     07-4315-cr
     United States v. Awan


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
     RULINGS BY SUM M ARY O RDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
     CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
     “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 14th day of June, two thousand and ten.
 4
 5   PRESENT:
 6
 7                     ROSEMARY S. POOLER,
 8                     REENA RAGGI,
 9                     DEBRA ANN LIVINGSTON,
10                                    Circuit Judges.
11
12
13
14   UNITED STATES OF AMERICA,
15
16                     Appellee-Cross-Appellant,
17
18            -v.-                                       No. 07-4315-cr
19
20   KHALID AWAN,
21
22                     Defendant-Appellant-Cross-Appellee.
23
24
25
26                                                 SEAN MICHAEL MAHER , Wahid Vizcaino & Maher
27                                                 LLP, New York, NY, for Defendant-Appellant-
28                                                 Cross-Appellee Khalid Awan.

                                                     1
 1                                                   KELLY T. CURRIE, Assistant United States Attorney
 2                                                   (David C. James, Marshall L. Miller, Karin Klapper
 3                                                   Orenstein, Andrew E. Goldsmith, Assistant United
 4                                                   States Attorneys, on the brief), for Benton J.
 5                                                   Campbell, United States Attorney for the Eastern
 6                                                   District of New York, Brooklyn, NY, for Appellee-
 7                                                   Cross-Appellant United States of America.
 8

 9           Appeal from a judgment of the United States District Court for the Eastern District of New

10   York (Sifton, J.).

11           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

12   that Defendant-Appellant-Cross-Appellee’s convictions are AFFIRMED.

13           After a trial in the United States District Court for the Eastern District of New York (Sifton,

14   J.), Defendant-Appellant-Cross-Appellee Khalid Awan (“Awan”) was convicted of conspiring to

15   provide material support and resources to terrorists in violation of 18 U.S.C. § 2339A; providing

16   material support and resources to terrorists in violation of 18 U.S.C. § 2339A; and money laundering

17   in violation of 18 U.S.C. § 1956(a). On appeal, Awan principally argues that (1) there was

18   insufficient evidence to support his convictions; (2) that the district court erred in denying the motion

19   to suppress Awan’s admissions to investigators; (3) the district court erred in denying the motion to

20   suppress evidence seized from Awan’s residence and suitcases; and (4) 18 U.S.C. § 2339A is

21   unconstitutionally vague as applied and on its face.1 We assume the parties’ familiarity with the

22   underlying facts, procedural history, and the issues presented for review.

23



             1
             The government’s cross-appeal concerning the application of the terrorism sentencing
     adjustment, U.S.S.G. § 3A1.4, is addressed in an accompanying opinion.

                                                        2
 1   I. Sufficiency of the Evidence

 2          We review de novo a claim of insufficient evidence. United States v. Sabhnani, 599 F.3d

 3   215, 241 (2d Cir. 2010). “A defendant challenging the sufficiency of trial evidence bears a heavy

 4   burden, and the reviewing court must view the evidence presented in the light most favorable to the

 5   government and draw all reasonable inferences in the government’s favor.” United States v.

 6   Gagliardi, 506 F.3d 140, 149 (2d Cir. 2007) (quoting United States v. Giovanelli, 464 F.3d 346, 349

 7   (2d Cir. 2006) (per curiam)) (internal quotation marks omitted). We will affirm a jury verdict unless

 8   “no rational trier of fact could have found all of the elements of the crime beyond a reasonable

 9   doubt.” Id. at 149-50 (internal quotation marks omitted).

10          Awan makes numerous arguments as to why there was insufficient evidence to support his

11   convictions, all without merit. First, Awan argues that there was insufficient evidence of a meeting

12   of the minds between Awan and any co-conspirators with respect to the § 2339A conspiracy count,

13   involving a conspiracy to murder persons outside the United States in violation of 18 U.S.C. §

14   956(a). Second, Awan argues that there was insufficient evidence of his specific intent to further

15   the charged crimes. These arguments ignore Awan’s admissions to Agent Ross, Iftikahr Mian

16   (“Mian”), and Harjit Singh (“Harjit”) that he knew the money he transferred to Paramjit Singh

17   Panjwar (“Panjwar”) and the Khalistan Commando Force (“KCF”) would be used to kill innocent

18   people. For example, Awan admitted to Ross that the money he sent to Panjwar “was going to be

19   used for . . . what he described as shooting and killing of innocent people.” Gov. App’x at 166.

20   Moreover, Awan’s admissions to Harjit and Ross indicate that he had knowledge of the purpose and

21   violent methods of Panjwar and the KCF. For example, Awan explained to Ross that the KCF was



                                                      3
 1   “trying for the violent overthrow of Khalistan from India,” and that the group’s methods included

 2   “kill[ing] people.” Id. at 155. This evidence is sufficient for a reasonable trier of fact to conclude

 3   that, when Awan acted as a conduit for the transfer of funds from Gurbax Singh (“Gurbax”) and

 4   Baljinder Singh (“Baljinder”) to Panjwar, there was a meeting of the minds between them. Indeed,

 5   Baljinder testified that during the occasion on which he and Gurbax delivered funds to Awan, “[w]e

 6   were talking about this money we need to send to . . . Panjwar,” and Awan said, “[o]kay, no

 7   problem.” Tr. 441. Such evidence was also sufficient for a reasonable trier of fact to conclude that

 8   Awan had the requisite intent to carry out the charged crimes.

 9           Third, Awan argues that his first two arguments are bolstered by the government’s failure

10   to provide evidence that Awan had a motive to engage in the charged crimes. This argument fails

11   because there was evidence bearing on Awan’s motivation, e.g., agent Ross’s testimony that Awan

12   told interrogators “[t]hat he wanted to be close to Mr. Panjwar because he knew Mr. Panjwar was

13   a terrorist.” Gov. App’x at 174. In any event, when “[m]otive is not an element of the crime . . . the

14   lack of evidence [thereof] does not, as a matter of law, preclude conviction.” United States v.

15   MacPherson, 424 F.3d 183, 185 n.2 (2d Cir. 2005).

16          Fourth, Awan argues that there was insufficient evidence that he conspired to provide

17   “personnel” in violation of 18 U.S.C. § 2339A. But Harjit’s testimony, e.g., that “Awan said to me

18   many times I’ll take you to Pakistan and let you have the training [regarding] . . . how to use the

19   guns, how to make the bombs and how to bomb blast,” Gov. App’x at 64, and the recorded

20   conversations between Awan, Harjit, and Panjwar, provided sufficient evidence from which a

21   rational jury could find that Awan was recruiting for Panjwar and the KCF.



                                                       4
 1          Fifth, Awan argues that there was insufficient evidence that he actually sent money to

 2   Panjwar or the KCF. But, according to Ross’s testimony, Awan admitted he would contact Panjwar

 3   by telephone “to confirm Panjwar actually received the money,” and that Awan would subsequently

 4   “read the newspapers . . . [t]o see if anything happened.” Id. at 168. Additionally, Baljinder

 5   testified that, after giving money to Awan to transfer to Panjwar, Panjwar told Baljinder that Awan

 6   “already did this work” before. Id. at 34. This testimony, in addition to Awan’s description to Harjit

 7   of his various methods of delivering funds to the KCF, was sufficient evidence from which a

 8   reasonable jury could infer that Awan successfully transferred funds to Panjwar.

 9          Sixth, Awan argues that his statements to Mian, Harjit, and Ross are insufficiently

10   corroborated. “[T]he modern corroboration rule requires only that there be substantial independent

11   evidence which would tend to establish the trustworthiness of the statement.” United States v. Bryce,

12   208 F.3d 346, 354 (2d Cir. 1999) (internal quotation marks omitted). For substantially the same

13   reasons contained in the district court’s analysis, United States v. Awan, No. CR-06-0154, 2007 WL

14   749739, at *3-4 (E.D.N.Y., Mar. 7, 2007), which points out, inter alia, that Awan’s admissions are

15   corroborated by the testimony of Gurbax and Baljinder, we agree that there was sufficient

16   corroborative evidence.

17          Finally, Awan argues that there was insufficient evidence that he committed the charged

18   criminal acts during the time frames covered in the second superseding indictment. For the reasons

19   explained by the district court, id. at *4-5, as well as Mian’s testimony that Awan told him that two

20   Sikhs visited Awan’s house to deliver money to Panjwar in the winter of 2000, Gov App’x at 39,

21   there is sufficient evidence from which a reasonable jury could find that Awan engaged in a § 2339A



                                                       5
 1   conspiracy between 1998 and February 2005, and violations of § 2339A and § 1956(a) between 1998

 2   and November 2001.

 3          For the foregoing reasons, Awan’s contention that there was insufficient evidence to support

 4   his convictions is without merit. We also find no error with regard to the district court’s jury

 5   instructions regarding circumstantial evidence. See, e.g., United States v. Siragusa, 450 F.2d 592,

 6   596 (2d Cir. 1971).

 7   II. Motions to Suppress

 8   A. Awan’s Custodial Statements

 9           “The standard of review observed by this court in evaluating the district court’s ruling in a

10   suppression motion is clearly erroneous as to that court’s factual findings viewing the evidence in

11   the light most favorable to the government and de novo as to questions of law.” United States v.

12   Yousef, 327 F.3d 56, 124 (2d Cir. 2003) (internal quotation marks omitted). Further, “[c]redibility

13   determinations are the province of the trial judges, and should not be overruled on appeal unless

14   clearly erroneous.” Id. (internal quotation marks omitted). Whether a defendant’s statements during

15   custodial interrogation are voluntary is determined by a totality-of-the-circumstances test. Green v.

16   Scully, 850 F.2d 894, 901 (2d Cir. 1988). “In applying the totality of the circumstances test, those

17   factors that a court should consider to determine whether an accused’s confession is voluntary center

18   around three sets of circumstances: (1) the characteristics of the accused, (2) the conditions of

19   interrogation, and (3) the conduct of law enforcement officials.” Id. at 901-02.

20          Awan argues that the statements he made to Agent Ross on February 17 and February 20,

21   2006, should have been suppressed because they were not made voluntarily. Awan focuses on the



                                                      6
 1   third set of circumstances. Specifically, he argues that the government made various threats against

 2   Awan and his family that rendered the interrogation coercive. While Awan does not contest that he

 3   signed a Miranda waiver at the beginning of each day of interrogation, Awan argues by affidavit that

 4   he was threatened prior to waiving his Miranda rights. However, the district court credited the

 5   testimony of Agent Ross at the suppression hearing and rejected Awan’s version of the facts.

 6   Specifically, the district court found that, although Ross and a prosecutor told Awan that he faced

 7   potential charges ranging “from jail time all the way possibly to the death penalty,” Gov. App’x at

 8   257, and that his family could face potential criminal liability, those statements were made between

 9   the middle and end of the second day of interrogation, after Awan had already voluntarily waived

10   his Miranda rights.2 Further, the court found that such statements were “only [made] in response

11   to concerns that the defendant did not understand the seriousness of the charges,”and that “the

12   government has shown that no other statements which could be understood as threatening were made

13   at any other point during the interviews and that the government investigators tried to maintain a

14   friendly atmosphere, removing the defendant’s handcuffs, offering [Awan] drinks and even bringing

            2
               The transcript of the suppression hearing indicates that the statement regarding Awan’s
     family was made to encourage Awan to cooperate with the government. This was not
     inappropriate, as we have “held that law enforcement agents [are] free to discuss with [a
     defendant] the evidence against him and the reasons why he should cooperate.” United States v.
     Bye, 919 F.2d 6, 9 (2d Cir. 1990) (internal quotation marks omitted). Moreover, to the extent
     that the prosecutor’s reference to the death penalty was unrealistic, we have held that,
     “[r]egardless of whether [an] agent’s statements were false, misleading, or intended to trick and
     cajole the defendant into confessing, specific findings must be made that under the totality of the
     circumstances . . . the defendant’s will was overborne by the agent’s conduct.” United States v.
     Anderson, 929 F.2d 96, 99 (2d Cir. 1991). Given the totality of the circumstances found by the
     district court, including the government’s concern that Awan did not understand the seriousness
     of the charges against him, we find that Awan’s interrogation was not coercive.



                                                      7
 1   in Arabic pastries.” United States v. Awan, No. CR-06-0154, 2006 WL 3207858, at *9 (E.D.N.Y.

 2   Nov. 6, 2006). Additionally, the court found that “[t]he evidence has shown that Mr. Awan has

 3   some legal training, has been involved with the criminal justice system before and by all indications

 4   can speak English very well,” and that the interviews were “‘very cordial’ up until the point on the

 5   second day where the government realized that [Awan] did not understand the seriousness of the

 6   charges.” Id. at *9 n.15. Given the district court’s findings of fact, which Awan has given us no

 7   reason to disturb, we find that, under the totality of the circumstances, Awan’s custodial statements

 8   were voluntary.

 9   B. Search of Awan’s Residence and Suitcases

10          Next, Awan argues that he did not voluntarily consent to the search of his residence or the

11   suitcases found in Mian’s home in Floral Park, and hence the contents of those suitcases should have

12   been suppressed.3 “In considering a challenge to a district court finding of consent [to a warrantless

13   search], we are obliged to view the evidence in the light most favorable to the government. We will

14   not reverse a finding of voluntary consent except for clear error.” United States v. Snype, 441 F.3d

15   119, 131 (2d Cir. 2006) (citation omitted).

16          The district court credited Agent Jackson’s testimony at the suppression hearing rather than

17   the facts presented in Awan’s affidavit, and found that it was objectively reasonable for agent

18   Jackson to conclude that Awan voluntarily consented to the search of his suitcases at Mian’s

19   residence. Awan has failed to show that the district court committed clear error in crediting

20   Jackson’s testimony rather than Awan’s affidavit. See United States v. Mendez, 315 F.3d 132, 135



            3
                Awan does not argue on appeal that Mian failed to give consent to the search.

                                                       8
 1   (2d Cir. 2002) (“Where the district court’s factual findings are premised upon credibility

 2   determinations, we grant particularly strong deference to those findings.”). While Awan points to

 3   an inconsistency between Jackson’s testimony and Mian’s recollection regarding when Awan’s

 4   suitcases were opened, this inconsistency does not bear on whether Awan was coerced when he

 5   provided oral consent to the search of his residence and his property at Mian’s residence. Awan’s

 6   other arguments attacking the credibility of Jackson’s testimony fail for the same reason. Thus, the

 7   district court did not commit clear error in finding that Awan’s consent was voluntary.

 8   III. Vagueness

 9           Finally, Awan argues that his first count of conviction pursuant to 18 U.S.C. § 2339A should

10   be reversed because that statute is vague as applied and on its face.4 18 U.S.C. § 2339A(a) provides,

11   in pertinent part: “Whoever provides material support or resources . . . knowing or intending that

12   they are to be used in preparation for, or in carrying out, a violation of section . . . 956 . . . of this

13   title . . . shall be . . . imprisoned . . . .” 18 U.S.C. § 956(a)(1) sets forth, in pertinent part, the

14   underlying crime for which Awan was convicted of knowingly conspiring to provide material

15   support or resources: “Whoever, within the jurisdiction of the United States, conspires with one or

16   more other persons, regardless of where such other person or persons are located, to commit at any

17   place outside the United States an act that would constitute the offense of murder, kidnapping, or

18   maiming . . . shall . . . be punished . . . .” 18 U.S.C. § 2339A(b) defines “material support or



             4
              Although Awan asserts that 18 U.S.C. § 2339A is also overbroad, this point is
     insufficiently argued in Awan’s brief, and we decline to address it. See Norton v. Sam’s Club,
     145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered
     waived and normally will not be addressed on appeal.”).


                                                         9
 1   resources” as, inter alia, “currency,” “training,” and “personnel.” Awan was convicted of knowingly

 2   conspiring to provide material support or resources, to wit, “currency, monetary instruments,

 3   financial services and personnel,” Superseding Indictment ¶ 14, to be used in a conspiracy to commit

 4   murder abroad involving Panjwar and the KCF. Specifically, Awan argues that the terms “training”

 5   and “personnel,” which are not further defined in 18 U.S.C. § 2339A, are unconstitutionally vague.

 6           “A penal statute is not void for vagueness if it defines the offense (1) with sufficient

 7   definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that

 8   does not encourage arbitrary and discriminatory enforcement.” United States v. Gagliardi, 506 F.3d

 9   140, 147 (2d Cir. 2007) (internal quotation marks omitted). Importantly here, the Supreme Court

10   “has recognized that a scienter requirement may mitigate a law’s vagueness, especially with respect

11   to the adequacy of notice to the complainant that his conduct is proscribed.” Vill. of Hoffman Estates

12   v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); see also United States v. Stewart, 590

13   F.3d 93, 117 (2d Cir. 2009) (noting in the context of a vagueness challenge to § 2339A that “scienter

14   requirements may ameliorate concerns of improper notice.” (internal quotation marks and alteration

15   omitted)). A scienter requirement also mitigates the problem of arbitrary and discriminatory

16   enforcement. See Gagliardi, 506 F.3d at 147 (stating that a “scienter requirement narrows the scope

17   of [18 U.S.C.] § 2422(b) as well as the ability of prosecutors and law enforcement officers to act

18   based on their own preferences”).

19          At the outset, we reject Awan’s challenge to the term “training” because Awan was not

20   convicted of violating 18 U.S.C. § 2339A for the provision of “training.” See United States v.

21   Hammoud, 381 F.3d 316, 330-31 (4th Cir. 2004) (en banc) (“The possible vagueness of [the



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 1   “personnel” and “training”] prongs of the material support definition [in 18 U.S.C. § 2339B] does

 2   not affect Hammoud’s conviction, however, because he was specifically charged with providing

 3   material support in the form of currency.”), vacated and remanded sub nom. Hammoud v. United

 4   States, 543 U.S. 1097 (2005), reinstated in relevant part, United States v. Hammoud, 405 F.3d 1034

 5   (4th Cir. 2005).

 6           Given 18 U.S.C. § 2339A’s scienter requirement, i.e., that the defendant provide material

 7   support or resources “knowing or intending” that they be used in preparation for, or in carrying out,

 8   an enumerated crime, we find the meaning of “personnel” to be sufficiently clear as applied in this

 9   case. In count one of Awan’s indictment, the enumerated crime was murder, maiming, or

10   kidnapping abroad. See 18 U.S.C. § 956(a)(1). In the context of Awan’s 18 U.S.C. § 2339A

11   conspiracy count, “personnel” plainly refers to persons engaged in preparing for, or carrying out,

12   the crime of murder, maiming or kidnapping abroad. See Stewart, 590 F.3d at 118; United States

13   v. Sattar, 314 F. Supp. 2d 279, 298 (S.D.N.Y. 2004) (“[I]n using the term ‘personnel’ in § 2339A,

14   Congress plainly intended to refer to persons engaged in ‘prepar[ing] for’ or ‘carry[ing] out’ one of

15   the crimes specified in § 2339A.”). Thus, Harjit, whom Awan conspired to recruit for training and

16   carrying out attacks in India on behalf of Panjwar and the KCF, comfortably falls within the meaning

17   of “personnel.” For this reason, Awan’s as-applied vagueness challenge to the term “personnel”

18   fails. Because “personnel” is not unconstitutionally vague as applied to Awan’s conviction in count

19   one, it follows that the term does not render 18 U.S.C. § 2399A unconstitutional on its face. See

20   United States v. Rybicki, 354 F.3d 124, 130-31 (2d Cir. 2003) (en banc) (stating that a facial

21   challenge outside the First Amendment context can succeed “only if [the statute] is



                                                      11
1   unconstitutionally vague ‘as applied’ to all circumstances”).

2   IV. Conclusion

3          We have considered all of Awan’s arguments with respect to his convictions and find them

4   to be without merit. Hence, Awan’s convictions are AFFIRMED.

5

6                                                        FOR THE COURT:
7                                                        Catherine O’Hagan Wolfe, Clerk
8
9




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