Thursday, June 17, 2010

Second Circuit: Terrorism Enhancement Misconstrued

Khalid Awan was convicted of three counts related to his funneling money from donors in the United States to a terrorist organization in India.  The organization, whose goal is to establish a Sikh state in India's Punjab region, has engaged in violent acts in India to further its objective, including bombings.  Although a forty-five year maximum sentence, applying terrorism enhancements to all three counts, had been recommended, the district court sentenced Awan to fourteen years instead, finding the enhancements inapplicable.  Earlier this week, the Second Circuit vacated and remanded that sentence in a unanimous decision.

Per the Sentencing Guidelines, the terrorism enhancement is imposed for "a felony that involved, or was intended to promote, a federal crime of terrorism."  § 3A1.4(a).  This federal terrorism crime, defined in 18 U.S.C. § 2332b(g)(5), "means an offense that . . . is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct" and is among specific offenses listed.

The district court found that Awan's motive in helping the organization was private and not calculated to influence the Indian government.  He simply enjoyed the prestige of dealing with powerful people.  The Second Circuit held, though, that Awan need not himself have calculated to influence the Indian government.  It was sufficient that he provided funds to an organization he knew was so calculated.

Also, as noted above, there are two prongs to the enhancement: "involved" or "intended to promote" terrorism.  The district court analyzed only the "involved" prong, reasoning that since among Awan's crimes are listed terrorism offenses, the more removed "intended to promote" language need not come into play.  The Second Circuit rejected this analysis, finding both prongs relevant.  Due to the omitted prong, as well as the calculation issue, the panel vacated and remanded the sentence to the district court—presumably for a much stiffer sentence.