supports Abu Ghayth’s conviction for conspiring to
murder Americans under 18 U.S.C. § 2332(b), a federal crime
of terrorism identified in Section 2339A.

    IV.   Indictment Alleging Material Support of Terrorism
          (Counts II & III)

     Counts II and III of the indictment charged Abu Ghayth
with conspiracy to provide material support to terrorism by
furnishing personnel, and the underlying substantive
offense. 18 U.S.C. § 2339A (“the term ‘material support or
resources’ means any ... personnel (1 or more individuals
who may be or include yourself)”). Abu Ghayth sought to
dismiss Counts II and III on the ground that the indictments
fail to allege “material support or resources” under 18
U.S.C. § 2339A.

     A criminal defendant is entitled to “a plain, concise,
and definite written statement of the essential facts
constituting the offense charged.” Fed. R. Crim. P.
7(c)(1). This Court “ha[s] consistently upheld indictments
that do little more than to track the language of the
statute charged and state the time and place (in approximate
terms) of the alleged crime.” United States v. Pirro, 212
F.3d 86, 92 (2d Cir. 2000) (internal quotations omitted).
Here, the indictment tracked the language of Section 2339A
in alleging that Abu Ghayth provided and conspired to
provide “material support and resources-to wit,
personnel–knowing and intending that they were to be used in
preparation for, and in carrying out of, a violation of”
Section 2332(b). See id. It further explained Al Qaeda’s
core operations, the nature of the conspiracy, and how Abu
Ghayth provided material support in the form of personnel by
recruiting new members to jihad and by his own service as a
spokesman to generate propaganda for the organization’s
cause. The level of detail in the indictment is
unassailable under our Rule 7 standard.

     Abu Ghayth’s only remaining attack on the indictment is
his claim that “pure speech” cannot give rise to criminal
liability. However, “crimes under the federal criminal code
are, or can be, committed by speech alone.” United States
v. Rahman, 189 F.3d 88, 116-117 (2d Cir. 1999). In United

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States v. Stewart, the defendants were prosecuted for
material support of terrorism under Section 2339A. 590 F.3d
93, 115 (2d Cir. 2009). Stewart’s sole acts were the
conveying of messages between an imprisoned terrorist and
others. The argument that these acts of speech could not
satisfy the material provision of “personnel” under Section
2339A was rejected because that speech assisted with the
commission of the terror conspiracy. Id. Similarly here,
Abu Ghayth’s words in his speeches served as “the very
vehicle of a crime” by aiding in the commission of terrorist
acts. United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir.
1990). He told Muslims it was their duty to fight for Al
Qaeda, urged them to pledge loyalty to bin Laden, and
threatened future attacks against “new American targets ...
at the time that we pick, and the place that we pick, and
the method that we pick.” Far from “pure speech,” Abu
Ghayth’s words provided material support to Al Qaeda by
spreading its message to the world and encouraging others to
join its terrorist cause.

     For the foregoing reasons, and finding no merit in Abu
Ghayth’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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