         10-3916-cr
         United States v. Siddiqui

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  AMENDED
                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
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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 15th 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.

                *
                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, JESSE M. FURMAN,
 2                     Assistant United States Attorneys
 3                     (Christopher L. Lavigne, Assistant United
 4                     States Attorney, 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


                                   2
1    argument follows several steps.     She claims that the

2    testimony of two United States Army officers that they were

3    informed by certain Afghan officials that Siddiqui was in

4    possession of incendiary documents at the time of her arrest

5    violated Crawford.     Siddiqui argues that without this

6    testimony, the government could not establish that Siddiqui

7    possessed the documents when she was arrested.     And

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

9    documents is that Siddiqui possessed them in close proximity

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

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

12   officers’ testimony.

13       Siddiqui’s Crawford challenge stumbles at its first

14   step.    The Confrontation Clause bars only testimonial

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

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

17   2006).   A testimonial statement is “a solemn declaration or

18   affirmation made for the purpose of establishing or proving

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

20   (internal quotation marks and brackets omitted).     Typical

21   testimonial statements include affidavits, depositions, and

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

                                     3
1    outer bounds of what constitutes a testimonial statement

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

3    Confrontation Clause concern is the declarant’s awareness or

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

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

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

7        Here, we have little doubt that the Afghan officials

8    had no expectation or awareness that their statements

9    regarding what documents were found on Siddiqui when she was

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

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

12   American interview team.     The United States’ interest in

13   Siddiqui was primarily military in nature.     This is

14   underscored by the fact that the statements were conveyed to

15   American military personnel, not domestic law enforcement

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

17   Bryant, 131 S.Ct. at 1154.

18       We note also that the government did not offer these

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

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

21   to explain the United States' interest in interviewing

22   Siddiqui.    The district court gave a limiting instruction to


                                     4
1    this effect.   Even if, as Siddiqui appears to contend,

2    allowing the testimony was impermissible under hearsay

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

4    other evidence that strongly suggested the documents were in

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

6    explained in the accompanying published opinion, admission

7    of the documents was harmless.

8        Next, in an argument that she herself characterizes as

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

10   contends that the district court committed reversible error

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

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

13   intended victims for the attempted murder counts.   We

14   disagree.

15       The statutes at issue here prohibit the attempted

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

17   2332, and “any officer or employee of the United States

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

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

20   1114.   Because the statutes do not specify the elements of

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

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


                                   5
1    kill.     See Braxton v. United States, 500 U.S. 344, 351 n.*

2    (1991).

3        Federal juries must be unanimous as to each element of

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

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

6    unanimously which of several possible sets of underlying

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

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

9    threat of force, some jurors might conclude that the

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

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

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

13   jurors unanimously concluded that the Government had proved

14   the necessary related element, namely, that the defendant

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

16   bright line test for distinguishing between an element of a

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

18   statutory language, tradition, and fairness concerns, such

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

20   than an element would allow “wide disagreement among the

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



                                        6
1    and the risk that the jury may convict on bad reputation

2    alone.     Id. at 819.

3        Here, the relevant statutory language—prohibiting the

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

5    employee—suggests that Congress did not intend that the

6    government had to prove that the defendant had a particular

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

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

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

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

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

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

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

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

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

16       Indeed, a contrary interpretation would lead to absurd

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

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

19   United States employees or nationals with the intent to

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

21   a particular individual, could not be convicted under the



                                     7
1    statutes.   For these reasons, we reject Siddiqui’s argument

2    that the district court was required to instruct the jury

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

4    employee or national Siddiqui intended to kill.

5        The final three arguments that Siddiqui advances

6    concern sentencing.   She contends that the district court

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

8    history category and thereby to mitigate the effects of the

9    terrorism enhancement on her sentence.    We will not review a

10   district court’s refusal to alter a criminal history

11   category unless the court “misapprehended the scope of its

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

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

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

15   2006).   Because there is nothing in the record to suggest

16   that the district court did not appreciate or understand its

17   authority to depart or that the sentence was otherwise

18   illegal, we reject Siddiqui’s argument.

19       Next, in a somewhat unfocused argument, Siddiqui

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

21   not providing notice to defense counsel that recidivism was


                                   8
1    going to be a predominant concern” at sentencing; and (2)

2    the district court imposed a “substantively unreasonable”

3    sentence by finding that without treatment Siddiqui was

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

5    were clearly the province of mental health professionals.

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

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

8    very Supreme Court case on which Siddiqui relies notes that

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

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

11   nature of the conduct, and so forth should not generally

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

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

14   (2008) (internal quotation marks omitted) (emphasis added).

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

16   sentencing submission to the district court, explicitly

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

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

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

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

21   dangerousness when addressing the issue as to what sentence

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

                                   9
1        Nor did the district court improperly invade the

2    province of mental health professionals when it commented on

3    the defendant’s likelihood of recidivism.   Contrary to

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

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

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

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

8    84 (2d Cir. 2010).   Moreover, the district court relied on

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

10   need for general deterrence–in fashioning its sentence.

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

12   years’ imprisonment is substantively reasonable.

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

14   district court erred in finding that her conduct was

15   premeditated.   Even without a finding of premeditation,

16   Siddiqui’s Guidelines range would have been life

17   imprisonment.   As such, the district court characterized the

18   dispute regarding premeditation as academic before

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

20   conduct to be premeditated would be harmless.     See United

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



                                   10
1        After a thorough review of the record, we find

2    Siddiqui’s remaining arguments to be without merit.

3        For the foregoing reasons, and for the reasons stated

4    in the accompanying published opinion, the judgment of the

5    district court is hereby AFFIRMED.

 6
 7                              FOR THE COURT:
 8                              Catherine O’Hagan Wolfe, Clerk
 9
10




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