         10-3916-cr
         United States v. Siddiqui

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 5th day of November, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                         Circuit Judges,
 9                ROSLYNN R. MAUSKOPF,
10                         District Judge.*
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                                10-3916-cr
18
19       AAFIA SIDDIQUI,
20
21                                     Defendant-Appellant.**
22
23
24       FOR APPELLANT:                DAWN M. CARDI (Chad L. Edgar, on the
25                                     brief), Dawn M. Cardi & Associates, New
26                                     York, NY.
27
28

                *
                The Honorable Roslynn R. Mauskopf, of the United States District Court
         for the Eastern District of New York, sitting by designation.
                **
                 The Clerk of the Court is respectfully directed to amend the caption
         to conform with the above.
 1   FOR APPELLEE:     JENNA M. DABBS, Assistant United States
 2                     Attorney (Christopher L. Lavigne, Jesse
 3                     M. Furman, Assistant United States
 4                     Attorneys, on the brief), for Preet
 5                     Bharara, United States Attorney for the
 6                     Southern District of New York, New York,
 7                     NY.
 8
 9        Appeal from the United States District Court for the
10   Southern District of New York (Berman, J.).
11
12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the United States District

14   Court for the Southern District of New York be AFFIRMED.

15       Appellant Aafia Siddiqui appeals from a judgment of the

16   United States District Court for the Southern District of

17   New York (Berman, J.), convicting her after a jury trial of

18   numerous offenses and sentencing her principally to 86

19   years’ imprisonment.   In an accompanying published opinion,

20   we address five issues that Siddiqui raises on appeal.    We

21   address the remaining issues herein.   We assume the parties’

22   familiarity with the underlying facts, the procedural

23   history, and the issues presented for review.

24       Siddiqui contends that reversal is warranted because

25   the district court admitted testimonial hearsay in violation

26   of Crawford v. Washington, 541 U.S. 36 (2004), and that the

27   error was not harmless beyond a reasonable doubt.   Her

28   argument follows several steps.   She claims that the

                                   2
1    testimony of two United States Army officers that they were

2    informed by certain Afghan officials that Siddiqui was in

3    possession of incendiary documents at the time of her arrest

4    violated Crawford.     Siddiqui argues that without this

5    testimony, the government could not establish that Siddiqui

6    possessed the documents when she was arrested.     And

7    according to Siddiqui, because the “real relevance” of the

8    documents is that Siddiqui possessed them in close proximity

9    (in time) to the shooting incident, the documents would have

10   been excluded under Federal Rule of Evidence 403 but for the

11   officers’ testimony.

12       Siddiqui’s Crawford challenge stumbles at its first

13   step.    The Confrontation Clause bars only testimonial

14   hearsay used to establish the truth of the matter asserted.

15   See United States v. Paulino, 445 F.3d 211, 216-17 (2d Cir.

16   2006).   A testimonial statement is “a solemn declaration or

17   affirmation made for the purpose of establishing or proving

18   some fact.”    Michigan v. Bryant, 131 S.Ct. 1143, 1153 (2011)

19   (internal quotation marks and brackets omitted).     Typical

20   testimonial statements include affidavits, depositions, and

21   grand jury testimony.     See Crawford, 541 U.S. at 51-52.     The

22   outer bounds of what constitutes a testimonial statement

23   remain unclear.   But “the critical factor in identifying a

                                     3
1    Confrontation Clause concern is the declarant’s awareness or

2    expectation that his or her statements may later be used at

3    trial.”     United States v. Farhane, 634 F.3d 127, 163 (2d

4    Cir. 2011) (internal quotation marks omitted).

5        Here, we have little doubt that the Afghan officials

6    had no expectation or awareness that their statements

7    regarding what documents were found on Siddiqui when she was

8    arrested would later be used at a trial.     When these

9    statements were made, Siddiqui had not yet fired upon the

10   American interview team.     The United States’ interest in

11   Siddiqui was primarily military in nature.     This is

12   underscored by the fact that the statements were conveyed to

13   American military personnel, not domestic law enforcement

14   officers.    As such, there was no Crawford violation.     See

15   Bryant, 131 S.Ct. at 1154.

16       We note also that the government did not offer these

17   statements to prove the truth of the matter asserted, but

18   rather to show their effect on the listeners–in other words,

19   to explain the United States' interest in interviewing

20   Siddiqui.    The district court gave a limiting instruction to

21   this effect.    Even if, as Siddiqui appears to contend,

22   allowing the testimony was impermissible under hearsay

23   rules, such an error would be harmless because (1) there was

                                     4
1    other evidence that strongly suggested the documents were in

2    Siddiqui's possession at the time of her arrest; and (2) as

3    explained in the accompanying published opinion, admission

4    of the documents was harmless.

5        Next, in an argument that she herself characterizes as

6    advancing a “novel theor[y],” Siddiqui Reply Br. 3, Siddiqui

7    contends that the district court committed reversible error

8    in failing to give an instruction to the jury requiring them

9    to be unanimous as to the specific identity of Siddiqui’s

10   intended victims for the attempted murder counts.     We

11   disagree.

12       The statutes at issue here prohibit the attempted

13   killing of “a national of the United States,” 18 U.S.C. §

14   2332, and “any officer or employee of the United States

15   while such officer or employee is engaged in or on the

16   account of the performance of official duties,” 18 U.S.C. §

17   1114.     Because the statutes do not specify the elements of

18   “attempt to kill,” the elements are those required for

19   attempted murder at common law, which include an intent to

20   kill.     See Braxton v. United States, 500 U.S. 344, 351 n.*

21   (1991).

22       Federal juries must be unanimous as to each element of

23   an offense.     Richardson v. United States, 526 U.S. 813, 817

                                     5
1    (1999).   However, “a federal jury need not always decide

2    unanimously which of several possible sets of underlying

3    brute facts make up a particular element.”       Id.   “[F]or

4    example, [where] an element of robbery is force or the

5    threat of force, some jurors might conclude that the

6    defendant used a knife to create the threat; others might

7    conclude he used a gun.     But that disagreement–a

8    disagreement about means–would not matter as long as all 12

9    jurors unanimously concluded that the Government had proved

10   the necessary related element, namely, that the defendant

11   had threatened force.”    Id.     Courts have not developed a

12   bright line test for distinguishing between an element of a

13   crime and a “brute fact.”       Instead, they look to the

14   statutory language, tradition, and fairness concerns, such

15   as the likelihood that treating a fact as a means rather

16   than an element would allow “wide disagreement among the

17   jurors about just what the defendant did, or did not, do”

18   and the risk that the jury may convict on bad reputation

19   alone.    Id. at 819.

20       Here, the relevant statutory language—prohibiting the

21   attempted killing of “a national” and “any officer or

22   employee—suggests that Congress did not intend that the

23   government had to prove that the defendant had a particular

                                       6
1    individual in mind as an element of the crime.    Cf. United

2    States v. Talbert, 501 F.3d 449, 451 (5th Cir. 2007); United

3    States v. Verrecchia, 196 F.3d 294, 299 (1st Cir. 1999).

4    Viewing the identity of the intended victim as a “brute

5    fact” rather than as an element does not implicate fairness

6    concerns.    It does not allow for wide juror disagreement as

7    to the defendant’s acts and does not create or aggravate the

8    risk that the jury would convict on bad reputation alone.

9    See Richardson, 526 U.S. at 819.

10       Indeed, a contrary interpretation would lead to absurd

11   results.    For instance, under Siddiqui’s interpretation of

12   the statute, a defendant who fired one shot at a group of

13   United States employees or nationals with the intent to

14   indiscriminately kill one of them, but not an intent to kill

15   a particular individual, could not be convicted under the

16   statutes.    For these reasons, we reject Siddiqui’s argument

17   that the district court was required to instruct the jury

18   that they had to be unanimous as to which United States

19   employee or national Siddiqui intended to kill.

20       The final three arguments that Siddiqui advances

21   concern sentencing.    She contends that the district court

22   erred by refusing to “horizontally depart” in her criminal

23   history category and thereby to mitigate the effects of the

                                    7
1    terrorism enhancement on her sentence.    We will not review a

2    district court’s refusal to alter a criminal history

3    category unless the court “misapprehended the scope of its

4    authority to depart or the sentence was otherwise illegal.”

5    United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005);

6    see United States v. Stinson, 465 F.3d 113, 114 (2d Cir.

7    2006).   Because there is nothing in the record to suggest

8    that the district court did not appreciate or understand its

9    authority to depart or that the sentence was otherwise

10   illegal, we reject Siddiqui’s argument.

11       Next, in a somewhat unfocused argument, Siddiqui

12   contends that (1) “the district court erred procedurally by

13   not providing notice to defense counsel that recidivism was

14   going to be a predominant concern” at sentencing; and (2)

15   the district court imposed a “substantively unreasonable”

16   sentence by finding that without treatment Siddiqui was

17   likely to be a recidivist, and thereby drew conclusions that

18   were clearly the province of mental health professionals.

19   Siddiqui Reply Br. 49.   Siddiqui’s claim of procedural error

20   predicated on lack of notice is without merit.   Indeed, the

21   very Supreme Court case on which Siddiqui relies notes that

22   “[g]arden variety considerations of culpability, criminal

23   history, likelihood of re-offense, seriousness of the crime,

                                   8
1    nature of the conduct, and so forth should not generally

2    come as a surprise to trial lawyers who have prepared for

3    sentencing.”   Irizarry v. United States, 553 U.S. 708, 716

4    (2008) (internal quotation marks omitted) (emphasis added).

5    In addition, and more importantly, defense counsel, in their

6    sentencing submission to the district court, explicitly

7    addressed the issue, writing: "We understand that the Court,

8    in light of our continued emphasis upon Dr. Siddiqui's

9    serious mental illness and the role it played in her offense

10   conduct, has to speculate as to Dr. Siddiqui's future

11   dangerousness when addressing the issue as to what sentence

12   will protect the public from her."   JA 3095.

13       Nor did the district court improperly invade the

14   province of mental health professionals when it commented on

15   the defendant’s likelihood of recidivism.   Contrary to

16   Siddiqui’s contentions, the district court’s comments here

17   are a far cry from the comments to which this Court took

18   exception in United States v. Cossey, 632 F.3d 82, 88 (2d

19   Cir. 2011), and United States v. Dorvee, 616 F.3d 174, 183-

20   84 (2d Cir. 2010).   Moreover, the district court relied on

21   other factors–such as the seriousness of the offense and the

22   need for general deterrence–in fashioning its sentence.

23   Under the circumstances of this case, a sentence of 86

24   years’ imprisonment is substantively reasonable.

                                   9
1        Finally, we need not address Siddiqui’s claim that the

2    district court erred in finding that her conduct was

3    premeditated.   Even without a finding of premeditation,

4    Siddiqui’s Guidelines range would have been life

5    imprisonment.   As such, the district court characterized the

6    dispute regarding premeditation as academic before

7    addressing the issue.   Any error in finding Siddiqui’s

8    conduct to be premeditated would be harmless.     See United

9    States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009).

10       After a thorough review of the record, we find

11   Siddiqui’s remaining arguments to be without merit.

12       For the foregoing reasons, and for the reasons stated

13   in the accompanying published opinion, the judgment of the

14   district court is hereby AFFIRMED.

15
16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19




                                   10
