Conviction for Attempted Use of WMD Affirmed Despite Challenges to FISA Searches and “Some Preparations Taken Together” Jury Instruction

United States v. Aldawsari, No. 12-11166 (5th Cir. Jan. 23, 2014) (Reavley, Davis, Higginson)

The panel affirms Aldawsari’s conviction for attempted use of a weapon of mass destruction and sentence of life imprisonment.

Aldawsari appeals the denial of his motion to suppress evidence gathered pursuant to the Foreign Intelligence Surveillance Act (FISA). Under the Foreign Intelligence Surveillance Court of Review (FISCR), FISA searches do not violate the Fourth Amendment so long as they are at least partially motivated by a purpose to “protect the nation against terrorists and espionage threats directed by foreign powers” and are thus not performed with the “sole objective of criminal prosecution.” As a statutory matter, evidence can be collected during a FISA search where protection against terrorist threats is at least a “significant purpose” of the FISA search and admissible in a criminal prosecution.

Aldawsari argues that searches were not validly authorized under 50 U.S.C. § 1805 and § 1824. In particular, Aldawsari claims that the FISC failed to authorize a search upon a showing of probable cause to believe the searches’ target is “an agent of a foreign power” under 50 U.S.C. § 1801.  Aldawsari speculates that the government likely never made the requisite showing of any foreign power’s involvement since no evidence was presented during trial.

The panel, based upon a review of the classified materials in camera, finds that Aldawsari’s inference is incorrect. Moreover, the panel finds that the objective of the searches was not solely the criminal prosecution of the Aldawsari, but protecting the nation against terrorist threats.

Additionally, Aldawsari argues the jury instructions allowed Aldawsari to be convicted even though he had only performed “mere preparations” and never completed a “substantial step” toward committing the offense. The instruction in question states that “some preparations, when taken together with intent, may amount to an attempt.” The panel holds the instruction was proper since it directed the jury to look at the evidence, when “taken as a whole,” describing the preparation-attempt continuum. When read in context, the instruction adequately distinguishes between “mere preparation” and “some preparations” which “may amount to an attempt” so long as such “acts...clearly indicate a willful intent to commit a crime.” See United States v. Mandujana, 499 F.2d 370 (5th Cir. 1974).

Lastly, Aldawsari argues that the district court erred procedurally and substantively in imposing a life sentence. First, Aldawsari claims the district court erred when it applied the § 2K1.4 cross-reference to the guidelines for “attempted murder” because it is unclear whether Aldawsari ever identified a final bombing target. The panel finds there is no authority that requires a finding of a clear targeted victim, location or facility to apply § 2K1.4. See United States v. Polk, 118 F.3d 286, 297-98 (5th Cir. 1997). Second, the panel overrules Aldawsari’s objection that the district court erred when it applied § 3C1.1 adjustment for obstruction of justice based on its finding that Aldawsari feigned mental illness according to a physician’s report. Finally, the panel overrules Aldawsari’s objection that the district court abused its discretion by imposing a substantively unreasonable term of imprisonment.

Thanks to FPD intern Linda Corchado for this post.