     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                                               Amended: November 15, 2012
12
13                               Docket No. 10-3916-cr
14
15
16                         UNITED STATES OF AMERICA,
17
18                                                                     Appellee,
19
20                                       –v.–
21
22                                  AAFIA SIDDIQUI,
23
24                                                      Defendant-Appellant.*
25
26
27
28   Before:
29
30    WESLEY, CARNEY, Circuit Judges, MAUSKOPF, District Judge.**
31
32        Defendant-Appellant Aafia Siddiqui appeals her criminal
33   convictions, entered after a jury trial in the United States
34   District Court for the Southern District of New York
35   (Berman, J.), for attempted murder of United States
36   nationals, attempted murder of United States officers and
37   employees, armed assault of United States officers and
38   employees, assault of United States officers and employees,
39   and use of a firearm during a crime of violence. She also

           *
            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   challenges her sentence of eighty-six years’ imprisonment.
 2   Siddiqui contends that the district court erred in a number
 3   of ways. We address five of Siddiqui’s arguments here:(1)
 4   that Count One of the indictment was deficient because the
 5   Attorney General failed to timely issue a required
 6   certification for prosecution under 18 U.S.C. § 2332, and
 7   because the statutes underlying Counts Two through Seven do
 8   not apply extraterritorially in an active theater of war;
 9   (2) that the district court committed reversible error by
10   admitting, under Federal Rule of Evidence 404(b), documents
11   allegedly found in her possession at the time Afghan
12   officials took her into custody; (3) that the district court
13   erred in allowing her to testify in her own defense despite
14   a request from defense counsel to preclude her from doing so
15   because of her alleged mental illness; (4) that the district
16   court erred in allowing the government to rebut her
17   testimony with un-Mirandized statements she gave to FBI
18   agents while hospitalized at Bagram Airfield because those
19   statements allegedly were not voluntary; and (5) that the
20   district court erred in applying the terrorism enhancement
21   under section 3A1.4 of the United States Sentencing
22   Guidelines. We address Siddiqui’s remaining arguments in an
23   accompanying summary order.
24
25       AFFIRMED.
26
27
28
29            DAWN M. CARDI (Chad L. Edgar, on the brief), Dawn
30                 M. Cardi & Associates, New York, NY, for
31                 Defendant-Appellant.
32
33            JENNA M. DABBS, JESSE M. FURMAN, Assistant United
34                 States Attorneys (Christopher L. Lavigne,
35                 Assistant United States Attorney, on the
36                 brief), for Preet Bharara, United States
37                 Attorney for the Southern District of New
38                 York, New York, NY, for Appellee.
39
40
41
42
43
44

                                  2
 1   WESLEY, Circuit Judge:

 2       Defendant-Appellant Aafia Siddiqui appeals from a

 3   judgment of the United States District Court for the

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

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

 6   count of attempted murder of United States nationals in

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

 8   murder of United States officers and employees in violation

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

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

11   111(a)(1) and (b); one count of using a firearm during a

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

13   three counts of assault of United States officers and

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

15   district court sentenced her principally to 86 years’

16   imprisonment.   Siddiqui urges this Court to reverse her

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

18   address five of the arguments that Siddiqui raises on appeal

19   here and the remaining issues in an accompanying summary

20   order.

21

22


                                   3
 1                             I. BACKGROUND

 2   A. Offense Conduct

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

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

 5   Pakistani national, in Ghazni City, Afghanistan, on

 6   suspicion of attempting to attack the Governor of Ghazni.

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

 8   other things, various documents that discussed the

 9   construction of weapons, referenced a “mass casualty

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

11   Afghan authorities brought Siddiqui to an ANP facility for

12   questioning.   Later that evening, the Governor of Ghazni

13   delivered the materials found in Siddiqui’s possession to

14   the United States Army.

15       The following morning, the United States dispatched a

16   team to the ANP facility with the objective of interviewing

17   Siddiqui and ultimately taking her into American custody.

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

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

20   Afghan officials brought the team to a poorly lit room

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

22   Afghan officials, and unbeknownst to the Americans, Siddiqui

23   was sequestered unrestrained behind the curtain.

                                     4
 1       The presence of a large number of Afghan officials led

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

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

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

 5   moved to a chair near the curtain dividing the room.     After

 6   quickly glancing behind the curtain and seeing nothing, he

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

 8   officials in conversation.     Moments later, Siddiqui gained

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

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

11   and struggled with Siddiqui.     As the interpreter wrestled

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

13   shot Siddiqui in the stomach.

14       Team members then attempted to restrain Siddiqui, who

15   was fiercely resisting and screaming anti-American

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

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

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

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

20       Eventually, the Americans were able to subdue Siddiqui

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

22   After providing preliminary treatment at the scene, the



                                     5
 1   Americans transported her to a number of military bases in

 2   Afghanistan to undergo surgery and receive further care.     On

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

 4   Airfield to recuperate.

 5       While recovering at Bagram, Siddiqui was guarded by an

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

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

 8   Siddiqui provided a number of incriminating, un-Mirandized

 9   statements to two members of the security team.        In

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

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

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

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

14   rifle with the intention of scaring the American team and

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

16   was a bad thing.

17       The government filed a sealed criminal complaint

18   against Siddiqui in the Southern District of New York on

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

20   transferred Siddiqui to the United States for prosecution.

21   A month later, Siddiqui was indicted.

22


                                     6
 1   B. Pre-Trial

 2       Soon after the indictment was filed, the district court

 3   ordered that Siddiqui undergo psychiatric evaluations of her

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

 5   6, 2008, Dr. Leslie Powers opined that Siddiqui was not

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

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

 8   her assessment, finding that Siddiqui was malingering to

 9   avoid prosecution.    Other experts arrived at the same

10   conclusion, although one expert commissioned by the defense

11   opined that Siddiqui was not competent.    The district court

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

13   the relevant evidence, the court found Siddiqui competent to

14   stand trial.

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

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

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

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

19   Attorney General failed to timely issue the required written

20   certification that her offense (attempted murder of United

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




                                    7
 1   retaliate against a government or a civilian population.”1

 2   18 U.S.C. § 2332(d).       Siddiqui also contended that Counts

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

 4   111, and 924(c), should be dismissed because the statutes do

 5   not have extraterritorial application under the

 6   circumstances of her case.        The district court denied

 7   Siddiqui’s motions.

 8       The district court also considered the government’s

 9   motion in limine to admit certain documents and other

10   evidence recovered from Siddiqui at the time of her arrest

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

12   Siddiqui’s handwriting and bore her fingerprints, referred

13   to attacks on the United States and the construction of

14   various weapons.     The court found this evidence admissible

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

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

17   finding the documents admissible, the court rejected the

18   argument that the evidence would cause Siddiqui unfair

19   prejudice, concluding that the documents were no more

20   sensational than the crimes charged.           The court also noted

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

22   to be considered as propensity evidence.

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

                                         8
 1   C. Trial

 2         At trial, the government presented six members of the

 3   American interview team who testified that Siddiqui gained

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

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

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

 7   government expert testified that the fact that no gunpowder

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

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

10   someone standing between the curtain and the weapon could

11   have absorbed the residue.          The government also introduced

12   the 404(b) documents discussed above.2

13         The defense put forth a forensic metallurgist who,

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

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

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

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

18   rifle in a room without bullet fragments or gunpowder

19   residue being recovered by authorities.              The defense 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   introduced deposition testimony of an ANP officer that when

 2   Siddiqui was arrested she possessed documents describing how

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

 4   while in Afghani custody she made anti-American statements

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

 6   stated that he saw an American soldier walk behind the

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

 8   directly observe the shooting.3           Significantly, the officer

 9   testified that he observed a technician remove two rifle

10   shells from the scene.

11         Against the advice and over the objection of her

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

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

14   was able to provide her version of the events that

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


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

 2   she heard American voices.     She feared being taken into

 3   American custody and peeked through an opening in the

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

 5   testified that she was then shot from multiple directions.

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

 7   rifle at the Americans.

 8       Siddiqui claimed that she could not confirm that she

 9   possessed documents at the time of her arrest in Afghanistan

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

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

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

13   referencing mass casualty attacks and listing New York City

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

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

16       After the defense rested, the government presented its

17   rebuttal case.    Two FBI agents who were members of

18   Siddiqui’s security detail during her recovery at Bagram

19   recounted several incriminating statements that Siddiqui

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

21   court held a hearing to determine whether Siddiqui gave




                                     11
 1   these un-Mirandized statements voluntarily.5               At that

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

 3   district court determined that Siddiqui’s statements were

 4   voluntary.

 5         On February 3, 2010, the jury returned a guilty verdict

 6   on all counts of the indictment.            The district court

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

 8   number of other enhancements, the court applied the

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

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

11   offense was calculated to influence the conduct of the

12   government by intimidation, namely, attempting to frustrate

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

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

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

16   Siddiqui’s conduct was calculated to retaliate against the

17   United States government.          The district court sentenced

18   Siddiqui principally to 86 years’ imprisonment and five

19   years of supervised release.

20         Siddiqui timely appealed her convictions and sentence.


           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.

                                          12
 1                            II. DISCUSSION

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

 3       Siddiqui raised below, and now reasserts, several

 4   challenges to the indictment.        According to Siddiqui, the

 5   district court should have dismissed Count One, which

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

 7   States Attorney General did not timely issue the

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

 9   argues that the remaining counts are deficient because the

10   underlying statutes do not apply extraterritorially in an

11   active theater of war.    We disagree.

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

13   offense described in this section shall be undertaken by the

14   United States except on written certification of the

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

16   coerce, intimidate, or retaliate against a government or

17   civilian population.”    Siddiqui relies on speedy trial

18   principles to conclude that a prosecution is commenced at

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

20   Siddiqui’s argument here encounters an obstacle: the

21   original complaint on which Siddiqui was arrested did not

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


                                     13
 1   was the indictment, which was filed the same day the

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

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

 4   that the statute requires certification prior to a

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

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

 7   Attorney General is required to issue the certification

 8   before an accusatory instrument describing facts that could

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

10   whether that instrument actually charges a violation of

11   § 2332.   Siddiqui reasons that because the criminal

12   complaint filed on July 31, 2008 described conduct

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

14   filed the day of the indictment was untimely.

15       Siddiqui’s argument offers an unusual reading of what

16   appears to be straightforward statutory language—a reading

17   that would undercut the very purpose of the provision.

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

19   issue a certification before “prosecution for any offense

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

21   read as a requirement that the Attorney General issue the

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


                                   14
 1   the first instrument charging a violation of § 2332.    This

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

 3   the statute reaches only terrorist violence inflicted upon

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

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

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

 7       Under Siddiqui’s interpretation of the provision, the

 8   Attorney General would have to issue the certification any

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

10   statute.   This would deprive the Attorney General of the

11   opportunity to sort through the facts of each case to

12   determine if it merited certification—and prosecution—under

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

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

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

16   to dismiss Count One of the indictment.

17       Siddiqui next contends that Counts Two through Seven of

18   the indictment should be dismissed because the charging




                                   15
 1   statutes—18 U.S.C. §§ 1114,6 111,7 and 924(c)8—do not have

 2   application extraterritorially “in an active theater of

 3   war.”    This argument is without merit.

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

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

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

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

 8   ordinary presumption that laws do not apply

 9   extraterritorially has no application to criminal statutes.

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

11   2011).    “When the text of a criminal statute is silent,

12   Congressional intent to apply the statute extraterritorially

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

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

15         The statutes underlying Counts Two through Seven apply

16   extraterritorially.        Subsequent to the filing of Siddiqui’s

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

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

           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.

                                           16
 1   reasoned that “the nature of the offense–protecting U.S.

 2   personnel from harm when acting in their official

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

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

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

 6   personnel acting within the United States only.     For the

 7   same reason, § 111 applies extraterritorially.    See United

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

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

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

11   offense–protecting United States officers and employees

12   engaged in official duties from harm–implies a Congressional

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

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

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

16   during commission of a crime of violence, every federal

17   court that has considered the issue has given the statute

18   extraterritorial application where, as here, the underlying

19   substantive criminal statutes apply extraterritorially.

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

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

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


                                    17
 1   States v. Mardirossian, 818 F. Supp. 2d 775, 776-77

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

 3   conclusions.

 4         Siddiqui’s argument that the statutes, even if

 5   generally extraterritorial, do not apply “in an active

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

 7   out, it would be incongruous to conclude that statutes aimed

 8   at protecting United States officers and employees do not

 9   apply in areas of conflict where large numbers of officers

10   and employees operate.         The district court appropriately

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

12   of the Indictment.

13   B. Admission of Documents under Federal Rule of Evidence
14   404(b)
15
16             The district court admitted documents allegedly found

17   in Siddiqui’s possession that explained the construction and


           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
     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   use of various weapons and described a “mass casualty

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

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

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

 5   picked up and fired the Chief Warrant Officer’s

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

 7   of the documents was improper.

 8       A district court’s evidentiary rulings encounter

 9   trouble on appeal only where the district court abuses its

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

11   Cir. 2009).    A district court abuses its discretion when

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

13   But even when an evidentiary ruling is “manifestly

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

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

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

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

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

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

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

21   propensity and the acts in question are consistent with his

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


                                   19
 1   evidence may be admissible for other legitimate purposes,

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

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

 4   “other act” evidence is generally admissible unless it

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

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

 7   Cir. 2011).10

 8        A defendant may, however, forestall the admission of

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

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

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

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

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

14   commit the charged act effectively removes issues of intent

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

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

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

18        But even assuming that Siddiqui’s defense theory

19   effectively removed any issue of her intent or knowledge,

20   the documentary evidence remained relevant to demonstrate


          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).

                                          20
 1   Siddiqui’s motive.    Motive has been variously defined as

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

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

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

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

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

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

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

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

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

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

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

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

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

15   defendant would engage in the charged conduct–becomes highly

16   relevant when the defendant argues that he did not commit

17   the crime.

18          For instance, in Salameh, the defendants were charged

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

20   108.    The district court admitted documents possessed by the

21   defendants that “bristled with strong anti-American

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


                                     21
 1   documents admissible to demonstrate the conspiracy’s motive.

 2   Id.

 3         Here, the documents the government introduced pursuant

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

 5   of fertilizer and plastic explosives.             One document in

 6   particular discusses radioactive bombs, biological weapons,

 7   and chemical weapons.        That document also contains the

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

 9   City landmarks, including Grand Central Terminal, the Empire

10   State Building, the Statute of Liberty, and the Brooklyn

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

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

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

14   supply a plausible rationale for why Siddiqui would fire a

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

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

17   ultimate issue in dispute at trial–whether Siddiqui picked

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



           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.

                                          22
 1   Accordingly, the district court did not abuse its discretion

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

 3         But even if we agreed with Siddiqui that the district

 4   court abused its discretion in admitting the documents, that

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

 6   of whether the error was harmless.            An evidentiary error is

 7   harmless “if the appellate court can conclude with fair

 8   assurance that the evidence did not substantially influence

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

10   2011) (internal quotation marks omitted).              Several factors

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

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

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

14   of the critical fact or whether it was instead

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

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

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

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

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

           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).


                                          23
 1      Here, although the government by its own admission

 2   “repeatedly referenced the documents introduced at trial,”

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

 4   it regarding anti-American statements Siddiqui made at the

 5   time of the shooting from which it could conclude that

 6   Siddiqui harbored an animus towards the United States.       And

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

 8   overwhelming.    Among other evidence, six members of the

 9   American interview team testified that Siddiqui gained

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

11   them.    Another three government witnesses who did not

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

13   shots.    Moreover, after Siddiqui testified, the government

14   introduced the testimony of two FBI agents who had

15   interviewed Siddiqui.    According to those agents, Siddiqui,

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

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

18   Americans was a bad thing.

19       Siddiqui counters that her forensic expert’s opinion

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

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

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


                                    24
 1   Siddiqui’s own witnesses, who testified that two rifle

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

 3   expert’s testimony that the absence of certain forensic

 4   evidence from the room was not necessarily inconsistent with

 5   the firing of a weapon.

 6          Siddiqui also asserts that our decision in United

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

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

 9   we assess the strength of the government’s case without

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

11   or the incriminating statements she made at Bagram and that

12   Colon requires a new trial because the admission of the

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

14   so.    We disagree.

15          In Colon, the defendant was charged with heroin

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

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

18   district court admitted evidence concerning two prior

19   instances in which the defendant had sold heroin to

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

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

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


                                    25
 1   of him."   Id. at 661 (brackets in original).      Specifically,

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

 3   credibility and delved deeply into the circumstances

 4   surrounding the defendant's prior involvement with heroin.

 5   Id.   Because the record in Colon demonstrated that the

 6   defendant's case was badly damaged by the erroneous

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

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

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

10   See id. at 661-62.

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

12   necessitates that we measure the strength of the

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

14   cross-examination or the admission of the incriminating

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

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

17   characterized as devastating.

18         We also disagree with Siddiqui’s claim that Colon

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

20   evidence forced her to testify and her defense was badly

21   damaged by that testimony.   Unlike in Colon, the

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


                                     26
 1   Siddiqui’s testimony from an objective, strategic

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

 3   the issue of whether Siddiqui harbored an anti-American

 4   animus, given that numerous witnesses testified as part of

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

 6   statements during the shooting incident. Further, even

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

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

 9   part because her testimony would open the door to the

10   admission of the incriminating statements she made while

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

12   make an otherwise harmless error harmful based on her simple

13   assertion that the error compelled her to testify.

14   C. Denial of Defense Counsel’s Application to Keep Siddiqui
15   from Testifying
16
17       It is well established that criminal defendants have

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

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

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

21   essential to due process of law in a fair adversary

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

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

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

                                     27
 1   criminal cases is the defendant himself,” and he has the

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

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

 4   testify remains at all times with the defendant; defense

 5   counsel, though charged with an obligation to apprise the

 6   defendant of the benefits and risks of testifying, cannot

 7   make the decision, regardless of tactical considerations.

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

 9       Siddiqui’s counsel does not challenge these clearly

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

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

12   defendant may be competent to stand trial yet incompetent to

13   exercise her right to testify without the approval of

14   defense counsel.

15       In support of her argument, counsel relies heavily on

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

17   164 (2008).    There, the Court held that a state may

18   determine that a defendant who is competent to stand trial

19   may nonetheless be incapable of representing himself at

20   trial and may thus insist that the defendant have trial

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

22   defendant may not possess the ability to execute tasks such


                                     28
 1   as organizing a defense, arguing points of law, and

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

 3   that a prolonged spectacle could result from such a

 4   defendant representing himself, and that spectacle would

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

 6   Id. at 177.

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

 8   three other circuits have recognized, Edwards holds that a

 9   court may require that trial counsel appear on behalf of a

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

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

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

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

14   But even if Edwards mandated trial courts to require trial

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

16   case still would have no application here.   Common sense

17   dictates that the mental capacity needed to conduct an

18   entire trial is much greater than the mental capacity

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

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

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

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


                                   29
 1   Rock, 483 U.S. at 52.     As such, Edwards does not

 2   significantly support, let alone compel, the conclusion that

 3   a district court may prevent a mentally ill defendant from

 4   testifying on her own behalf if defense counsel moves to

 5   keep the defendant off the stand.

 6       We question whether the Constitution permits a finding

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

 8   incompetent to determine whether to testify on her own

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

10   the district court went to extraordinary lengths to ensure

11   that Siddiqui understood the implications of testifying and

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

13   daylight between the standards governing a defendant's

14   capacity to stand trial and those for assessing her capacity

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

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

17   court's implicit determination that Siddiqui did in fact

18   have the requisite capacity to make the latter decision

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

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

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

22


                                     30
 1   D. Voluntariness of Siddiqui’s un-Mirandized statements at
 2   Bagram
 3
 4         Siddiqui contends that the district court erred in

 5   finding that the incriminating, un-Mirandized statements she

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

 7   hospitalized at Bagram Airfield were voluntary and thus

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

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

10   court held a hearing to determine the voluntariness of the

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

12   and the district court’s ruling credited their testimony.

13   Their testimony established the following.

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

15   tethered to her bed in soft restraints to prevent her

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

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

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

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

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


           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   not entirely dependent on the agents to meet her basic

 2   needs.     Although Siddiqui was at times in pain and

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

 4   conversation.

 5       Special Agent Angela Sercer spent the most time with

 6   Siddiqui.     She would arrive in the morning and stay

 7   approximately eight hours in Siddiqui’s room.     Upon

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

 9   Siddiqui indicated she did not, Sercer would remain quietly

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

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

12   Sercer’s primary objective was to gather intelligence

13   related to another investigation of Siddiqui commenced years

14   earlier.     Siddiqui was generally receptive to speaking with

15   Sercer and indicated that she enjoyed their discussions.

16   Special Agent Bruce Kamerman spent significantly less time

17   with Siddiqui.     Although he was not initially tasked with

18   interviewing Siddiqui, supervisors instructed Kamerman to

19   “continue the dialog” when Siddiqui made unsolicited

20   incriminating statements to him.     Siddiqui never indicated

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

22   gave Siddiqui Miranda warnings.


                                     32
 1       Statements taken from a defendant in violation of

 2   Miranda may not be introduced by the government during its

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

 4   (2d Cir. 2008).     But because a defendant “must testify

 5   truthfully or suffer the consequences,” the government may

 6   introduce un-Mirandized statements to impeach the

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

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

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

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

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

12   Siddiqui testified at trial, the government was free to

13   introduce the statements she made at Bagram Airfield so long

14   as those statements were voluntary.

15       The government bears the burden of demonstrating that

16   the defendant’s statements were voluntary.     See United

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

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

19   determine whether a defendant’s statements were made

20   voluntarily, courts look to the totality of the

21   circumstances surrounding the statements.     Anderson, 929

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


                                     33
 1   age, his lack of education or low intelligence, the failure

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

 3   nature of the interrogation, and any use of physical

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

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

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

 7   164 (1986).

 8       A number of decisions have assessed the voluntariness

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

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

11   400, the Supreme Court held that a defendant’s statements to

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

13   the hospital a few hours before the interrogation “depressed

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

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

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

17   (5) expressed his desire that the interrogation cease

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

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

20   hospitalized defendant’s statements as voluntary where the

21   defendant was lucid and police conduct was not overbearing.

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

23   63 (2d Cir. 1993); Campaneria, 891 F.2d at 1019-20.

                                    34
 1         We review the factual findings underpinning the

 2   district court’s voluntariness determination for clear error

 3   while subjecting the ultimate conclusion that a defendant’s

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

 5   214 F.3d at 122; see also United States v. Pettigrew, 468

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

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

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

 9   statements were voluntary.   Although no Miranda warnings

10   were given and Siddiqui was kept in soft restraints for the

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

12   overbearing or abusive.   To the contrary, the agents

13   endeavored to meet her basic needs.     Siddiqui conversed

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

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

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

17   having earned her undergraduate degree from Massachusetts

18   Institute of Technology and a doctorate from Brandeis

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

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

21   in coherent conversation despite the pain attendant to her

22   injury.


                                   35
 1       Thus, the district court did not err in allowing the

 2   government to introduce the statements Siddiqui made while

 3   recuperating at Bagram Airfield to rebut her trial

 4   testimony.

 5   E. Application of the Terrorism Enhancement to Siddiqui’s
 6   Sentence
 7
 8       Finally, we address Siddiqui’s challenge to the

 9   district court’s application of the terrorism enhancement

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

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

12   criminal history category to category six if the defendant’s

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

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

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

16   influence or affect the conduct of government by

17   intimidation or coercion, or to retaliate against government

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

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

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

21       The district court found that Siddiqui’s offenses were

22   calculated to influence or affect government conduct and

23   that they were calculated to retaliate against government

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

                                     36
 1   Siddiqui’s offenses were “calculated to influence or affect

 2   by intimidation the government’s fulfillment of its official

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

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

 5   The court, pointing to statements Siddiqui made while in

 6   Afghan custody, determined that Siddiqui began scheming to

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

 8   that the scheming came to fruition when Siddiqui gained

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

10   the American interview team.

11       In support of the latter finding, the district court

12   highlighted testimony regarding various anti-American

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

14   estimation, these statements demonstrated Siddiqui’s intent

15   to retaliate against the United States government.

16      Siddiqui argues that the district court erred in applying

17   the enhancement.   She claims that application of both the

18   terrorism enhancement and the Guidelines’ official victim

19   enhancement resulted in impermissible double counting.     She

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

21   required by the plain language of the enhancement.

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


                                    37
 1   condition to finding that a defendant’s offense was

 2   “calculated.”

 3       Siddiqui’s contention that the district court committed

 4   error in applying both the official victim enhancement and

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

 6   court calculating a Guidelines sentence may apply multiple

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

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

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

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

11   2005).   The terrorism and official victim enhancements both

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

13   official victim enhancement “deals with the selection of

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

15   the terrorism enhancement addresses those acts that are

16   calculated to influence government conduct or to retaliate

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

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

19   Accordingly, application of both the terrorism and official

20   victim enhancements does not constitute impermissible double

21   counting. See id.

22


                                   38
 1       Resolution of Siddiqui’s challenge to the district

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

 3   more discussion.    As previously noted, for the terrorism

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

 5   “calculated to influence or affect the conduct of government

 6   by intimidation or coercion, or to retaliate against

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

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

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

10   590 F.3d 93, 137 (2d Cir. 2009).    “Calculated” means

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

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

13   137 (“The conventional meaning of ‘calculated’ is ‘devised

14   with forethought.’”).

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

16   as nearly synonymous with intentional.    See Stewart, 590

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

18   329, 333 n.3 (4th Cir. 2012); United States v. El-Mezain,

19   664 F.3d 467, 571 (5th Cir. 2011); United States v.

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

21   defendant’s purpose in committing an offense is to

22   ‘influence or affect the conduct of government by


                                    39
 1   intimidation or coercion, or to retaliate against government

 2   conduct,’” application of the terrorism enhancement is

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

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

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

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

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

 8       Most cases applying the terrorism enhancement have

 9   involved conduct that spanned a significantly greater length

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

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

12   2008); In re Terrorist Bombings, 552 F.3d at 103-05 (2d Cir.

13   2008); United States v. Meskini, 319 F.3d 88, 90-91 (2d Cir.

14   2003).   Relying on this observation, Siddiqui argues that

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

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

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

18   terrorism enhancement does not make it a condition necessary

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

20   influence government conduct or to retaliate against a

21   government.     Instead, the terrorism enhancement is

22   applicable where a defendant acts according to a


                                     40
 1   plan–whether developed over a long period of time or

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

 3   influencing government conduct or retaliating against a

 4   government.

 5        The day before the shooting incident here, Siddiqui

 6   repeatedly implored Afghan police officials not to turn her

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

 8   rifle and fired on the American interview team attempting to

 9   take her into United States custody the following day.

10   Under these circumstances, the district court did not

11   clearly err14 in its determination that Siddiqui’s offense

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

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

14   intimidation or coercion.

15        We also find that the district court did not clearly

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

17   retaliate against the United States.            While in Afghan

18   custody prior to the shooting incident, Siddiqui referred to

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

20   bomb-making documents found in her possession, Siddiqui


          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.

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 1   indicated that the target of those bombs were “the

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

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

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

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

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

 7   sufficient factual basis for the district court’s conclusion

 8   that Siddiqui’s offense was calculated to retaliate against

 9   the United States.

10       Accordingly, the district court did not err in applying

11   the terrorism enhancement.

12                          III. CONCLUSION

13       For the foregoing reasons, and for the reasons provided

14   in the accompanying summary order, Siddiqui’s convictions

15   and sentence are hereby affirmed.




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