     10-3916-cr
     United States v. Siddiqui
 1
 2                      UNITED STATES COURT OF APPEALS
 3
 4                           FOR THE SECOND CIRCUIT
 5
 6
 7
 8                                 August Term, 2011
 9
10   (Argued: February 10, 2012                  Decided: November 5, 2012)
11
12                               Docket No. 10-3916-cr
13
14
15                         UNITED STATES OF AMERICA,
16
17                                                                     Appellee,
18
19                                       –v.–
20
21                                  AAFIA SIDDIQUI,
22
23                                                      Defendant-Appellant.*
24
25
26
27   Before:
28    WESLEY, CARNEY, Circuit Judges, MAUSKOPF, District Judge.**
29
30        Defendant-Appellant Aafia Siddiqui appeals her criminal
31   convictions, entered after a jury trial in the United States
32   District Court for the Southern District of New York
33   (Berman, J.), for attempted murder of United States
34   nationals, attempted murder of United States officers and
35   employees, armed assault of United States officers and
36   employees, assault of United States officers and employees,
37   and use of a firearm during a crime of violence. She also
38   challenges her sentence of eighty-six years’ imprisonment.
39   Siddiqui contends that the district court erred in a number

           *
            The Clerk of the Court is respectfully directed to amend the caption to
     conform with the above.
           **
            The Honorable Roslynn R. Mauskopf, of the United States District Court
     for the Eastern District of New York, sitting by designation.
 1   of ways. We address five of Siddiqui’s arguments here:(1)
 2   that Count One of the indictment was deficient because the
 3   Attorney General failed to timely issue a required
 4   certification for prosecution under 18 U.S.C. § 2332, and
 5   because the statutes underlying Counts Two through Seven do
 6   not apply extraterritorially in an active theater of war;
 7   (2) that the district court committed reversible error by
 8   admitting, under Federal Rule of Evidence 404(b), documents
 9   allegedly found in her possession at the time Afghan
10   officials took her into custody; (3) that the district court
11   erred in allowing her to testify in her own defense despite
12   a request from defense counsel to preclude her from doing so
13   because of her alleged mental illness; (4) that the district
14   court erred in allowing the government to rebut her
15   testimony with un-Mirandized statements she gave to FBI
16   agents while hospitalized at Bagram Airfield because those
17   statements allegedly were not voluntary; and (5) that the
18   district court erred in applying the terrorism enhancement
19   under section 3A1.4 of the United States Sentencing
20   Guidelines. We address Siddiqui’s remaining arguments in an
21   accompanying summary order.
22
23       AFFIRMED.
24
25
26
27            DAWN M. CARDI (Chad L. Edgar, on the brief), Dawn
28                 M. Cardi & Associates, New York, NY, for
29                 Defendant-Appellant.
30
31            JENNA M. DABBS, Assistant United States Attorney
32                 (Christopher L. Lavigne, Jesse M. Furman,
33                 Assistant United States Attorneys, on the
34                 brief), for Preet Bharara, United States
35                 Attorney for the Southern District of New
36                 York, New York, NY, for Appellee.
37
38
39
40   WESLEY, Circuit Judge:

41       Defendant-Appellant Aafia Siddiqui appeals from a

42   judgment of the United States District Court for the

                                  2
 1   Southern District of New York (Berman, J.) entered on

 2   September 23, 2010, convicting her after a jury trial of one

 3   count of attempted murder of United States nationals in

 4   violation of 18 U.S.C. § 2332(b)(1); one count of attempted

 5   murder of United States officers and employees in violation

 6   of 18 U.S.C. § 1114(3); one count of armed assault of United

 7   States officers and employees in violation of 18 U.S.C. §§

 8   111(a)(1) and (b); one count of using a firearm during a

 9   crime of violence in violation of 18 U.S.C. § 924(c); and

10   three counts of assault of United States officers and

11   employees in violation of 18 U.S.C. § 111(a)(1).   The

12   district court sentenced her principally to 86 years’

13   imprisonment.   Siddiqui urges this Court to reverse her

14   convictions and, failing that, to vacate her sentence.     We

15   address five of the arguments that Siddiqui raises on appeal

16   here and the remaining issues in an accompanying summary

17   order.

18                           I. BACKGROUND

19   A. Offense Conduct

20       Around dusk on July 17, 2008, Afghan National Police

21   (“ANP”) detained Aafia Siddiqui, a United States-educated

22   Pakistani national, in Ghazni City, Afghanistan, on


                                   3
 1   suspicion of attempting to attack the Governor of Ghazni.

 2   When police took her into custody, Siddiqui possessed, among

 3   other things, various documents that discussed the

 4   construction of weapons, referenced a “mass casualty

 5   attack,” and listed a number of New York City landmarks.

 6   Afghan authorities brought Siddiqui to an ANP facility for

 7   questioning.   Later that evening, the Governor of Ghazni

 8   delivered the materials found in Siddiqui’s possession to

 9   the United States Army.

10       The following morning, the United States dispatched a

11   team to the ANP facility with the objective of interviewing

12   Siddiqui and ultimately taking her into American custody.

13   The team–most dressed in military fatigues–consisted of two

14   FBI agents and members of a military special forces unit.

15   Afghan officials brought the team to a poorly lit room

16   partitioned by a yellow curtain.   The room was crowded with

17   Afghan officials, and unbeknownst to the Americans, Siddiqui

18   was sequestered unrestrained behind the curtain.

19       The presence of a large number of Afghan officials led

20   members of the American team to believe that they had been

21   brought to the room to discuss the terms of their access to

22   Siddiqui.   One of the team members, a Chief Warrant Officer,


                                   4
 1   moved to a chair near the curtain dividing the room.     After

 2   quickly glancing behind the curtain and seeing nothing, he

 3   set down his M-4 rifle and turned to engage the Afghan

 4   officials in conversation.     Moments later, Siddiqui gained

 5   control of the rifle, aimed it at members of the American

 6   team, shouted, and fired.    The team’s interpreter lunged at

 7   and struggled with Siddiqui.     As the interpreter wrestled

 8   with her, the Chief Warrant Officer drew his sidearm and

 9   shot Siddiqui in the stomach.

10       Team members then attempted to restrain Siddiqui, who

11   was fiercely resisting and screaming anti-American

12   statements.   One witness recalled Siddiqui stating, “I am

13   going to kill all you Americans.     You are going to die by my

14   blood.”   Another recounted that Siddiqui yelled “death to

15   America” and “I will kill all you motherfuckers.”

16       Eventually, the Americans were able to subdue Siddiqui

17   enough to begin to render emergency medical aid to her.

18   After providing preliminary treatment at the scene, the

19   Americans transported her to a number of military bases in

20   Afghanistan to undergo surgery and receive further care.        On

21   July 19, 2008, American forces moved Siddiqui to Bagram

22   Airfield to recuperate.



                                     5
 1       While recovering at Bagram, Siddiqui was guarded by an

 2   FBI team.     She was tethered to her hospital bed in soft

 3   restraints.     During the course of her stay at Bagram,

 4   Siddiqui provided a number of incriminating, un-Mirandized

 5   statements to two members of the security team.        In

 6   particular, she (1) asked about the penalty for attempted

 7   murder; (2) stated that she had a number of documents in her

 8   possession at the time of her arrest and recognized some of

 9   them when shown to her; (3) said that she had picked up a

10   rifle with the intention of scaring the American team and

11   escaping; and (4) noted that “spewing” bullets at Americans

12   was a bad thing.

13       The government filed a sealed criminal complaint

14   against Siddiqui in the Southern District of New York on

15   July 31, 2008.     On August 4, 2008, the government

16   transferred Siddiqui to the United States for prosecution.

17   A month later, Siddiqui was indicted.

18   B. Pre-Trial

19       Soon after the indictment was filed, the district court

20   ordered that Siddiqui undergo psychiatric evaluations of her

21   competence to stand trial.     In a report issued on November

22   6, 2008, Dr. Leslie Powers opined that Siddiqui was not


                                     6
 1   currently competent, citing, among other things, Siddiqui’s

 2   reports of visual hallucinations.          Later, Dr. Powers revised

 3   her assessment, finding that Siddiqui was malingering to

 4   avoid prosecution.      Other experts arrived at the same

 5   conclusion, although one expert commissioned by the defense

 6   opined that Siddiqui was not competent.            The district court

 7   held a competency hearing on July 6, 2009.             After canvassing

 8   the relevant evidence, the court found Siddiqui competent to

 9   stand trial.

10       In advance of trial, the district court ruled on a

11   number of motions, some of which are relevant here.

12   Siddiqui first moved to dismiss all of the counts of the

13   indictment.    As to Count One, Siddiqui claimed that the

14   Attorney General failed to timely issue the required written

15   certification that her offense (attempted murder of United

16   States nationals) “was intended to coerce, intimidate, or

17   retaliate against a government or a civilian population.”1

18   18 U.S.C. § 2332(d).       Siddiqui also contended that Counts

19   Two through Seven, charging violations of 18 U.S.C. §§ 1114,

20   111, and 924(c), should be dismissed because the statutes do

21   not have extraterritorial application under the


         1
          The certification was filed on the same day as the indictment.

                                         7
 1   circumstances of her case.   The district court denied

 2   Siddiqui’s motions.

 3       The district court also considered the government’s

 4   motion in limine to admit certain documents and other

 5   evidence recovered from Siddiqui at the time of her arrest

 6   by Afghan officials.   These documents, some of which were in

 7   Siddiqui’s handwriting and bore her fingerprints, referred

 8   to attacks on the United States and the construction of

 9   various weapons.   The court found this evidence admissible

10   pursuant to Federal Rule of Evidence 404(b) to show

11   Siddiqui’s “motive, intent, identity, and knowledge.”     In

12   finding the documents admissible, the court rejected the

13   argument that the evidence would cause Siddiqui unfair

14   prejudice, concluding that the documents were no more

15   sensational than the crimes charged.   The court also noted

16   that it would instruct the jury that the documents were not

17   to be considered as propensity evidence.

18   C. Trial

19       At trial, the government presented six members of the

20   American interview team who testified that Siddiqui gained

21   control of the Chief Warrant Officer’s rifle and fired at

22   them.   Three more witnesses who did not directly observe the


                                   8
 1   shooting testified that they heard M-4 rifle shots.                 A

 2   government expert testified that the fact that no gunpowder

 3   residue was found on the curtain hanging in the room did not

 4   necessarily indicate that an M-4 had not been fired because

 5   someone standing between the curtain and the weapon could

 6   have absorbed the residue.          The government also introduced

 7   the 404(b) documents discussed above.2

 8         The defense put forth a forensic metallurgist who,

 9   based on the lack of forensic evidence of a discharge of a

10   M-4 rifle at the crime scene, testified that he did not

11   believe an M-4 had been fired in the room.               In particular,

12   he found it implausible that someone could discharge an M-4

13   rifle in a room without bullet fragments or gunpowder

14   residue being recovered by authorities.              The defense also

15   introduced deposition testimony of an ANP officer that when

16   Siddiqui was arrested she possessed documents describing how

17   to make explosive devices, among other things, and that

18   while in Afghani custody she made anti-American statements

19   and asked not be turned over to the United States.                 He also



           2
             The district court gave a limiting instruction to the jury, informing
     them that they could not consider the documents as proof that Siddiqui was
     predisposed to commit the crimes charged. The district court made clear that
     the documents could only be considered to the extent they demonstrated
     Siddiqui’s motive, intent, or knowledge.

                                           9
 1   stated that he saw an American soldier walk behind the

 2   curtain prior to hearing shots fired, although he did not

 3   directly observe the shooting.3           Significantly, the officer

 4   testified that he observed a technician remove two rifle

 5   shells from the scene.

 6         Against the advice and over the objection of her

 7   attorneys, Siddiqui took the stand to testify in her own

 8   defense.4    Though her testimony at times lacked focus, she

 9   was able to provide her version of the events that

10   transpired on July 18, 2008.           According to Siddiqui, she was

11   sitting behind a curtain in a room at the ANP facility when

12   she heard American voices.          She feared being taken into

13   American custody and peeked through an opening in the

14   curtain with the hope of finding an escape route.                 Siddiqui

15   testified that she was then shot from multiple directions.


           3
            The government elicited admissions from the officer that he previously
     gave inconsistent statements to American investigators.
           4
            Defense counsel viewed this as a disastrous decision, and went so far
     as to make an application to the court to prevent Siddiqui from testifying.
     In their view, Siddiqui suffered from diminished capacity, such that she did
     not appreciate the risks inherent in testifying. Further, based on previous
     outbursts during the proceedings, they feared that Siddiqui would “turn the
     [trial] into a spectacle,” thus alienating the jury and damaging her prospects
     for acquittal. Prior to Siddiqui’s testimony, the defense held an ex parte
     conference with the judge where they aired their concerns. The judge then
     opened the courtroom to the public, and Siddiqui indicated on the record that
     she understood (1) that testifying was a significant decision, and one that
     her counsel had unanimously recommended against; (2) that her testimony had to
     be relevant; (3) that if she veered off into tangential topics the court may
     stop her testimony; and (4) that by testifying she would be subject to an
     intense cross-examination aimed at undercutting her testimony.

                                          10
 1   She stated that she never picked up, aimed, or fired an M-4

 2   rifle at the Americans.

 3         Siddiqui claimed that she could not confirm that she

 4   possessed documents at the time of her arrest in Afghanistan

 5   because she was “in a daze.”           JA 2371.     She stated that the

 6   bag in which the documents were found was not hers but

 7   rather was given to her.         When confronted with the document

 8   referencing mass casualty attacks and listing New York City

 9   landmarks, Siddiqui testified that it was a “possibility”

10   that the document was in her own handwriting.                JA 2372.

11         After the defense rested, the government presented its

12   rebuttal case.      Two FBI agents who were members of

13   Siddiqui’s security detail during her recovery at Bagram

14   recounted several incriminating statements that Siddiqui

15   made to them.      Before receiving this testimony, the district

16   court held a hearing to determine whether Siddiqui gave

17   these un-Mirandized statements voluntarily.5               At that

18   hearing, the two FBI agents testified, as did Siddiqui.                   The

19   district court determined that Siddiqui’s statements were

20   voluntary.


           5
            The court conducted this voluntariness inquiry prior to admitting
     Siddiqui’s testimony, and the government asked Siddiqui about her statements
     during its cross-examination in an attempt to impeach her. On cross-
     examination, she denied she made the statements.

                                          11
 1       On February 3, 2010, the jury returned a guilty verdict

 2   on all counts of the indictment.        The district court

 3   sentenced Siddiqui on September 23, 2010.        In addition to a

 4   number of other enhancements, the court applied the

 5   terrorism enhancement pursuant to U.S.S.G. § 3A1.4.          In

 6   applying the enhancement, the court found that Siddiqui’s

 7   offense was calculated to influence the conduct of the

 8   government by intimidation, namely, attempting to frustrate

 9   the interview team’s efforts to detain her.        Further, based

10   on a number of anti-American statements Siddiqui made before

11   and at the time of the shooting, the court determined that

12   Siddiqui’s conduct was calculated to retaliate against the

13   United States government.   The district court sentenced

14   Siddiqui principally to 86 years’ imprisonment and five

15   years of supervised release.

16       Siddiqui timely appealed her convictions and sentence.

17                          II. DISCUSSION

18   A. Denial of Siddiqui’s Motion to Dismiss the Indictment

19       Siddiqui raised below, and now reasserts, several

20   challenges to the indictment.        According to Siddiqui, the

21   district court should have dismissed Count One, which

22   charged a violation of 18 U.S.C. § 2332, because the United


                                     12
 1   States Attorney General did not timely issue the

 2   certification required by 18 U.S.C. § 2332(d).        She also

 3   argues that the remaining counts are deficient because the

 4   underlying statutes do not apply extraterritorially in an

 5   active theater of war.    We disagree.

 6       Section 2332(d) provides that “[n]o prosecution for any

 7   offense described in this section shall be undertaken by the

 8   United States except on written certification of the

 9   Attorney General . . . [that] such offense was intended to

10   coerce, intimidate, or retaliate against a government or

11   civilian population.”    Siddiqui relies on speedy trial

12   principles to conclude that a prosecution is commenced at

13   the time of arrest or the filing of formal charges.          But

14   Siddiqui’s argument here encounters an obstacle: the

15   original complaint on which Siddiqui was arrested did not

16   charge a violation of § 2332.        The first instrument to do so

17   was the indictment, which was filed the same day the

18   Attorney General issued the § 2332(d) certification.

19       Siddiqui has an answer to the problem.        She points out

20   that the statute requires certification prior to a

21   prosecution for an “offense described in this section.”            18

22   U.S.C. § 2332(d) (emphasis added).        In her view, the


                                     13
 1   Attorney General is required to issue the certification

 2   before an accusatory instrument describing facts that could

 3   constitute a violation of § 2332 is filed, regardless of

 4   whether that instrument actually charges a violation of

 5   § 2332.   Siddiqui reasons that because the criminal

 6   complaint filed on July 31, 2008 described conduct

 7   proscribed by § 2332, the Attorney General’s certification

 8   filed the day of the indictment was untimely.

 9       Siddiqui’s argument offers an unusual reading of what

10   appears to be straightforward statutory language—a reading

11   that would undercut the very purpose of the provision.

12   Section 2332(d)’s requirement that the Attorney General

13   issue a certification before “prosecution for any offense

14   described in [§ 2332] shall be undertaken” is most naturally

15   read as a requirement that the Attorney General issue the

16   certification either at the time of or before the filing of

17   the first instrument charging a violation of § 2332.     This

18   view furthers the purpose of § 2332(d)—namely, ensuring that

19   the statute reaches only terrorist violence inflicted upon

20   United States nationals, not “[s]imple barroom brawls or

21   normal street crime.”   See H.R. Conf. Rep. 99-783, at 87,

22   reprinted in 1986 U.S.C.C.A.N. 1926, 1960.


                                   14
 1         Under Siddiqui’s interpretation of the provision, the

 2   Attorney General would have to issue the certification any

 3   time someone engaged in conduct that could be covered by the

 4   statute.     This would deprive the Attorney General of the

 5   opportunity to sort through the facts of each case to

 6   determine if it merited certification—and prosecution—under

 7   the statute.      More simply put, Siddiqui’s interpretation

 8   would undercut § 2332(d)’s primary objective.                 Accordingly,

 9   the district court did not err in denying Siddiqui’s motion

10   to dismiss Count One of the indictment.

11         Siddiqui next contends that Counts Two through Seven of

12   the indictment should be dismissed because the charging

13   statutes—18 U.S.C. §§ 1114,6 111,7 and 924(c)8—do not have

14   application extraterritorially “in an active theater of

15   war.”    This argument is without merit.

16         “Congress has the authority to ‘enforce its laws beyond

17   the territorial boundaries of the United States.’”                  United

18   States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (quoting

           6
             18 U.S.C. § 1114 prohibits the murder or attempted murder of any United
     States officer or employee while such officer or employee is engaged in, or on
     account of, his or her official duties.
           7
             18 U.S.C. § 111 punishes those who assault, resist, oppose, impede,
     intimidate, or interfere with a United States officer or employee while he or
     she is engaged in, or on account of, his or her official duties.
           8
             18 U.S.C. § 924(c) prohibits the use of a firearm during the commission
     of a crime of violence.

                                           15
 1   EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)).         The

 2   ordinary presumption that laws do not apply

 3   extraterritorially has no application to criminal statutes.

 4   United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir.

 5   2011).   “When the text of a criminal statute is silent,

 6   Congressional intent to apply the statute extraterritorially

 7   must ‘be inferred from the nature of the offense.’”       Id.

 8   (quoting United States v. Bowman, 260 U.S. 94, 98 (1922)).

 9       The statutes underlying Counts Two through Seven apply

10   extraterritorially.   Subsequent to the filing of Siddiqui’s

11   brief, we held that 18 U.S.C. § 1114 applies

12   extraterritorially.   Al Kassar, 660 F.3d at 118.    We

13   reasoned that “the nature of the offense–protecting U.S.

14   personnel from harm when acting in their official

15   capacity–implies an intent that [the statute] apply outside

16   of the United States.”   Id.   We see no basis for expecting

17   Congress to have intended to limit these protections to U.S.

18   personnel acting within the United States only.     For the

19   same reason, § 111 applies extraterritorially.      See United

20   States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir. 1984);

21   see also United States v. Hasan, 747 F. Supp. 2d 642, 685-86

22   (E.D. Va. 2010).   Like 18 U.S.C. § 1114, the nature of the


                                    16
 1   offense–protecting United States officers and employees

 2   engaged in official duties from harm–implies a Congressional

 3   intent that § 111 apply outside of the United States.                  See

 4   Al Kassar, 660 F.3d at 118.

 5         As for § 924, which criminalizes the use of a firearm

 6   during commission of a crime of violence, every federal

 7   court that has considered the issue has given the statute

 8   extraterritorial application where, as here, the underlying

 9   substantive criminal statutes apply extraterritorially.

10   See, e.g., United States v. Belfast, 611 F.3d 783, 815 (11th

11   Cir. 2010); United States v. Ahmed, No. 10 Cr. 131 (PKC),

12   2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012); United

13   States v. Mardirossian, 818 F. Supp. 2d 775, 776-77

14   (S.D.N.Y. 2011).       We see no reason to quarrel with their

15   conclusions.

16         Siddiqui’s argument that the statutes, even if

17   generally extraterritorial, do not apply “in an active

18   theater of war” is unpersuasive.9           As the government points

           9
            Indeed, this argument is premised on a misreading of a number of cases.
     Siddiqui contends that international law “allow[s] an occupying force to try
     unlawful belligerents only in a military commission,” see Siddiqui Br. 66, and
     thus extraterritorial application of the statutes at issue would run afoul of
     the general presumption that Congress intends its statutes to comport with
     international law. But the portion of Ex parte Quirin, 317 U.S. 1, 30 (1942),
     that Siddiqui cites merely stands for the more pedestrian observation that
     unlawful combatants, unlike lawful combatants, may be subjected to trial
     before a military commission. Moreover, the case Siddiqui cites for the
     proposition that “[a]t least one court has expressed reservation about

                                          17
 1   out, it would be incongruous to conclude that statutes aimed

 2   at protecting United States officers and employees do not

 3   apply in areas of conflict where large numbers of officers

 4   and employees operate.         The district court appropriately

 5   denied Siddiqui’s motion to dismiss Counts Two through Seven

 6   of the Indictment.

 7   B. Admission of Documents under Federal Rule of Evidence
 8   404(b)
 9
10          The district court admitted documents allegedly found

11   in Siddiqui’s possession that explained the construction and

12   use of various weapons and described a “mass casualty

13   attack” on a number of New York City landmarks for the

14   purpose of demonstrating Siddiqui’s knowledge, motive, and

15   intent.    Siddiqui argues that her defense–that she never

16   picked up and fired the Chief Warrant Officer’s

17   rifle–removed those issues from the case and thus admission

18   of the documents was improper.

19         A district court’s evidentiary rulings encounter

20   trouble on appeal only where the district court abuses its

21   discretion.     United States v. Mercado, 573 F.3d 138, 141 (2d


     extending the extraterritorial reach of § 1114 into Afghanistan because of the
     sensitive state of the relationship between the two nations,” see Siddiqui Br.
     65-66, does not mention § 1114 at all. Instead, the case addressed whether
     federal courts had jurisdiction to afford habeas corpus relief and the
     protection of the Suspension Clause to aliens held in Executive detention at
     Bagram Airfield. Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010).

                                          18
 1   Cir. 2009).      A district court abuses its discretion when

 2   its evidentiary rulings are “arbitrary and irrational.” Id.

 3   But even when an evidentiary ruling is “manifestly

 4   erroneous,” the defendant will not receive a new trial if

 5   admission of the evidence was harmless.             Cameron v. City of

 6   New York, 598 F.3d 50, 61 (2d Cir. 2010).

 7        Federal Rule of Evidence 404(b) provides that evidence

 8   of a defendant’s prior crimes, wrongs, or other acts cannot

 9   be used to prove that a defendant was a bad fellow and most

10   likely remains one–that he has a criminal nature or

11   propensity and the acts in question are consistent with his

12   nature or tendency towards crime.           However, this type of

13   evidence may be admissible for other legitimate purposes,

14   such as demonstrating motive, opportunity, identity, intent,

15   and knowledge.      Id.   Under our “inclusionary” approach, all

16   “other act” evidence is generally admissible unless it

17   serves the sole purpose of showing a defendant’s bad

18   character.     United States v. Curley, 639 F.3d 50, 56 (2d

19   Cir. 2011).10

20


          10
            Of course, the strictures of Federal Rules of Evidence 401, 402, and
     403 still apply to Rule 404(b) evidence. The evidence must be relevant to an
     issue in dispute, and its probative value must outweigh the risk of unfair
     prejudice. See United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989).

                                          19
 1       A defendant may, however, forestall the admission of

 2   Rule 404(b) evidence by advancing a theory that makes clear

 3   that the object the 404(b) evidence seeks to establish,

 4   while technically at issue, is not really in dispute.      See

 5   United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989).

 6   For example, a defense theory that the defendant did not

 7   commit the charged act effectively removes issues of intent

 8   and knowledge from the case.    See id at 657; United States

 9   v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988).   Siddiqui’s

10   defense was just that–“I didn’t fire the M-4.”

11       But even assuming that Siddiqui’s defense theory

12   effectively removed any issue of her intent or knowledge,

13   the documentary evidence remained relevant to demonstrate

14   Siddiqui’s motive.   Motive has been variously defined as

15   “the reason that nudges the will and prods the mind to

16   indulge the criminal intent,” United States v. Benton, 637

17   F.2d 1052, 1056 (5th Cir. 1981) (internal quotation marks

18   omitted); “the rationale for an actor’s particular conduct,”

19   United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010); and

20   “an emotion or state of mind that prompts a person to act in

21   a particular way,” Charles Alan Wright and Kenneth W.

22   Graham, Jr., Federal Practice and Procedure: Federal Rules


                                    20
 1   of Evidence § 5240.     “Although it does not bear directly on

 2   the charged elements of a crime, evidence offered to prove

 3   motive is commonly admitted.”        United States v. Salameh, 152

 4   F.3d 88, 111 (2d Cir. 1998).    And unlike issues of knowledge

 5   and intent, the defendant’s motive–an explanation of why the

 6   defendant would engage in the charged conduct–becomes highly

 7   relevant when the defendant argues that he did not commit

 8   the crime.

 9          For instance, in Salameh, the defendants were charged

10   with a conspiracy to bomb the World Trade Center.        Id. at

11   108.    The district court admitted documents possessed by the

12   defendants that “bristled with strong anti-American

13   sentiment.”    Id. at 111.   On appeal, we found those

14   documents admissible to demonstrate the conspiracy’s motive.

15   Id.

16          Here, the documents the government introduced pursuant

17   to Rule 404(b) detail, among other things, the construction

18   of fertilizer and plastic explosives.       One document in

19   particular discusses radioactive bombs, biological weapons,

20   and chemical weapons.    That document also contains the

21   phrase “mass casualty attack” and lists a number of New York

22   City landmarks, including Grand Central Terminal, the Empire


                                     21
 1   State Building, the Statute of Liberty, and the Brooklyn

 2   Bridge.    Taken together, these documents, which were in

 3   Siddiqui’s possession at the time Afghan officials took her

 4   into custody11 and some of which were in her handwriting,

 5   supply a plausible rationale for why Siddiqui would fire a

 6   rifle at the American interview team, namely, she harbored

 7   an anti-American animus.         This motive was relevant to the

 8   ultimate issue in dispute at trial–whether Siddiqui picked

 9   up and fired the M-4 rifle at the American interview team.

10   Accordingly, the district court did not abuse its discretion

11   in admitting the documents pursuant to Rule 404(b).12

12         But even if we agreed with Siddiqui that the district

13   court abused its discretion in admitting the documents, that

14   would not end the matter.          There would remain the question



           11
              In her brief, Siddiqui appears to contend that the government was
     required to call Afghan witnesses who were present at Siddiqui’s arrest to
     confirm this fact. We disagree. There was more than sufficient evidence to
     establish that the documents were in Siddiqui’s possession at the time of her
     arrest. Some were in her handwriting, and some bore her fingerprints.
     Moreover, on the day of her arrest, Afghan officials delivered the documents
     to American military authorities, which also tends to corroborate that
     Siddiqui possessed the documents when arrested by Afghan authorities.
           12
            Although Siddiqui often characterizes the admitted documents as
     “adverse and prejudicial,” “incendiary,” and “powerful, prejudicial, and
     damning,” she never argues in her briefs that the evidence should have been
     excluded under Federal Rule of Evidence 403 on a theory that its probative
     value is substantially outweighed by a danger of unfair prejudice. As such,
     the argument is waived. See Tolbert v. Queens College, 242 F.3d 58, 76 (2d
     Cir. 2001); see also Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1996),
     vacated on other grounds by, 521 U.S. 1114 (1997).


                                          22
 1   of whether the error was harmless.   An evidentiary error is

 2   harmless “if the appellate court can conclude with fair

 3   assurance that the evidence did not substantially influence

 4   the jury.”   United States v. Cadet, 664 F.3d 27, 32 (2d Cir.

 5   2011) (internal quotation marks omitted).   Several factors

 6   bear on the inquiry: whether the evidence was tied to “an

 7   issue that [was] plainly critical to the jury’s decision”;

 8   “whether that [evidence] was material to the establishment

 9   of the critical fact or whether it was instead

10   corroborat[ive] and cumulative”; and “whether the wrongly

11   admitted evidence was emphasized in arguments to the jury.”

12   Curley, 639 F.3d at 58 (internal quotation marks omitted).

13   But the most critical factor is “the strength of the

14   government’s case.”   Id. (internal quotation marks omitted).

15      Here, although the government by its own admission

16   “repeatedly referenced the documents introduced at trial,”

17   Government Br. 37, the jury also had ample testimony before

18   it regarding anti-American statements Siddiqui made at the

19   time of the shooting from which it could conclude that

20   Siddiqui harbored an animus towards the United States.     And

21   most importantly, the strength of the government’s case was

22   overwhelming.   Among other evidence, six members of the


                                   23
 1   American interview team testified that Siddiqui gained

 2   control of the Chief Warrant Officer’s rifle and fired at

 3   them.    Another three government witnesses who did not

 4   observe the shooting testified that they heard M-4 rifle

 5   shots.    Moreover, after Siddiqui testified, the government

 6   introduced the testimony of two FBI agents who had

 7   interviewed Siddiqui.     According to those agents, Siddiqui,

 8   among other things, (1) asked what the penalty for attempted

 9   murder was; and (2) noted that “spewing” bullets at

10   Americans was a bad thing.

11       Siddiqui counters that her forensic expert’s opinion

12   that an M-4 rifle had not been fired in the room effectively

13   neutralized the government’s case against her.     However,

14   this forensic expert’s testimony was undermined by one of

15   Siddiqui’s own witnesses, who testified that two rifle

16   shells were recovered from the room, and by a government

17   expert’s testimony that the absence of certain forensic

18   evidence from the room was not necessarily inconsistent with

19   the firing of a weapon.

20       Siddiqui also asserts that our decision in United

21   States v. Colon, 880 F.2d 650 (2d Cir. 1989), requires us to

22   grant her a new trial.     She argues that Colon mandates that


                                     24
 1   we assess the strength of the government’s case without

 2   reference to the government’s cross-examination of Siddiqui

 3   or the incriminating statements she made at Bagram and that

 4   Colon requires a new trial because the admission of the

 5   documents forced her to testify and she was harmed by doing

 6   so.    We disagree.

 7          In Colon, the defendant was charged with heroin

 8   distribution. Id. at 652.    His defense was that he did not

 9   engage in the charged act.    Id. at 658.   Nevertheless, the

10   district court admitted evidence concerning two prior

11   instances in which the defendant had sold heroin to

12   demonstrate knowledge and intent–an obvious error.       Id. at

13   656.    The defendant then testified, and, in the words of his

14   counsel, "the [Assistant] U.S. Attorney made a jackass out

15   of him."    Id. at 661 (brackets in original).   Specifically,

16   the cross-examination cast doubt on the defendant's

17   credibility and delved deeply into the circumstances

18   surrounding the defendant's prior involvement with heroin.

19   Id.    Because the record in Colon demonstrated that the

20   defendant's case was badly damaged by the erroneous

21   admission of the evidence, and because the defense may have

22   felt that there was no alternative but to have the defendant


                                    25
 1   testify as a result, we granted the defendant a new trial.

 2   See id. at 661-62.

 3       Here, we need not resolve the issue of whether Colon

 4   necessitates that we measure the strength of the

 5   Government’s case without reference to either Siddiqui’s

 6   cross-examination or the admission of the incriminating

 7   statements she made at Bagram.       Even without that evidence,

 8   the government’s case against Siddiqui can only be fairly

 9   characterized as devastating.

10       We also disagree with Siddiqui’s claim that Colon

11   requires a new trial because the admission of the 404(b)

12   evidence forced her to testify and her defense was badly

13   damaged by that testimony.   Unlike in Colon, the

14   introduction of the 404(b) evidence here did not necessitate

15   Siddiqui’s testimony from an objective, strategic

16   standpoint.   The 404(b) evidence was somewhat cumulative on

17   the issue of whether Siddiqui harbored an anti-American

18   animus, given that numerous witnesses testified as part of

19   the government’s case-in-chief that she made anti-American

20   statements during the shooting incident. Further, even

21   after the introduction of the 404(b) evidence, defense

22   counsel advised Siddiqui not to testify, we presume in large


                                     26
 1   part because her testimony would open the door to the

 2   admission of the incriminating statements she made while

 3   recovering at Bagram.     Colon does not allow a defendant to

 4   make an otherwise harmless error harmful based on her simple

 5   assertion that the error compelled her to testify.

 6   C. Denial of Defense Counsel’s Application to Keep Siddiqui
 7   from Testifying
 8
 9       It is well established that criminal defendants have

10   the right to testify in their own defense.       Rock v.

11   Arkansas, 483 U.S. 44, 49 (1987); see Brown v. Artuz, 124

12   F.3d 73, 76 (2d Cir. 1997).     “This right . . . is . . .

13   essential to due process of law in a fair adversary

14   process.”     Bennett v. United States, 663 F.3d 71, 84 (2d

15   Cir. 2011) (internal quotation marks omitted).       That is

16   because “the most important witness for the defense in many

17   criminal cases is the defendant himself,” and he has the

18   “right to present his own version of events in his own

19   words.”     Rock, 483 U.S. at 52.    The ultimate decision to

20   testify remains at all times with the defendant; defense

21   counsel, though charged with an obligation to apprise the

22   defendant of the benefits and risks of testifying, cannot

23   make the decision, regardless of tactical considerations.

24   Brown, 124 F.3d at 77-78.

                                     27
 1       Siddiqui’s counsel does not challenge these clearly

 2   established principles.    Instead, she urges us to craft an

 3   exception to the general rule, arguing that in some cases a

 4   defendant may be competent to stand trial yet incompetent to

 5   exercise her right to testify without the approval of

 6   defense counsel.

 7       In support of her argument, counsel relies heavily on

 8   the Supreme Court’s decision in Indiana v. Edwards, 554 U.S.

 9   164 (2008).   There, the Court held that a state may

10   determine that a defendant who is competent to stand trial

11   may nonetheless be incapable of representing himself at

12   trial and may thus insist that the defendant have trial

13   counsel.   Id. at 167.    The Court noted that a mentally ill

14   defendant may not possess the ability to execute tasks such

15   as organizing a defense, arguing points of law, and

16   questioning witnesses.     Id. at 176-77.   It further observed

17   that a prolonged spectacle could result from such a

18   defendant representing himself, and that spectacle would

19   undercut the Constitution’s goal of providing a fair trial.

20   Id. at 177.

21       Counsel’s reliance on Edwards is misplaced.      First, as

22   three other circuits have recognized, Edwards holds that a


                                     28
 1   court may require that trial counsel appear on behalf of a

 2   mentally ill defendant, not that it must do so.     See United

 3   States v. Turner, 644 F.3d 713, 724 (8th Cir. 2011); United

 4   States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); United

 5   States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009).

 6   But even if Edwards mandated trial courts to require trial

 7   counsel for a discrete group of mentally ill defendants, the

 8   case still would have no application here.   Common sense

 9   dictates that the mental capacity needed to conduct an

10   entire trial is much greater than the mental capacity

11   required to play the more limited role of witness on one’s

12   own behalf.   Moreover, the defendant’s right to air her

13   version of events before a jury is “more fundamental to a

14   personal defense than the right of self-representation.”

15   Rock, 483 U.S. at 52.   As such, Edwards does not

16   significantly support, let alone compel, the conclusion that

17   a district court may prevent a mentally ill defendant from

18   testifying on her own behalf if defense counsel moves to

19   keep the defendant off the stand.

20       We question whether the Constitution permits a finding

21   that a criminal defendant is competent to stand trial, yet

22   incompetent to determine whether to testify on her own


                                   29
 1   behalf.     But we need not decide that question today.   Here,

 2   the district court went to extraordinary lengths to ensure

 3   that Siddiqui understood the implications of testifying and

 4   had the capacity to testify.     Even were we to discern any

 5   daylight between the standards governing a defendant's

 6   capacity to stand trial and those for assessing her capacity

 7   to determine whether to testify (and then, actually to

 8   testify), we would find no reason to upset the district

 9   court's implicit determination that Siddiqui did in fact

10   have the requisite capacity to make the latter decision

11   here.     That Siddiqui's choice to testify—like many

12   defendants' decisions to testify—was a poor one, does not

13   alter our analysis.     See Brown, 124 F.3d at 77-78.

14   D. Voluntariness of Siddiqui’s un-Mirandized statements at
15   Bagram
16
17       Siddiqui contends that the district court erred in

18   finding that the incriminating, un-Mirandized statements she

19   gave to two members of the FBI security team while she was

20   hospitalized at Bagram Airfield were voluntary and thus

21   could be used in the government’s rebuttal case after

22   Siddiqui testified.     Prior to Siddiqui’s testimony, the

23   court held a hearing to determine the voluntariness of the

24   statements.     At that hearing, the two FBI agents testified,

                                     30
 1   and the district court’s ruling credited their testimony.

 2   Their testimony established the following.

 3         During the course of her stay at Bagram, Siddiqui was

 4   tethered to her bed in soft restraints to prevent her

 5   escape.13    The agents endeavored to meet Siddiqui’s needs as

 6   best they could and never denied her access to the restroom,

 7   food, water, or medical attention.            Further, Siddiqui had

 8   access to a medical call button that allowed her to contact

 9   the hospital’s medical staff directly; therefore, she was

10   not entirely dependent on the agents to meet her basic

11   needs.     Although Siddiqui was at times in pain and

12   medicated, she was coherent, lucid, and able to carry on a

13   conversation.

14         Special Agent Angela Sercer spent the most time with

15   Siddiqui.     She would arrive in the morning and stay

16   approximately eight hours in Siddiqui’s room.                Upon

17   arriving, she would ask Siddiqui if she wanted to talk; if

18   Siddiqui indicated she did not, Sercer would remain quietly

19   in the room as a member of Siddiqui’s security detail.

           13
            These soft restraints, made of terry cloth and cotton, provided
     Siddiqui a fair range of mobility. In fact, the restraints provided such
     mobility that Siddiqui was able to remove them. After Siddiqui removed the
     restraints, the agents positioned the straps such that it was impossible to
     remove the strap on one hand with the other. The restraints were loose enough
     to allow her to read, drink, and wash, and were removed when Siddiqui required
     use of the washroom.

                                          31
 1   Although the topic of the July 18th shooting did come up,

 2   Sercer’s primary objective was to gather intelligence

 3   related to another investigation of Siddiqui commenced years

 4   earlier.    Siddiqui was generally receptive to speaking with

 5   Sercer and indicated that she enjoyed their discussions.

 6   Special Agent Bruce Kamerman spent significantly less time

 7   with Siddiqui.    Although he was not initially tasked with

 8   interviewing Siddiqui, supervisors instructed Kamerman to

 9   “continue the dialog” when Siddiqui made unsolicited

10   incriminating statements to him.    Siddiqui never indicated

11   to Kamerman that she was unwilling to talk.    Neither agent

12   gave Siddiqui Miranda warnings.

13       Statements taken from a defendant in violation of

14   Miranda may not be introduced by the government during its

15   case in chief.    United States v. Douglas, 525 F.3d 225, 248

16   (2d Cir. 2008).    But because a defendant “must testify

17   truthfully or suffer the consequences,” the government may

18   introduce un-Mirandized statements to impeach the

19   defendant’s testimony.    Id. (internal quotation marks

20   omitted).   The government cannot, however, introduce a

21   defendant’s involuntary statements.    See, e.g., Mincey v.

22   Arizona, 437 U.S. 385, 397-98 (1978); see also United States


                                    32
 1   v. Khalil, 214 F.3d 111, 121-22 (2d Cir. 2000).    Because

 2   Siddiqui testified at trial, the government was free to

 3   introduce the statements she made at Bagram Airfield so long

 4   as those statements were voluntary.

 5       The government bears the burden of demonstrating that

 6   the defendant’s statements were voluntary.    See United

 7   States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); United

 8   States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991).    To

 9   determine whether a defendant’s statements were made

10   voluntarily, courts look to the totality of the

11   circumstances surrounding the statements.    Anderson, 929

12   F.2d at 99.    “Relevant factors . . . include the accused’s

13   age, his lack of education or low intelligence, the failure

14   to give Miranda warnings, the length of detention, the

15   nature of the interrogation, and any use of physical

16   punishment.”    Campaneria v. Reid, 891 F.2d 1014, 1020 (2d

17   Cir. 1989).    A defendant’s mental vulnerability also bears

18   on the analysis.    See Colorado v. Connelly, 479 U.S. 157,

19   164 (1986).

20       A number of decisions have assessed the voluntariness

21   of a defendant’s statements where the defendant was in

22   medical distress.    For example, in Mincy, 437 U.S. at 398-


                                    33
 1   400, the Supreme Court held that a defendant’s statements to

 2   police were involuntary where the defendant (1) arrived at

 3   the hospital a few hours before the interrogation “depressed

 4   almost to the point of coma”; (2) suffered “unbearable”

 5   pain; (3) was unable to think coherently; (4) was

 6   “encumbered by tubes, needles, and [a] breathing apparatus”;

 7   (5) expressed his desire that the interrogation cease

 8   numerous times to no avail; and (6) was falling in and out

 9   of consciousness.   By contrast, courts tend to view a

10   hospitalized defendant’s statements as voluntary where the

11   defendant was lucid and police conduct was not overbearing.

12   See Khalil, 214 F.3d at 121-22; Pagan v. Keane, 984 F.2d 61,

13   63 (2d Cir. 1993); Campaneria, 891 F.2d at 1019-20.

14         We review the factual findings underpinning the

15   district court’s voluntariness determination for clear error

16   while subjecting the ultimate conclusion that a defendant’s

17   statements were voluntarily to de novo review.   See Khalil,

18   214 F.3d at 122; see also United States v. Pettigrew, 468

19   F.3d 626, 633 (10th Cir. 2006); United States v. Bell, 367

20   F.3d 452, 460-61 (5th Cir. 2004).   Doing so, we find no

21   error in the district court’s determination that Siddiqui’s

22   statements were voluntary.   Although no Miranda warnings


                                   34
 1   were given and Siddiqui was kept in soft restraints for the

 2   duration of her hospital stay, the agents’ conduct was not

 3   overbearing or abusive.   To the contrary, the agents

 4   endeavored to meet her basic needs.   Siddiqui conversed

 5   freely with the agents, and when she indicated that she did

 6   not want to engage in conversation, Special Agent Sercer sat

 7   quietly in her room.   Further, Siddiqui is highly educated,

 8   having earned her undergraduate degree from Massachusetts

 9   Institute of Technology and a doctorate from Brandeis

10   University.   Most importantly, just as in Khalil, Pagan, and

11   Campaneria, Siddiqui was lucid and able to engage the agents

12   in coherent conversation despite the pain attendant to her

13   injury.

14       Thus, the district court did not err in allowing the

15   government to introduce the statements Siddiqui made while

16   recuperating at Bagram Airfield to rebut her trial

17   testimony.

18   E. Application of the Terrorism Enhancement to Siddiqui’s
19   Sentence
20
21       Finally, we address Siddiqui’s challenge to the

22   district court’s application of the terrorism enhancement

23   under U.S.S.G. § 3A1.4.   The enhancement increases by twelve

24   the defendant’s offense level and elevates the defendant’s

                                   35
 1   criminal history category to category six if the defendant’s

 2   offense “is a felony that involved, or was intended to

 3   promote, a federal crime of terrorism.”   Id.   A “federal

 4   crime of terrorism” is an offense that “is calculated to

 5   influence or affect the conduct of government by

 6   intimidation or coercion, or to retaliate against government

 7   conduct”; and is a violation of any one of a number of

 8   enumerated statutes, including 18 U.S.C. §§ 1114 and 2332.

 9   U.S.S.G. § 3A1.4 app. n. 1; 18 U.S.C. § 2332b(g)(5).

10       The district court found that Siddiqui’s offenses were

11   calculated to influence or affect government conduct and

12   that they were calculated to retaliate against government

13   conduct.   As to the former, the court determined that

14   Siddiqui’s offenses were “calculated to influence or affect

15   by intimidation the government’s fulfillment of its official

16   duties including, among other things, the interview team’s

17   efforts to interview . . . and . . . detain her.”   JA 2848.

18   The court, pointing to statements Siddiqui made while in

19   Afghan custody, determined that Siddiqui began scheming to

20   avoid transfer to American custody on July 17, 2008, and

21   that the scheming came to fruition when Siddiqui gained

22   control of the Chief Warrant Officer’s rifle and fired at

23   the American interview team.

                                    36
 1       In support of the latter finding, the district court

 2   highlighted testimony regarding various anti-American

 3   statements Siddiqui made while in custody.   In the court’s

 4   estimation, these statements demonstrated Siddiqui’s intent

 5   to retaliate against the United States government.

 6      Siddiqui argues that the district court erred in applying

 7   the enhancement.   She claims that application of both the

 8   terrorism enhancement and the Guidelines’ official victim

 9   enhancement resulted in impermissible double counting.     She

10   also contends that her conduct was not “calculated,” as

11   required by the plain language of the enhancement.

12   According to Siddiqui, long-term planning is a necessary

13   condition to finding that a defendant’s offense was

14   “calculated.”

15       Siddiqui’s contention that the district court committed

16   error in applying both the official victim enhancement and

17   the terrorism enhancement is devoid of merit.   “[A] district

18   court calculating a Guidelines sentence may apply multiple

19   [enhancements] based on the same underlying conduct,”

20   especially where “each of the multiple [enhancements] . . .

21   serves a distinct purpose or represents a discrete harm.”

22   United States v. Maloney, 406 F.3d 149, 152, 153 (2d Cir.


                                   37
 1   2005).    The terrorism and official victim enhancements both

 2   address discrete harms resulting from Siddiqui’s conduct–the

 3   official victim enhancement “deals with the selection of

 4   victims based on their status as government employees,” and

 5   the terrorism enhancement addresses those acts that are

 6   calculated to influence government conduct or to retaliate

 7   against a government.    In re Terrorism Bombings of U.S.

 8   Embassies in East Africa, 552 F.3d 93, 153 (2d Cir. 2008).

 9   Accordingly, application of both the terrorism and official

10   victim enhancements does not constitute impermissible double

11   counting. See id.

12       Resolution of Siddiqui’s challenge to the district

13   court’s finding that her offense was “calculated” merits

14   more discussion.    As previously noted, for the terrorism

15   enhancement to apply, the defendant’s offense must be

16   “calculated to influence or affect the conduct of government

17   by intimidation or coercion, or to retaliate against

18   government conduct.”    18 U.S.C. § 2332b(g)(5)(A) (emphasis

19   added).    When we interpret the Guidelines, we “giv[e] the

20   words used their common meaning.”    United States v. Stewart,

21   590 F.3d 93, 137 (2d Cir. 2009).    “Calculated” means

22   “planned–for whatever reason or motive–to achieve the stated


                                    38
 1   object.”     Awan, 607 F.3d at 317; see Stewart, 590 F.3d at

 2   137 (“The conventional meaning of ‘calculated’ is ‘devised

 3   with forethought.’”).

 4       Many courts (including this one) interpret “calculated”

 5   as nearly synonymous with intentional.       See Stewart, 590

 6   F.3d at 137; see also United States v. Chandia, 675 F.3d

 7   329, 333 n.3 (4th Cir. 2012); United States v. El-Mezain,

 8   664 F.3d 467, 571 (5th Cir. 2011); United States v.

 9   Jayyousi, 657 F.3d 1085, 1115 (11th Cir. 2011).      Thus, “if a

10   defendant’s purpose in committing an offense is to

11   ‘influence or affect the conduct of government by

12   intimidation or coercion, or to retaliate against government

13   conduct,’” application of the terrorism enhancement is

14   warranted.     See Stewart, 590 F.3d at 137 (emphasis added)

15   (quoting 18 U.S.C. § 2332b(g)(5)(A)).      Where, however,

16   “there is no evidence that the defendant sought to influence

17   or affect the conduct of the government,” the enhancement is

18   inapplicable.     Id. (internal quotation marks omitted).

19       Most cases applying the terrorism enhancement have

20   involved conduct that spanned a significantly greater length

21   of time than the conduct here.       See, e.g., Awan, 607 F.3d at

22   310-11; United States v. Salim, 549 F.3d 67, 70-71 (2d Cir.


                                     39
 1   2008); In re Terrorist Bombings, 552 F.3d at 103-05 (2d Cir.

 2   2008); United States v. Meskini, 319 F.3d 88, 90-91 (2d Cir.

 3   2003).   Relying on this observation, Siddiqui argues that

 4   “calculation,” as used in the enhancement, incorporates a

 5   long-term planning requirement.    We disagree.   That long-

 6   term planning is present in many of the cases applying the

 7   terrorism enhancement does not make it a condition necessary

 8   to finding that a defendant’s offense was calculated to

 9   influence government conduct or to retaliate against a

10   government.   Instead, the terrorism enhancement is

11   applicable where a defendant acts according to a

12   plan–whether developed over a long period of time or

13   developed in a span of seconds–with the object of

14   influencing government conduct or retaliating against a

15   government.

16       The day before the shooting incident here, Siddiqui

17   repeatedly implored Afghan police officials not to turn her

18   over to American forces.   Siddiqui gained control of an M-4

19   rifle and fired on the American interview team attempting to

20   take her into United States custody the following day.

21   Under these circumstances, the district court did not




                                   40
 1   clearly err14 in its determination that Siddiqui’s offense

 2   was calculated to influence government conduct–i.e, the

 3   United States’ attempts to take Siddiqui into custody–by

 4   intimidation or coercion.

 5        We also find that the district court did not clearly

 6   err in determining that Siddiqui’s offense was calculated to

 7   retaliate against the United States.            While in Afghan

 8   custody prior to the shooting incident, Siddiqui referred to

 9   the United States as invaders, and when queried about the

10   bomb-making documents found in her possession, Siddiqui

11   indicated that the target of those bombs were “the

12   foreigners.”     See JA 3022.      What’s more, shortly after

13   firing on the American interview team, Siddiqui stated: “I

14   am going to kill all you Americans. You are going to die by

15   my blood”; “death to America”; and “I will kill all you

16   motherfuckers.”      Taken as a whole, this evidence provides a

17   sufficient factual basis for the district court’s conclusion

18   that Siddiqui’s offense was calculated to retaliate against

19   the United States.

20


          14
            We decline Siddiqui’s invitation to apply a searching de novo review
     here. Because the district court’s finding on this score is factual, clear
     error review is appropriate. See Salim, 549 F.3d at 79; see also El-Mezain,
     664 F.3d at 571.

                                          41
1       Accordingly, the district court did not err in applying

2   the terrorism enhancement.

3                         III. CONCLUSION

4       For the foregoing reasons, and for the reasons provided

5   in the accompanying summary order, Siddiqui’s convictions

6   and sentence are hereby affirmed.




                                 42
