Saturday, December 06, 2008

How Not To Seek A Change Of Counsel

United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)

With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him. He pled guilty to conspiracy and attempted murder of a federal official. Although Salim had originally claimed that this was a botched escape attempt, at the Fatico hearing, his story changed. He testified that he abandoned the escape plan as unworkable; rather his goal was to take the guard’s keys, unlock the attorney-client visiting room, and attack his attorneys so that they would withdraw from the case. Salim had indeed, on several occasions, unsuccessfully sought a substitution of counsel from the district court.

The district court credited Salim’s story; it held that the assault was not an escape plan, but rather was a plan to force a change of counsel. In calculating Salim’s sentence, the court imposed a 3-level official victim enhancement, a 2-level obstruction of justice enhancement, and a 3-level restraint enhancement. It declined to impose the terrorism enhancement of U.S.S.G. § 3A1.4, however. Both sides appealed, and the court affirmed as to Salim’s claims, but reversed on the terrorism enhancement.

The Terrorism Enhancement

Guideline section 3A1.4 provides for a dramatic enhancement if the “offense is a felony that involved, or was intended to promote, a Federal crime of terrorism.” The guideline adopts the definition of “Federal crime of terrorism” contained in 18 U.S.C. § 2332(g)(5): a crime that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and that is a violation of certain enumerated statutes, including the one to which Salim pled guilty.

The district court concluded that the attack on the guard was “in furtherance of his intent to affect or influence [the district court’s] decision about substitution of counsel, and was in retaliation for judicial conduct denying [his] applications for substitution of counsel.” It refused to impose the enhancement, however, because it also held that the enhancement only applied to “conduct transcending national boundaries,” which did not occur here.

The circuit reversed. The district court distilled this extra requirement from 18 U.S.C. § 2332b(f), which gives the attorney general “primary investigative responsibility” for all “Federal crimes of terrorism” ... “[i]n addition to any other investigative authority with respect to violations of this title.” The lower court concluded that this section would be meaningless unless “Federal crime of terrorism” referred only to crimes involving transnational conduct because other sections of title 18 already give the attorney general “broad authority to investigate” intra-national crimes. Thus, the “addition[al]” authority referred to in § 2332b(f) must refer to transnational crimes.

The circuit disagreed, since no transnational conduct requirement is contained in § 2332(g)(5), the definition selected by the Sentencing Commission. Moreover, the district court’s construction of § 2332b(f) was itself erroneous. That section does not give the attorney general additional investigative “authority” for Federal crimes of terrorism, it gives him “primary investigatory responsibility” for them. And “[w]hatever” that phrase means, it is “plainly distinct” from “investigative authority” because “it envisions an authority expressly superior to that possessed by another actor.” It is “not meaningless” to give an officer “primary investigative responsibility over a certain category of crimes, even if he has pre-existing authority to investigate the same crimes.”

Salim also argued that the enhancement should not apply because the rulings of a judge do not constitute “government conduct” under § 2332(g)(5). The court found this claim “patently meritless.” A federal judge is a “government official,” and thus the “conduct of government” includes judicial rulings.

The Obstruction Enhancement

The district court found that Salim lied at the Fatico hearing about his motive for the attack when he testified that his intent was merely to force his attorneys to resign and not to influence the district court’s determination about whether to grant a substitution of counsel.

An obstruction enhancement based on this finding was proper. Salim’s main argument on appeal was that his motive for attempting to attack his attorneys was immaterial, because he pled guilty only to attacking the guard. But this relied on an “impermissibly narrow notion of materiality.” The issue under consideration was whether the terrorism enhancement applied, which in turn required the court to consider the purpose of the attack. For the obstruction enhancement, a statement is material if it “would tend to influence or affect the issue under determination.” Since motivation is clearly a factor in the terrorism enhancement, Salim’s statements were material.

They were also false. The district court did not clearly err in concluding Salim’s testimony that he believed that a change of counsel could be effectuated unilaterally by his counsel was a lie. Finally, the district court made adequate findings as to every element of the enhancement, including intent.

Official Victim

Salim challenged this enhancement on the ground that there was no evidence that the attack was motivated by the guard’s “official status.” But Salim clearly knew of the guard’s status, and testified that he was trying to obtain a key that the guard possessed only as a result of his official status. This satisfied the enhancement.


Salim claimed that, since he did not restrain the guard until after he had been disabled by the stabbing, the restraint enhancement should not apply. The circuit disagreed: “Handcuffing a victim and locking him in a cell after a potentially lethal attack prevents a victim from seeking aid and thereby adds to the underlying offense of attempted murder.”

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