12-953-cr
United States v. Ibrahim
                            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 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A 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 SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       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 12th day of July, two thousand thirteen.

PRESENT: RALPH K. WINTER,
         GERARD E. LYNCH,
         CHRISTOPHER F. DRONEY,
                        Circuit Judges.

————————————————————————

UNITED STATES OF AMERICA,

                                    Appellee,

                           v.                                           No. 12-953-cr

KAREEM IBRAHIM, AKA AMIR KAREEM,

                                    Defendant - Appellant,

RUSSELL DEFREITAS, AKA MOHAMMED,
ABDUL KADIR, ABDEL NUR,

                                    Defendants.*

————————————————————————




           *
        The Clerk of Court is respectfully directed to amend the official caption in this case
to conform with the caption above.
FOR APPELLANT:               MICHAEL OLIVER HUESTON, Law Offices of Michael O.
                             Hueston, New York, New York (Zoe Dolan, Law Offices of
                             Zoe Dolan, New York, New York, on the brief).

FOR APPELLEE:                MARSHALL MILLER, Assistant United States Attorney (Jo
                             Ann M. Navickas, Zainab Ahmad, and Berit W. Berger,
                             Assistant United States Attorneys, on the brief), for Loretta E.
                             Lynch, United States Attorney for the Eastern District of New
                             York, Brooklyn, New York.

       Appeal from the United States District Court for the Eastern District of New York

(Dora L. Irizarry, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Kareem Ibrahim appeals from the February 24, 2012 judgment

of the district court convicting him of various terrorism-related offenses and sentencing him

to life imprisonment.1 We assume the parties’ familiarity with the facts and procedural

history of this case, which we summarize only so far as is necessary to understand our

rulings.

       On the evidence presented at trial, the jury was entitled to find beyond a reasonable

doubt that Ibrahim and his co-conspirators Abdul Kadir, Russell Defreitas, and Abdel Nur,



       1
         Specifically, Ibrahim was sentenced to life imprisonment on Count One, which
charged him with conspiracy to bomb a public transportation system, in violation of 18
U.S.C. § 2332f(a)(2), (b)(1)(D), (b)(1)(E), (b)(2)(A), (b)(2)(C), and (c), and to concurrent 20-
year sentences on Counts Two through Five. Count Two charged Ibrahim with conspiracy
to destroy a building by fire or explosive, in violation of 18 U.S.C. § 844(i) and (n); Count
Three with conspiracy to attack aircraft and aircraft material, in violation of 18 U.S.C.
§ 32(a)(8); Count Four with conspiracy to destroy international airport facilities, in violation
of 18 U.S.C. § 37(a), (b)(1), and (b)(2); and Count Five with conspiracy to attack a mass
transportation facility, in violation of 18 U.S.C. § 1992(a)(10), (c)(1), and (c)(2).

                                               2
were planning to blow up John F. Kennedy International Airport (“JFK”) before their arrests

in 2007. Ibrahim joined the plot in May 2007 when Defreitas, a former shipping worker at

JFK, and Steven Francis, a confidential informant for the FBI, visited Ibrahim’s home in

Trinidad and told him of their plan. Ibrahim told them that he believed the plan could work

and advised them not to contact Yasin Abu Bakr, the leader of the militant Islamic group

Jamaat Al-Muslimeen (“JAM”) for financing, but instead to trust Ibrahim to present the plan

to his contacts in Iran. Ibrahim also gave them practical advice on evading the attention of

American authorities by communicating in code and limiting what they wrote down or put

in emails. After Defreitas left Trinidad he called Ibrahim, who confirmed that he was

arranging for an associate to travel to Iran to present the plot. In June 2007, Ibrahim was

arrested in Trinidad and eventually extradited to the United States.2

       At Ibrahim’s trial, Francis testified extensively about his involvement in the plot. The

government presented hours of video and audio recordings that Francis had made, capturing

Ibrahim and his co-conspirators planning the attack, as well as documents seized during

arrests and searches of the conspirators and their residences. Ibrahim testified at length on

his own behalf. He conceded that he had expressed his agreement to join the conspiracy but




       2
        Defreitas, Kadir, and Nur were also arrested. Ibrahim’s trial was severed and
postponed so that he could receive medical treatment. Defreitas and Kadir were convicted
on the same five counts as Ibrahim and were sentenced to life imprisonment. Their
convictions and sentences were recently affirmed in United States v. Kadir, --- F.3d ---, 2013
WL 2360980 (2d Cir. 2013). Nur pleaded guilty to providing material support to a terrorist
group and was sentenced to 180 months’ imprisonment. Id. at *2.

                                              3
argued that he did not mean what he had said and only went along with the plot out of fear

for his safety. He claimed that he had hoped the plot would “just . . . fizzle out.”

       Ibrahim raises six arguments on appeal: (1) that his testimony was improperly limited,

(2) that evidence seized from his Kadir’s home was improperly admitted, (3) that the

testimony of Dr. Matthew Levitt, a terrorism expert, was improperly admitted, (4) that there

was insufficient evidence to sustain his conviction, (5) that his life sentence is procedurally

and substantively unreasonable, and (6) that the district court erred in empaneling an

anonymous jury.

I.     Ibrahim’s Testimony

       Ibrahim argues that his trial testimony was improperly restricted. First, Ibrahim

alleges that he should have been allowed to submit the complete version of a redacted

affidavit that the government introduced at trial. While cross-examining Ibrahim, the

government offered portions of an affidavit he had submitted to a Trinidadian court in

connection with his extradition proceedings, which were inconsistent with Ibrahim’s trial

testimony.   Ibrahim argues that the entire affidavit should have been admitted for

completeness under Federal Rule of Evidence 106, which permits the admission of additional

portions of statements that are “necessary to explain the admitted portion, to place it in

context, . . . to avoid misleading the trier of fact, or to ensure a fair and impartial

understanding of the admitted portion.” United States v. Marin, 669 F.2d 73, 84 (2d Cir.

1982) (internal quotation marks and citations omitted). The district court correctly held that

the portions of the affidavit that Ibrahim wished to introduce were not necessary to place the



                                              4
admitted portion in context, and were simply self-serving hearsay. Further, any error was

harmless, as the jury had before it the tapes of the conversation Ibrahim described in the

redacted portion of the affidavit.

       Second, Ibrahim argues that his testimony was improperly limited by a series of

objections that the district court sustained. After careful review of Ibrahim’s testimony, we

conclude that Ibrahim was able to testify on all subjects on which the district court sustained

objections, often by answering similar, rephrased questions. To the extent that the district

court erred in sustaining an objection to the question “Did [Assim] tell you that they wanted

to blow up the airport?” because the answer would have gone to Ibrahim’s state of mind and

therefore would not have been inadmissible hearsay, any error was certainly harmless, as

Ibrahim was able to testify in detail about the extent of his knowledge or ignorance of all

aspects of the plot.

II.    Evidence Seized From Kadir’s Home

       Ibrahim argues that the district court improperly admitted documents seized during

the search of Kadir’s home, contending that they were irrelevant to the case and highly

prejudicial. In conspiracy cases, we routinely uphold the introduction of documentary

evidence demonstrating links between co-conspirators, see United States v. Mishkin, 317

F.2d 634, 637 (2d Cir. 1963), evidencing motive, see United States v. Salameh, 152 F.3d 88,

111 (2d Cir. 1998), or providing “background information necessary to the jury’s

understanding of the nature of the conspiratorial agreement,” id. The district court explained

in a thoughtful written opinion why all of the challenged evidence fell into one of these three



                                              5
categories, and concluded that the probative value of the admitted evidence outweighed any

unfair prejudice to Ibrahim. The district court did not abuse its discretion in admitting such

evidence, see id. at 110-11, and gave the jury the proper limiting instruction to consider the

documents only for the purposes for which they were admitted.

III.   Expert Testimony of Dr. Matthew Levitt

       At trial, Dr. Matthew Levitt, an expert on terrorist groups, testified about the

structures and methods of JAM, Hezbollah, and Al Qaeda. Ibrahim argues that Levitt’s

testimony was improperly used to buttress argument about his relationship with Kadir and

that the testimony regarding JAM was irrelevant and impermissibly went to the issue of

criminal intent. We review a district court’s decision to admit expert testimony for abuse of

discretion. United States v. Massino, 546 F.3d 123, 132 (2d Cir. 2008). Provided the district

court “has conscientiously balanced the proffered evidence’s probative value with the risk

for prejudice,” pursuant to Federal Rule of Evidence 403, “its conclusion will be disturbed

only if it is arbitrary or irrational.” United States v. Al–Moayad, 545 F.3d 139, 159-60 (2d

Cir. 2008) (internal quotation marks omitted).

       Levitt’s testimony about Mohsen Rabbani, an Iranian operative who masterminded

a terrorist bombing in Argentina in 1994, was relevant, as the government sought to show

that Ibrahim and his coconspirators were seeking Iranian backers to fund their plot. Levitt’s

testimony about the terrorist groups was properly admitted because, as we noted in Kadir,

the testimony was “probative of the intent element of the charged conspiracies” because the

government alleged that Ibrahim and his coconspirators intended to obtain support from the


                                              6
groups “and/or identified with their goals,” and the testimony was not “unfairly prejudicial.”

2013 WL 2360980, at *4. To the extent that Ibrahim argues that Levitt’s testimony

improperly went to criminal intent, Levitt never testified to any inferences of his own about

Ibrahim’s mental state, and nothing prohibited Levitt from testifying to facts or opinions from

which the jury could infer that Ibrahim had the requisite mental state. See United States v.

DiDomenico, 985 F.2d 1159, 1165 (2d Cir. 1993). To the extent that Ibrahim argues that the

testimony was unfairly prejudicial, we described Levitt’s testimony at the co-defendants’ trial

as “dry and academic, [and] devoid of vivid imagery that might excite the jury.” 2013 WL

2360980, at *3. The same was true here.

IV.    Sufficiency of Evidence

       Ibrahim argues that the evidence presented at trial was insufficient to show that he

intended to join the plot. “We may overturn the convictions on this basis only if, viewing

the evidence in the light most favorable to the government, no ‘rational trier of fact’ could

have found that the government established the essential elements of the crimes beyond a

reasonable doubt.” United States v. Nouri, 711 F.3d 129, 144 (2d Cir. 2013), quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, the government provided ample

evidence from which a jury could find that Ibrahim knowingly and intentionally joined the

conspiracy, including the detailed testimony of his coconspirator Steven Francis and

numerous recordings of conversations and telephone calls during which Ibrahim

demonstrated his intent. Moreover, the jury heard Ibrahim’s own explanation of his actions,

and had the opportunity to judge his credibility against that of Francis and the rest of the

                                              7
evidence. “Taken in the light most favorable to the prosecution and drawing all reasonable

inferences and credibility determinations in its favor, we conclude that this evidence was

legally sufficient for a rational jury to conclude that” Ibrahim committed the charged

offenses. United States v. Al Kassar, 660 F.3d 108, 129 (2d Cir. 2011).

V.     Reasonableness of Sentence

       A.     Procedural Challenge

       Ibrahim challenges his sentence on three procedural grounds: (1) that the district court

should not have applied a terrorism enhancement to his sentence; (2) that the district court’s

finding of obstruction of justice was speculative; and (3) that the application of the two

enhancements violated Apprendi v. New Jersey, 530 U.S. 466 (2000). These arguments are

unavailing.

       The district court properly applied both the terrorism and obstruction of justice

enhancements. The terrorism enhancement applies to offenses that “involved” or were

“intended to promote” a “federal crime of terrorism,” U.S.S.G. § 3A1.4, defined as violations

that are “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).3 It is

undisputed that Ibrahim was convicted of federal crimes of terrorism, and the evidence

presented at trial showed that Ibrahim was involved in or intended to promote these crimes,



       3
         U.S.S.G. § 3A1.4 provides that “[f]or purposes of this guideline, ‘federal crime of
terrorism’ has the meaning given that term in 18 U.S.C. 2332b(g)(5).” U.S.S.G. § 3A1.4
cmt.1.

                                              8
which were intended to influence by means of intimidation and to retaliate against the

government of the United States of America. To assess an enhancement for obstruction of

justice based on false testimony, “a sentencing court must find that the defendant 1) willfully

2) and materially 3) committed perjury, which is (a) the intentional (b) giving of false

testimony (c) as to a material matter.” United States v. Salim, 549 F.3d 67, 72 (2d Cir.

2008) (internal quotation marks omitted).         The district court properly applied the

enhancement based on a detailed analysis of Ibrahim’s perjurious testimony at trial, noting

that “the defendant’s lies were so brazen and so abundant” that it was “almost difficult to

know where to start.”

       The application of the two enhancements by the district court without jury findings

as to the supporting facts did not violate Apprendi. Because the Sentencing Guidelines are

advisory rather than mandatory, see United States v. Booker, 543 U.S. 220 (2005),

application of guidelines enhancements that do not increase the statutory maximum or

minimum penalty neither implicates nor violates a defendant’s Sixth Amendment right to a

jury trial. See Alleyne v. United States, --- U.S. ---, 2013 WL 2922116, at *11-12 (2013)

(holding that facts that increase mandatory minimum sentences must be submitted to the jury,

but emphasizing that ruling “does not mean that any fact that influences judicial discretion”

when imposing a sentence within the range prescribed by statute must be found by a jury);

see also United States v. Singletary, 458 F.3d 72, 80 (2d Cir. 2006) (holding that judicial

factfinding at sentencing is “permissible – indeed, required – under an advisory Guidelines

regime”). The relevant statute here provides for imprisonment “for any term of years or for

                                              9
life,” 18 U.S.C. § 2332a(a), and the district court’s application of the enhancements affected

only the Guidelines recommendation and not the statutory sentencing range.4

       B.     Substantive Challenge

       Ibrahim also argues that his sentence was substantively unreasonable. “In reviewing

the substantive reasonableness of a sentence, ‘we take into account the totality of the

circumstances, giving due deference to the sentencing judge’s exercise of discretion, and

bearing in mind the institutional advantages of district courts.’” United States v. Chu, 714

F.3d 742, 746 (2d Cir. 2013), quoting United States v. Cavera, 550 F.3d 180, 190 (2d Cir.

2008) (en banc). We will set aside a district court’s sentence on substantive grounds “only

in exceptional cases where the trial court’s decision cannot be located within the range of

permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted).

       The district court’s sentence is well within the range of permissible decisions in these

circumstances. As we noted in Kadir, Ibrahim and his co-conspirators “were convicted of

conspiring to explode pipelines and jet-fuel tanks at JFK Airport in order to kill countless

Americans and other travelers, disrupt air travel, and harm the American economy. The

gravity of the crimes for which they were convicted easily justifies the life sentences that

were imposed.” 2013 WL 2360980, at *8.



       4
          To the extent that Ibrahim argues that the district court could not have properly
applied the enhancements because Ibrahim’s trial testimony was unfairly restricted, we have
rejected the premise of this argument above, concluding that Ibrahim had ample opportunity
to testify at trial about all relevant subjects. Ibrahim was also provided an opportunity to
make a statement at sentencing but chose to waive that opportunity.

                                              10
VI.    Anonymous Jury

       Ibrahim argues that an anonymous jury was not warranted. “If a district court has

taken reasonable precautions to protect a defendant’s fundamental rights, we review its

decision to empanel an anonymous jury for abuse of discretion.” Id. at *2. “A district court

may order the empaneling of an anonymous jury upon (a) concluding that there is strong

reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize

any prejudicial effects on the defendant and to ensure that his fundamental rights are

protected.” Id. (internal quotation marks omitted). As in Kadir, given the extensive media

coverage of the case and the serious nature of the charges, “[t]he district court reasonably

concluded that the jurors would be fearful if their identities were revealed to these

defendants.” Id. at *3.5 While Ibrahim does not challenge the precautions the district court

took to protect his rights, we note that they seem to have been identical to those found

sufficient in Kadir.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




       5
         In Kadir, Defreitas had also threatened to harm potential witnesses. However, we
did not rely on this fact in upholding the use of the anonymous jury, noting that “because
there were sufficient independent grounds for empaneling an anonymous jury,” we did not
need to consider the alleged threats. 2013 WL 2360980, at *3.

                                             11
