CASE CLOSED … what really happened in the 2001 anthrax attacks?

* Excerpt on Aafia Siddiqui from 2012 Georgetown thesis

Posted by Lew Weinstein on August 26, 2012

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16 Responses to “* Excerpt on Aafia Siddiqui from 2012 Georgetown thesis”

  1. DXer said

    Anthrax letters suspect Adnan El-Shukrijumah was an associate with Aafia Siddiqui and Al-Hindi. When she was captured, Aafia had a thumb drive with her email correspondence with US-based cell members.

    Elusive Al Qaeda thug Adnan Shukrijumah continues to frustrate U.S. authorities
    BY JAMES GORDON MEEK AND LARRY MCSHANE / DAILY NEWS STAFF WRITERS

    THURSDAY, JULY 8, 2010, 4:00 AM

    Read more: http://www.nydailynews.com/news/national/elusive-al-qaeda-thug-adnan-shukrijumah-continues-frustrate-u-s-authorities-article-1.464986#ixzz2V6exkGE5

    He was earlier linked to the 9/11 attacks, to a plot to blow up Kennedy Airport and to a Pakistani neuroscientist arrested with notes on potential U.S. targets.

    Read more: http://www.nydailynews.com/news/national/elusive-al-qaeda-thug-adnan-shukrijumah-continues-frustrate-u-s-authorities-article-1.464986#ixzz2V6etOKmO

    Shukrijumah took flight lessons at the same time as the 9/11 hijackers. He was known within Al Qaeda as Jafar al Tayar – Jafar the pilot – and assigned to scope out New York targets for a possible second wave of warfare.

    Shukrijumah has ties to Aafia Siddiqui, the Pakistani neuroscientist who tried to kill an Army captain after she was caught in Afghanistan with notes on dirty bombs, chemical weapons and potential New York targets….

    We must know the enemy intimately in order to defeat it.

    Read more: http://www.nydailynews.com/opinion/embodiment-evil-degrees-separation-terrorists-article-1.463853#ixzz2V6fd2aaw

  2. DXer said

    Note that this excerpt is totally botched. Ammar Al-Balucchi was Aafia’s second husband. He was not the anesthesiologist (the first husband).

    Ammar al-Balucchi was the 911 planner, KSM’s nephew, who asked Aafia to help out with anthrax. Aafia, she says, spent 6 months researching the subject at Karachi technical institute.

    • DXer said

      UNITED STATES OF AMERICA, Appellee, -v.- AAFIA SIDDIQUI, Defendant-Appellant. Docket No. 10-3916-cr UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 699 F.3d 690; 2012 U.S. App. LEXIS 22728 February 10, 2012, Argued November 5, 2012, Decided SUBSEQUENT HISTORY: Amended: November 15, 2012. PRIOR HISTORY: [**1] Defendant-Appellant Aafia Siddiqui appeals her criminal convictions, entered after a jury trial in the United States District Court for the Southern District of New York (Berman, J.), for attempted murder of United States nationals, attempted murder of United States officers and employees, armed assault of United States officers and employees, assault of United States officers and employees, and use of a firearm during a crime of violence. She also challenges her sentence of eighty-six years’ imprisonment. Siddiqui contends that the district court erred in a number of ways. We address five of Siddiqui’s arguments here:(1) that Count One of the indictment was deficient because the Attorney General failed to timely issue a required certification for prosecution under 18 U.S.C. § 2332, and because the statutes underlying Counts Two through Seven do not apply extraterritorially in an active theater of war; (2) that the district court committed reversible error by admitting, under Federal Rule of Evidence 404(b), documents allegedly found in her possession at the time Afghan officials took her into custody; (3) that the district court erred in allowing her to testify in her own defense [**2] despite a request from defense counsel to preclude her from doing so because of her alleged mental illness; (4) that the district court erred in allowing the government to rebut her testimony with un-Mirandized statements she gave to FBI agents while hospitalized at Bagram Airfield because those statements allegedly were not voluntary; and (5) that the district court erred in applying the terrorism enhancement under section 3A1.4 of the United States Sentencing Guidelines. We address Siddiqui’s remaining arguments in an accompanying summary order. DISPOSITION: AFFIRMED. CASE SUMMARY PROCEDURAL POSTURE: Defendant was convicted in the U.S. District Court for the Southern District of New York of attempted murder of U.S. nationals, officers, and employees, 18 U.S.C.S. §§ 2332(b)(1), 1114(3), armed assault and assault of U.S. officers and employees, 18 U.S.C.S. § 111(a)(1), (b), and using a firearm during a crime of violence, 18 U.S.C.S. § 924(c). She appealed, and also appealed a U.S. Sentencing Guidelines Manual § 3A1.4 terrorism enhancement. OVERVIEW: The indictment was the first charge of a § 2332 violation, and the § 2332(d) certification was filed the same day, consistent with having to be issued at the time of or before the filing of the first instrument charging a § 2332 violation. 18 U.S.C.S. §§ 111, 924(c), 1114, applied extraterritorially, and could apply in an active theater of war. Even if a defense of not firing the gun removed issues of intent or knowledge, documents Afghan officers took from defendant upon her arrest were relevant to a motive of anti-U.S. animus under Fed. R. Evid. 404(b). While counsel sought to keep her off the stand due to mental illness, the district court went to extraordinary lengths to ensure she understood the implications of testifying and had the capacity to testify and was not required to prevent her from testifying. The day before the shooting, she repeatedly asked the Afghan police not to turn her over to U.S. forces. The next day she gained control of a rifle and fired on the U.S. team to avoid U.S. custody. The § 3A1.4 terrorism enhancement applied as finding the offense was calculated to influence the U.S.’s attempts to take her into custody by intimidation or coercion was not error. OUTCOME: There convictions and sentence were affirmed. COUNSEL: DAWN M. CARDI (Chad L. Edgar, on the brief), Dawn M. Cardi & Associates, New York, NY, for Defendant-Appellant. JENNA M. DABBS, JESSE M. FURMAN, Assistant United States Attorneys (Christopher L. Lavigne, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. JUDGES: Before: WESLEY, CARNEY, Circuit Judges, MAUSKOPF, District Judge.** ** The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation. OPINION BY: WESLEY OPINION [*696] WESLEY, Circuit Judge: Defendant-Appellant Aafia Siddiqui appeals from a [**3] judgment of the United States District Court for the Southern District of New York (Berman, J.) entered on September 23, 2010, convicting her after a jury trial of one count of attempted murder of United States nationals in violation of 18 U.S.C. § 2332(b)(1); one count of attempted murder of United States officers and employees in violation of 18 U.S.C. § 1114(3); one count of armed assault of United States officers and employees in violation of 18 U.S.C. §§ 111(a)(1) and (b); one count of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); and three counts of assault of United States officers and employees in violation of 18 U.S.C. § 111(a)(1). The district court sentenced her principally to 86 years’ imprisonment. Siddiqui urges this Court to reverse her convictions and, failing that, to vacate her sentence. We address five of the arguments that Siddiqui raises on appeal here and the remaining issues in an accompanying summary order. I. BACKGROUND A. Offense Conduct Around dusk on July 17, 2008, Afghan National Police (“ANP”) detained Aafia Siddiqui, a United States-educated Pakistani national, in Ghazni City, Afghanistan, on suspicion of attempting to attack [**4] the Governor of Ghazni. When police took her into custody, Siddiqui possessed, among other things, various documents that discussed the construction of weapons, referenced a “mass casualty attack,” and listed a number of New York City landmarks. Afghan authorities brought Siddiqui to an ANP facility for questioning. Later that evening, the Governor of Ghazni delivered the materials found in Siddiqui’s possession to the United States Army. The following morning, the United States dispatched a team to the ANP facility with the objective of interviewing Siddiqui and ultimately taking her into American custody. The team-most dressed in military fatigues-consisted of two FBI agents and members of a military special forces unit. Afghan officials brought the team to a poorly lit room partitioned by a yellow curtain. The room was crowded with Afghan officials, and unbeknownst to the Americans, Siddiqui was sequestered unrestrained behind the curtain. The presence of a large number of Afghan officials led members of the American team to believe that they had been brought to the room to discuss the terms of their access to Siddiqui. One of the team members, a Chief Warrant Officer, moved to a [**5] chair near the curtain dividing the room. After quickly glancing behind the curtain and seeing nothing, he set down his M-4 rifle and turned to engage the Afghan officials in conversation. Moments later, Siddiqui gained control of the rifle, aimed it at members of the American team, shouted, and fired. The team’s interpreter lunged at and struggled with Siddiqui. As the interpreter wrestled with her, the Chief Warrant Officer drew his sidearm and shot Siddiqui in the stomach. [*697] Team members then attempted to restrain Siddiqui, who was fiercely resisting and screaming anti-American statements. One witness recalled Siddiqui stating, “I am going to kill all you Americans. You are going to die by my blood.” Another recounted that Siddiqui yelled “death to America” and “I will kill all you motherfuckers.” Eventually, the Americans were able to subdue Siddiqui enough to begin to render emergency medical aid to her. After providing preliminary treatment at the scene, the Americans transported her to a number of military bases in Afghanistan to undergo surgery and receive further care. On July 19, 2008, American forces moved Siddiqui to Bagram Airfield to recuperate. While recovering at Bagram, [**6] Siddiqui was guarded by an FBI team. She was tethered to her hospital bed in soft restraints. During the course of her stay at Bagram, Siddiqui provided a number of incriminating, un-Mirandized statements to two members of the security team. In particular, she (1) asked about the penalty for attempted murder; (2) stated that she had a number of documents in her possession at the time of her arrest and recognized some of them when shown to her; (3) said that she had picked up a rifle with the intention of scaring the American team and escaping; and (4) noted that “spewing” bullets at Americans was a bad thing. The government filed a sealed criminal complaint against Siddiqui in the Southern District of New York on July 31, 2008. On August 4, 2008, the government transferred Siddiqui to the United States for prosecution. A month later, Siddiqui was indicted. B. Pre-Trial Soon after the indictment was filed, the district court ordered that Siddiqui undergo psychiatric evaluations of her competence to stand trial. In a report issued on November 6, 2008, Dr. Leslie Powers opined that Siddiqui was not currently competent, citing, among other things, Siddiqui’s reports of visual hallucinations. [**7] Later, Dr. Powers revised her assessment, finding that Siddiqui was malingering to avoid prosecution. Other experts arrived at the same conclusion, although one expert commissioned by the defense opined that Siddiqui was not competent. The district court held a competency hearing on July 6, 2009. After canvassing the relevant evidence, the court found Siddiqui competent to stand trial. In advance of trial, the district court ruled on a number of motions, some of which are relevant here. Siddiqui first moved to dismiss all of the counts of the indictment. As to Count One, Siddiqui claimed that the Attorney General failed to timely issue the required written certification that her offense (attempted murder of United States nationals) “was intended to coerce, intimidate, or retaliate against a government or a civilian population.”1 18 U.S.C. § 2332(d). Siddiqui also contended that Counts Two through Seven, charging violations of 18 U.S.C. §§ 1114, 111, and 924(c), should be dismissed because the statutes do not have extraterritorial application under the circumstances of her case. The district court denied Siddiqui’s motions. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 1 The certification was filed on the same day as the indictment. – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – The [**8] district court also considered the government’s motion in limine to admit certain documents and other evidence recovered from Siddiqui at the time of her arrest by Afghan officials. These documents, some of which were in Siddiqui’s handwriting and bore her fingerprints, referred to attacks on the United States and [*698] the construction of various weapons. The court found this evidence admissible pursuant to Federal Rule of Evidence 404(b) to show Siddiqui’s “motive, intent, identity, and knowledge.” In finding the documents admissible, the court rejected the argument that the evidence would cause Siddiqui unfair prejudice, concluding that the documents were no more sensational than the crimes charged. The court also noted that it would instruct the jury that the documents were not to be considered as propensity evidence. C. Trial At trial, the government presented six members of the American interview team who testified that Siddiqui gained control of the Chief Warrant Officer’s rifle and fired at them. Three more witnesses who did not directly observe the shooting testified that they heard M-4 rifle shots. A government expert testified that the fact that no gunpowder residue was found on [**9] the curtain hanging in the room did not necessarily indicate that an M-4 had not been fired because someone standing between the curtain and the weapon could have absorbed the residue. The government also introduced the 404(b) documents discussed above.2 – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 2 The district court gave a limiting instruction to the jury, informing them that they could not consider the documents as proof that Siddiqui was predisposed to commit the crimes charged. The district court made clear that the documents could only be considered to the extent they demonstrated Siddiqui’s motive, intent, or knowledge. – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – The defense put forth a forensic metallurgist who, based on the lack of forensic evidence of a discharge of a M-4 rifle at the crime scene, testified that he did not believe an M-4 had been fired in the room. In particular, he found it implausible that someone could discharge an M-4 rifle in a room without bullet fragments or gunpowder residue being recovered by authorities. The defense also introduced deposition testimony of an ANP officer that when Siddiqui was arrested she possessed documents describing how to make explosive devices, among other things, and that while in Afghani custody she made anti-American [**10] statements and asked not be turned over to the United States. He also stated that he saw an American soldier walk behind the curtain prior to hearing shots fired, although he did not directly observe the shooting.3 Significantly, the officer testified that he observed a technician remove two rifle shells from the scene. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 3 The government elicited admissions from the officer that he previously gave inconsistent statements to American investigators. – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – Against the advice and over the objection of her attorneys, Siddiqui took the stand to testify in her own defense.4 Though her testimony at times lacked focus, she was able to provide her version of the events that transpired on July 18, [*699] 2008. According to Siddiqui, she was sitting behind a curtain in a room at the ANP facility when she heard American voices. She feared being taken into American custody and peeked through an opening in the curtain with the hope of finding an escape route. Siddiqui testified that she was then shot from multiple directions. She stated that she never picked up, aimed, or fired an M-4 rifle at the Americans. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 4 Defense counsel viewed this as a disastrous decision, and went so far as to make an application to the court [**11] to prevent Siddiqui from testifying. In their view, Siddiqui suffered from diminished capacity, such that she did not appreciate the risks inherent in testifying. Further, based on previous outbursts during the proceedings, they feared that Siddiqui would “turn the [trial] into a spectacle,” thus alienating the jury and damaging her prospects for acquittal. Prior to Siddiqui’s testimony, the defense held an ex parte conference with the judge where they aired their concerns. The judge then opened the courtroom to the public, and Siddiqui indicated on the record that she understood (1) that testifying was a significant decision, and one that her counsel had unanimously recommended against; (2) that her testimony had to be relevant; (3) that if she veered off into tangential topics the court may stop her testimony; and (4) that by testifying she would be subject to an intense cross-examination aimed at undercutting her testimony. – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – Siddiqui claimed that she could not confirm that she possessed documents at the time of her arrest in Afghanistan because she was “in a daze.” JA 2371. She stated that the bag in which the documents were found was not hers but rather was given to her. When confronted [**12] with the document referencing mass casualty attacks and listing New York City landmarks, Siddiqui testified that it was a “possibility” that the document was in her own handwriting. JA 2372. After the defense rested, the government presented its rebuttal case. Two FBI agents who were members of Siddiqui’s security detail during her recovery at Bagram recounted several incriminating statements that Siddiqui made to them. Before receiving this testimony, the district court held a hearing to determine whether Siddiqui gave these un-Mirandized statements voluntarily.5 At that hearing, the two FBI agents testified, as did Siddiqui. The district court determined that Siddiqui’s statements were voluntary. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 5 The court conducted this voluntariness inquiry prior to admitting Siddiqui’s testimony, and the government asked Siddiqui about her statements during its cross-examination in an attempt to impeach her. On cross-examination, she denied she made the statements. – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – On February 3, 2010, the jury returned a guilty verdict on all counts of the indictment. The district court sentenced Siddiqui on September 23, 2010. In addition to a number of other enhancements, the court applied the terrorism enhancement [**13] pursuant to U.S.S.G. § 3A1.4. In applying the enhancement, the court found that Siddiqui’s offense was calculated to influence the conduct of the government by intimidation, namely, attempting to frustrate the interview team’s efforts to detain her. Further, based on a number of anti-American statements Siddiqui made before and at the time of the shooting, the court determined that Siddiqui’s conduct was calculated to retaliate against the United States government. The district court sentenced Siddiqui principally to 86 years’ imprisonment and five years of supervised release. Siddiqui timely appealed her convictions and sentence. II. DISCUSSION A. Denial of Siddiqui’s Motion to Dismiss the Indictment Siddiqui raised below, and now reasserts, several challenges to the indictment. According to Siddiqui, the district court should have dismissed Count One, which charged a violation of 18 U.S.C. § 2332, because the United States Attorney General did not timely issue the certification required by 18 U.S.C. § 2332(d). She also argues that the remaining counts are deficient because the underlying statutes do not apply extraterritorially in an active theater of war. We disagree. Section 2332(d) [**14] provides that HN1″[n]o prosecution for any offense described in this section shall be undertaken by the United States except on written certification of the Attorney General . . . [that] such offense was intended to coerce, intimidate, or retaliate against a government or civilian population.” Siddiqui relies on speedy trial principles to conclude that a prosecution [*700] is commenced at the time of arrest or the filing of formal charges. But Siddiqui’s argument here encounters an obstacle: the original complaint on which Siddiqui was arrested did not charge a violation of § 2332. The first instrument to do so was the indictment, which was filed the same day the Attorney General issued the § 2332(d) certification. Siddiqui has an answer to the problem. She points out that the statute requires certification prior to a prosecution for an “offense described in this section.” 18 U.S.C. § 2332(d) (emphasis added). In her view, the Attorney General is required to issue the certification before an accusatory instrument describing facts that could constitute a violation of § 2332 is filed, regardless of whether that instrument actually charges a violation of § 2332. Siddiqui reasons that because the [**15] criminal complaint filed on July 31, 2008 described conduct proscribed by § 2332, the Attorney General’s certification filed the day of the indictment was untimely. Siddiqui’s argument offers an unusual reading of what appears to be straightforward statutory language—a reading that would undercut the very purpose of the provision. HN2Section 2332(d)’s requirement that the Attorney General issue a certification before “prosecution for any offense described in [§ 2332] shall be undertaken” is most naturally read as a requirement that the Attorney General issue the certification either at the time of or before the filing of the first instrument charging a violation of § 2332. This view furthers the purpose of § 2332(d)—namely, ensuring that the statute reaches only terrorist violence inflicted upon United States nationals, not “[s]imple barroom brawls or normal street crime.” See H.R. Conf. Rep. 99-783, at 87, reprinted in 1986 U.S.C.C.A.N. 1926, 1960. Under Siddiqui’s interpretation of the provision, the Attorney General would have to issue the certification any time someone engaged in conduct that could be covered by the statute. This would deprive the Attorney General of the opportunity [**16] to sort through the facts of each case to determine if it merited certification—and prosecution—under the statute. More simply put, Siddiqui’s interpretation would undercut § 2332(d)’s primary objective. Accordingly, the district court did not err in denying Siddiqui’s motion to dismiss Count One of the indictment. Siddiqui next contends that Counts Two through Seven of the indictment should be dismissed because the charging statutes—18 U.S.C. §§ 1114,6 111,7 and 924(c)8—do not have application extraterritorially “in an active theater of war.” This argument is without merit. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 6 HN318 U.S.C. § 1114 prohibits the murder or attempted murder of any United States officer or employee while such officer or employee is engaged in, or on account of, his or her official duties.7 HN418 U.S.C. § 111 punishes those who assault, resist, oppose, impede, intimidate, or interfere with a United States officer or employee while he or she is engaged in, or on account of, his or her official duties.8 HN518 U.S.C. § 924(c) prohibits the use of a firearm during the commission of a crime of violence. – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – HN6″Congress has the authority to ‘enforce its laws beyond the territorial boundaries of the United States.\'” United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) [**17] (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S. Ct. 1227, 113 L. Ed. 2d 274 (1991)). The ordinary presumption that laws do not apply extraterritorially has no application to criminal statutes. United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011). “When the [*701] text of a criminal statute is silent, Congressional intent to apply the statute extraterritorially must ‘be inferred from the nature of the offense.\'” Id. (quoting United States v. Bowman, 260 U.S. 94, 98, 43 S. Ct. 39, 67 L. Ed. 149 (1922)). The statutes underlying Counts Two through Seven apply extraterritorially. Subsequent to the filing of Siddiqui’s brief, we held that HN718 U.S.C. § 1114 applies extraterritorially. Al Kassar, 660 F.3d at 118. We reasoned that “the nature of the offense-protecting U.S. personnel from harm when acting in their official capacity-implies an intent that [the statute] apply outside of the United States.” Id. We see no basis for expecting Congress to have intended to limit these protections to U.S. personnel acting within the United States only. For the same reason, HN8§ 111 applies extraterritorially. See United States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir. 1984); see also United States v. Hasan, 747 F. Supp. 2d 642, 685-86 (E.D. Va. 2010). [**18] Like 18 U.S.C. § 1114, the nature of the offense-protecting United States officers and employees engaged in official duties from harm-implies a Congressional intent that § 111 apply outside of the United States. See Al Kassar, 660 F.3d at 118. HN9As for § 924, which criminalizes the use of a firearm during commission of a crime of violence, every federal court that has considered the issue has given the statute extraterritorial application where, as here, the underlying substantive criminal statutes apply extraterritorially. See, e.g., United States v. Belfast, 611 F.3d 783, 815 (11th Cir. 2010); United States v. Ahmed, No. 10 Cr. 131 (PKC), 2012 U.S. Dist. LEXIS 39451, 2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012); United States v. Mardirossian, 818 F. Supp. 2d 775, 776-77 (S.D.N.Y. 2011). We see no reason to quarrel with their conclusions. Siddiqui’s argument that the statutes, even if generally extraterritorial, do not apply “in an active theater of war” is unpersuasive.9 As the government points out, it would be incongruous to conclude that statutes aimed at protecting United States officers and employees do not apply in areas of conflict where large numbers of officers and employees operate. The district court [**19] appropriately denied Siddiqui’s motion to dismiss Counts Two through Seven of the Indictment. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 9 Indeed, this argument is premised on a misreading of a number of cases. Siddiqui contends that international law “allow[s] an occupying force to try unlawful belligerents only in a military commission,” see Siddiqui Br. 66, and thus extraterritorial application of the statutes at issue would run afoul of the general presumption that Congress intends its statutes to comport with international law. But the portion of Ex parte Quirin, 317 U.S. 1, 30, 63 S. Ct. 2, 87 L. Ed. 3 (1942), that Siddiqui cites merely stands for the more pedestrian observation that unlawful combatants, unlike lawful combatants, may be subjected to trial before a military commission. Moreover, the case Siddiqui cites for the proposition that “[a]t least one court has expressed reservation about extending the extraterritorial reach of § 1114 into Afghanistan because of the sensitive state of the relationship between the two nations,” see Siddiqui Br. 65-66, does not mention § 1114 at all. Instead, the case addressed whether federal courts had jurisdiction to afford habeas corpus relief and the protection of the Suspension Clause to aliens held in [**20] Executive detention at Bagram Airfield. Al Maqaleh v. Gates, 605 F.3d 84, 99, 390 U.S. App. D.C. 352 (D.C. Cir. 2010). – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – B. Admission of Documents under Federal Rule of Evidence 404(b) The district court admitted documents allegedly found in Siddiqui’s possession that explained the construction and use of various weapons and described a “mass casualty attack” on a number of New York City landmarks for the purpose of demonstrating Siddiqui’s knowledge, motive, and intent. Siddiqui argues that [*702] her defense-that she never picked up and fired the Chief Warrant Officer’s rifle-removed those issues from the case and thus admission of the documents was improper. HN10A district court’s evidentiary rulings encounter trouble on appeal only where the district court abuses its discretion. United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009). A district court abuses its discretion when its evidentiary rulings are “arbitrary and irrational.” Id. But even when an evidentiary ruling is “manifestly erroneous,” the defendant will not receive a new trial if admission of the evidence was harmless. Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010). HN11Federal Rule of Evidence 404(b) provides that evidence of a defendant’s prior [**21] crimes, wrongs, or other acts cannot be used to prove that a defendant was a bad fellow and most likely remains one-that he has a criminal nature or propensity and the acts in question are consistent with his nature or tendency towards crime. However, this type of evidence may be admissible for other legitimate purposes, such as demonstrating motive, opportunity, identity, intent, and knowledge. Id. Under our “inclusionary” approach, all “other act” evidence is generally admissible unless it serves the sole purpose of showing a defendant’s bad character. United States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011).10 – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 10 Of course, HN12the strictures of Federal Rules of Evidence 401, 402, and 403 still apply to Rule 404(b) evidence. The evidence must be relevant to an issue in dispute, and its probative value must outweigh the risk of unfair prejudice. See United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – HN13A defendant may, however, forestall the admission of Rule 404(b) evidence by advancing a theory that makes clear that the object the 404(b) evidence seeks to establish, while technically at issue, is not really in dispute. See United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). For [**22] example, a defense theory that the defendant did not commit the charged act effectively removes issues of intent and knowledge from the case. See id at 657; United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988). Siddiqui’s defense was just that-“I didn’t fire the M-4.” But even assuming that Siddiqui’s defense theory effectively removed any issue of her intent or knowledge, the documentary evidence remained relevant to demonstrate Siddiqui’s motive. HN14Motive has been variously defined as “the reason that nudges the will and prods the mind to indulge the criminal intent,” United States v. Benton, 637 F.2d 1052, 1056 (5th Cir. 1981) (internal quotation marks omitted); “the rationale for an actor’s particular conduct,” United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010); and “an emotion or state of mind that prompts a person to act in a particular way,” Charles Alan Wright and Kenneth W. Graham, Jr., Federal Practice and Procedure: Federal Rules of Evidence § 5240. “Although it does not bear directly on the charged elements of a crime, evidence offered to prove motive is commonly admitted.” United States v. Salameh, 152 F.3d 88, 111 (2d Cir. 1998). And unlike issues of knowledge and [**23] intent, the defendant’s motive-an explanation of why the defendant would engage in the charged conduct-becomes highly relevant when the defendant argues that he did not commit the crime. For instance, in Salameh, the defendants were charged with a conspiracy to bomb the World Trade Center. Id. at 108. The district court admitted documents possessed by the defendants that “bristled with strong anti-American sentiment.” Id. [*703] at 111. On appeal, we found those documents admissible to demonstrate the conspiracy’s motive. Id. Here, the documents the government introduced pursuant to Rule 404(b) detail, among other things, the construction of fertilizer and plastic explosives. One document in particular discusses radioactive bombs, biological weapons, and chemical weapons. That document also contains the phrase “mass casualty attack” and lists a number of New York City landmarks, including Grand Central Terminal, the Empire State Building, the Statute of Liberty, and the Brooklyn Bridge. Taken together, these documents, which were in Siddiqui’s possession at the time Afghan officials took her into custody11 and some of which were in her handwriting, supply a plausible rationale for why Siddiqui [**24] would fire a rifle at the American interview team, namely, she harbored an anti-American animus. This motive was relevant to the ultimate issue in dispute at trial-whether Siddiqui picked up and fired the M-4 rifle at the American interview team. Accordingly, the district court did not abuse its discretion in admitting the documents pursuant to Rule 404(b).12 – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 11 In her brief, Siddiqui appears to contend that the government was required to call Afghan witnesses who were present at Siddiqui’s arrest to confirm this fact. We disagree. There was more than sufficient evidence to establish that the documents were in Siddiqui’s possession at the time of her arrest. Some were in her handwriting, and some bore her fingerprints. Moreover, on the day of her arrest, Afghan officials delivered the documents to American military authorities, which also tends to corroborate that Siddiqui possessed the documents when arrested by Afghan authorities.12 Although Siddiqui often characterizes the admitted documents as “adverse and prejudicial,” “incendiary,” and “powerful, prejudicial, and damning,” she never argues in her briefs that the evidence should have been excluded under Federal Rule of Evidence 403 [**25] on a theory that its probative value is substantially outweighed by a danger of unfair prejudice. As such, the argument is waived. See Tolbert v. Queens College, 242 F.3d 58, 76 (2d Cir. 2001); see also Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds by, 521 U.S. 1114, 117 S. Ct. 2501, 138 L. Ed. 2d 1007 (1997). – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – But even if we agreed with Siddiqui that the district court abused its discretion in admitting the documents, that would not end the matter. There would remain the question of whether the error was harmless. HN15An evidentiary error is harmless “if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.” United States v. Cadet, 664 F.3d 27, 32 (2d Cir. 2011) (internal quotation marks omitted). Several factors bear on the inquiry: whether the evidence was tied to “an issue that [was] plainly critical to the jury’s decision”; “whether that [evidence] was material to the establishment of the critical fact or whether it was instead corroborat[ive] and cumulative”; and “whether the wrongly admitted evidence was emphasized in arguments to the jury.” Curley, 639 F.3d at 58 (internal quotation marks omitted). But the most critical factor [**26] is “the strength of the government’s case.” Id. (internal quotation marks omitted). Here, although the government by its own admission “repeatedly referenced the documents introduced at trial,” Government Br. 37, the jury also had ample testimony before it regarding anti-American statements Siddiqui made at the time of the shooting from which it could conclude that Siddiqui harbored an animus towards the United States. And most importantly, the strength of the government’s case was overwhelming. Among other evidence, six members of the American interview team testified that Siddiqui gained control of the [*704] Chief Warrant Officer’s rifle and fired at them. Another three government witnesses who did not observe the shooting testified that they heard M-4 rifle shots. Moreover, after Siddiqui testified, the government introduced the testimony of two FBI agents who had interviewed Siddiqui. According to those agents, Siddiqui, among other things, (1) asked what the penalty for attempted murder was; and (2) noted that “spewing” bullets at Americans was a bad thing. Siddiqui counters that her forensic expert’s opinion that an M-4 rifle had not been fired in the room effectively neutralized the [**27] government’s case against her. However, this forensic expert’s testimony was undermined by one of Siddiqui’s own witnesses, who testified that two rifle shells were recovered from the room, and by a government expert’s testimony that the absence of certain forensic evidence from the room was not necessarily inconsistent with the firing of a weapon. Siddiqui also asserts that our decision in United States v. Colon, 880 F.2d 650 (2d Cir. 1989), requires us to grant her a new trial. She argues that Colon mandates that we assess the strength of the government’s case without reference to the government’s cross-examination of Siddiqui or the incriminating statements she made at Bagram and that Colon requires a new trial because the admission of the documents forced her to testify and she was harmed by doing so. We disagree. In Colon, the defendant was charged with heroin distribution. Id. at 652. His defense was that he did not engage in the charged act. Id. at 658. Nevertheless, the district court admitted evidence concerning two prior instances in which the defendant had sold heroin to demonstrate knowledge and intent-an obvious error. Id. at 656. The defendant then testified, and, in the [**28] words of his counsel, “the [Assistant] U.S. Attorney made a jackass out of him.” Id. at 661 (brackets in original). Specifically, the cross-examination cast doubt on the defendant’s credibility and delved deeply into the circumstances surrounding the defendant’s prior involvement with heroin. Id. Because the record in Colon demonstrated that the defendant’s case was badly damaged by the erroneous admission of the evidence, and because the defense may have felt that there was no alternative but to have the defendant testify as a result, we granted the defendant a new trial. See id. at 661-62. Here, we need not resolve the issue of whether Colon necessitates that we measure the strength of the Government’s case without reference to either Siddiqui’s cross-examination or the admission of the incriminating statements she made at Bagram. Even without that evidence, the government’s case against Siddiqui can only be fairly characterized as devastating. We also disagree with Siddiqui’s claim that Colon requires a new trial because the admission of the 404(b) evidence forced her to testify and her defense was badly damaged by that testimony. Unlike in Colon, the introduction of the 404(b) evidence [**29] here did not necessitate Siddiqui’s testimony from an objective, strategic standpoint. The 404(b) evidence was somewhat cumulative on the issue of whether Siddiqui harbored an anti-American animus, given that numerous witnesses testified as part of the government’s case-in-chief that she made anti-American statements during the shooting incident. Further, even after the introduction of the 404(b) evidence, defense counsel advised Siddiqui not to testify, we presume in large part because her testimony would open the door to the admission of the incriminating statements she made while recovering at Bagram. Colon does not allow a defendant [*705] to make an otherwise harmless error harmful based on her simple assertion that the error compelled her to testify. C. Denial of Defense Counsel’s Application to Keep Siddiqui from Testifying HN16It is well established that criminal defendants have the right to testify in their own defense. Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); see Brown v. Artuz, 124 F.3d 73, 76 (2d Cir. 1997). “This right . . . is . . . essential to due process of law in a fair adversary process.” Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011) (internal quotation marks omitted). [**30] That is because “the most important witness for the defense in many criminal cases is the defendant himself,” and he has the “right to present his own version of events in his own words.” Rock, 483 U.S. at 52. The ultimate decision to testify remains at all times with the defendant; defense counsel, though charged with an obligation to apprise the defendant of the benefits and risks of testifying, cannot make the decision, regardless of tactical considerations. Brown, 124 F.3d at 77-78. Siddiqui’s counsel does not challenge these clearly established principles. Instead, she urges us to craft an exception to the general rule, arguing that in some cases a defendant may be competent to stand trial yet incompetent to exercise her right to testify without the approval of defense counsel. In support of her argument, counsel relies heavily on the Supreme Court’s decision in Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008). There, the Court held that HN17a state may determine that a defendant who is competent to stand trial may nonetheless be incapable of representing himself at trial and may thus insist that the defendant have trial counsel. Id. at 167. The Court noted that a mentally ill defendant may [**31] not possess the ability to execute tasks such as organizing a defense, arguing points of law, and questioning witnesses. Id. at 176-77. It further observed that a prolonged spectacle could result from such a defendant representing himself, and that spectacle would undercut the Constitution’s goal of providing a fair trial. Id. at 177. Counsel’s reliance on Edwards is misplaced. First, as three other circuits have recognized, Edwards holds that HN18a court may require that trial counsel appear on behalf of a mentally ill defendant, not that it must do so. See United States v. Turner, 644 F.3d 713, 724 (8th Cir. 2011); United States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); United States v. deShazar, 554 F.3d 1281, 1290 (10th Cir. 2009). But even if Edwards mandated trial courts to require trial counsel for a discrete group of mentally ill defendants, the case still would have no application here. Common sense dictates that HN19the mental capacity needed to conduct an entire trial is much greater than the mental capacity required to play the more limited role of witness on one’s own behalf. Moreover, the defendant’s right to air her version of events before a jury is “more fundamental to a [**32] personal defense than the right of self-representation.” Rock, 483 U.S. at 52. As such, Edwards does not significantly support, let alone compel, the conclusion that a district court may prevent a mentally ill defendant from testifying on her own behalf if defense counsel moves to keep the defendant off the stand. We question whether the Constitution permits a finding that a criminal defendant is competent to stand trial, yet incompetent to determine whether to testify on her own behalf. But we need not decide that [*706] question today. Here, the district court went to extraordinary lengths to ensure that Siddiqui understood the implications of testifying and had the capacity to testify. Even were we to discern any daylight between the standards governing a defendant’s capacity to stand trial and those for assessing her capacity to determine whether to testify (and then, actually to testify), we would find no reason to upset the district court’s implicit determination that Siddiqui did in fact have the requisite capacity to make the latter decision here. That Siddiqui’s choice to testify-like many defendants’ decisions to testify-was a poor one, does not alter our analysis. See Brown, 124 F.3d at 77-78. D. [**33] Voluntariness of Siddiqui’s un-Mirandized statements at Bagram Siddiqui contends that the district court erred in finding that the incriminating, un-Mirandized statements she gave to two members of the FBI security team while she was hospitalized at Bagram Airfield were voluntary and thus could be used in the government’s rebuttal case after Siddiqui testified. Prior to Siddiqui’s testimony, the court held a hearing to determine the voluntariness of the statements. At that hearing, the two FBI agents testified, and the district court’s ruling credited their testimony. Their testimony established the following. During the course of her stay at Bagram, Siddiqui was tethered to her bed in soft restraints to prevent her escape.13 The agents endeavored to meet Siddiqui’s needs as best they could and never denied her access to the restroom, food, water, or medical attention. Further, Siddiqui had access to a medical call button that allowed her to contact the hospital’s medical staff directly; therefore, she was not entirely dependent on the agents to meet her basic needs. Although Siddiqui was at times in pain and medicated, she was coherent, lucid, and able to carry on a conversation. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 13 These [**34] soft restraints, made of terry cloth and cotton, provided Siddiqui a fair range of mobility. In fact, the restraints provided such mobility that Siddiqui was able to remove them. After Siddiqui removed there straints, the agents positioned the straps such that it was impossible to remove the strap on one hand with the other. The restraints were loose enough to allow her to read, drink, and wash, and were removed when Siddiqui required use of the washroom. – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – Special Agent Angela Sercer spent the most time with Siddiqui. She would arrive in the morning and stay approximately eight hours in Siddiqui’s room. Upon arriving, she would ask Siddiqui if she wanted to talk; if Siddiqui indicated she did not, Sercer would remain quietly in the room as a member of Siddiqui’s security detail. Although the topic of the July 18th shooting did come up, Sercer’s primary objective was to gather intelligence related to another investigation of Siddiqui commenced years earlier. Siddiqui was generally receptive to speaking with Sercer and indicated that she enjoyed their discussions. Special Agent Bruce Kamerman spent significantly less time with Siddiqui. Although he was not initially tasked with interviewing [**35] Siddiqui, supervisors instructed Kamerman to “continue the dialog” when Siddiqui made unsolicited incriminating statements to him. Siddiqui never indicated to Kamerman that she was unwilling to talk. Neither agent gave Siddiqui Miranda warnings. HN20Statements taken from a defendant in violation of Miranda may not be introduced by the government during its case in chief. United States v. Douglas, 525 F.3d 225, 248 (2d Cir. 2008). But because a defendant “must testify truthfully or suffer the consequences,” the government [*707] may introduce un-Mirandized statements to impeach the defendant’s testimony. Id. (internal quotation marks omitted). The government cannot, however, introduce a defendant’s involuntary statements. See, e.g., Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); see also United States v. Khalil, 214 F.3d 111, 121-22 (2d Cir. 2000). Because Siddiqui testified at trial, the government was free to introduce the statements she made at Bagram Airfield so long as those statements were voluntary. HN21The government bears the burden of demonstrating that the defendant’s statements were voluntary. See United States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). [**36] To determine whether a defendant’s statements were made voluntarily, courts look to the totality of the circumstances surrounding the statements. Anderson, 929 F.2d at 99. “Relevant factors . . . include the accused’s age, his lack of education or low intelligence, the failure to give Miranda warnings, the length of detention, the nature of the interrogation, and any use of physical punishment.” Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir. 1989). A defendant’s mental vulnerability also bears on the analysis. See Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). A number of decisions have assessed the voluntariness of a defendant’s statements where the defendant was in medical distress. For example, in Mincey, 437 U.S. at 398-400, the Supreme Court held that a defendant’s statements to police were involuntary where the defendant (1) arrived at the hospital a few hours before the interrogation “depressed almost to the point of coma”; (2) suffered “unbearable” pain; (3) was unable to think coherently; (4) was “encumbered by tubes, needles, and [a] breathing apparatus”; (5) expressed his desire that the interrogation cease numerous times to no avail; and (6) was falling in and out of consciousness. [**37] By contrast, courts tend to view a hospitalized defendant’s statements as voluntary where the defendant was lucid and police conduct was not overbearing. See Khalil, 214 F.3d at 121-22; Pagan v. Keane, 984 F.2d 61, 63 (2d Cir. 1993); Campaneria, 891 F.2d at 1019-20. HN22We review the factual findings underpinning the district court’s voluntariness determination for clear error while subjecting the ultimate conclusion that a defendant’s statements were voluntarily to de novo review. See Khalil, 214 F.3d at 122; see also United States v. Pettigrew, 468 F.3d 626, 633 (10th Cir. 2006); United States v. Bell, 367 F.3d 452, 460-61 (5th Cir. 2004). Doing so, we find no error in the district court’s determination that Siddiqui’s statements were voluntary. Although no Miranda warnings were given and Siddiqui was kept in soft restraints for the duration of her hospital stay, the agents’ conduct was not overbearing or abusive. To the contrary, the agents endeavored to meet her basic needs. Siddiqui conversed freely with the agents, and when she indicated that she did not want to engage in conversation, Special Agent Sercer sat quietly in her room. Further, Siddiqui is highly educated, having earned [**38] her undergraduate degree from Massachusetts Institute of Technology and a doctorate from Brandeis University. Most importantly, just as in Khalil, Pagan, and Campaneria, Siddiqui was lucid and able to engage the agents in coherent conversation despite the pain attendant to her injury. Thus, the district court did not err in allowing the government to introduce the statements Siddiqui made while recuperating [*708] at Bagram Airfield to rebut her trial testimony. E. Application of the Terrorism Enhancement to Siddiqui’s Sentence Finally, we address Siddiqui’s challenge to the district court’s application of the terrorism enhancement under U.S.S.G. § 3A1.4. HN23The enhancement increases by twelve the defendant’s offense level and elevates the defendant’s criminal history category to category six if the defendant’s offense “is a felony that involved, or was intended to promote, a federal crime of terrorism.” Id. A “federal crime of terrorism” is 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 a violation of any one of a number of enumerated statutes, including 18 U.S.C. §§ 1114 and 2332. [**39] U.S.S.G. § 3A1.4 app. n. 1; 18 U.S.C. § 2332b(g)(5). The district court found that Siddiqui’s offenses were calculated to influence or affect government conduct and that they were calculated to retaliate against government conduct. As to the former, the court determined that Siddiqui’s offenses were “calculated to influence or affect by intimidation the government’s fulfillment of its official duties including, among other things, the interview team’s efforts to interview . . . and . . . detain her.” JA 2848. The court, pointing to statements Siddiqui made while in Afghan custody, determined that Siddiqui began scheming to avoid transfer to American custody on July 17, 2008, and that the scheming came to fruition when Siddiqui gained control of the Chief Warrant Officer’s rifle and fired at the American interview team. In support of the latter finding, the district court highlighted testimony regarding various anti-American statements Siddiqui made while in custody. In the court’s estimation, these statements demonstrated Siddiqui’s intent to retaliate against the United States government. Siddiqui argues that the district court erred in applying the enhancement. She claims that application [**40] of both the terrorism enhancement and the Guidelines’ official victim enhancement resulted in impermissible double counting. She also contends that her conduct was not “calculated,” as required by the plain language of the enhancement. According to Siddiqui, long-term planning is a necessary condition to finding that a defendant’s offense was “calculated.” Siddiqui’s contention that the district court committed error in applying both the official victim enhancement and the terrorism enhancement is devoid of merit. HN24″[A] district court calculating a Guidelines sentence may apply multiple [enhancements] based on the same underlying conduct,” especially where “each of the multiple [enhancements] . . . serves a distinct purpose or represents a discrete harm.” United States v. Maloney, 406 F.3d 149, 152, 153 (2d Cir. 2005). The terrorism and official victim enhancements both address discrete harms resulting from Siddiqui’s conduct-HN25the official victim enhancement “deals with the selection of victims based on their status as government employees,” and HN26the terrorism enhancement addresses those acts that are calculated to influence government conduct or to retaliate against a government. In re Terrorism Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 153 (2d Cir. 2008). [**41] Accordingly, application of both the terrorism and official victim enhancements does not constitute impermissible double counting. See id. Resolution of Siddiqui’s challenge to the district court’s finding that her offense was “calculated” merits more [*709] discussion. As previously noted, HN27for the terrorism enhancement to apply, the defendant’s offense must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A) (emphasis added). HN28When we interpret the Guidelines, we “giv[e] the words used their common meaning.” United States v. Stewart, 590 F.3d 93, 137 (2d Cir. 2009). “Calculated” means “planned-for whatever reason or motive-to achieve the stated object.” Awan, 607 F.3d at 317; see Stewart, 590 F.3d at 137 (“The conventional meaning of ‘calculated’ is ‘devised with forethought.\'”). Many HN29courts (including this one) interpret “calculated” as nearly synonymous with intentional. See Stewart, 590 F.3d at 137; see also United States v. Chandia, 675 F.3d 329, 333 n.3 (4th Cir. 2012); United States v. El-Mezain, 664 F.3d 467, 571 (5th Cir. 2011); United States v. Jayyousi, 657 F.3d 1085, 1115 (11th Cir. 2011). [**42] Thus, “if a defendant’s purpose in committing an offense is to ‘influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,\'” application of the terrorism enhancement is warranted. See Stewart, 590 F.3d at 137 (emphasis added) (quoting 18 U.S.C. § 2332b(g)(5)(A)). Where, however, “there is no evidence that the defendant sought to influence or affect the conduct of the government,” the enhancement is inapplicable. Id. (internal quotation marks omitted). Most cases applying the terrorism enhancement have involved conduct that spanned a significantly greater length of time than the conduct here. See, e.g., Awan, 607 F.3d at 310-11; United States v. Salim, 549 F.3d 67, 70-71 (2d Cir. 2008); In re Terrorist Bombings, 552 F.3d at 103-05 (2d Cir. 2008); United States v. Meskini, 319 F.3d 88, 90-91 (2d Cir. 2003). Relying on this observation, Siddiqui argues that “calculation,” as used in the enhancement, incorporates a long-term planning requirement. We disagree. HN30That long-term planning is present in many of the cases applying the terrorism enhancement does not make it a condition necessary to finding that a defendant’s offense was [**43] calculated to influence government conduct or to retaliate against a government. Instead, the terrorism enhancement is applicable where a defendant acts according to a plan-whether developed over a long period of time or developed in a span of seconds-with the object of influencing government conduct or retaliating against a government. The day before the shooting incident here, Siddiqui repeatedly implored Afghan police officials not to turn her over to American forces. Siddiqui gained control of an M-4 rifle and fired on the American interview team attempting to take her into United States custody the following day. Under these circumstances, the district court did not clearly err14 in its determination that Siddiqui’s offense was calculated to influence government conduct-i.e, the United States’ attempts to take Siddiqui into custody-by intimidation or coercion. – – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – – 14 We decline Siddiqui’s invitation to apply a searching de novo review here. Because the district court’s finding on this score is factual, clear error review is appropriate. See Salim, 549 F.3d at 79; see also El-Mezain, 664 F.3d at 571. – – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – We also find that the district court did not clearly err in determining that Siddiqui’s [**44] offense was calculated to retaliate against the United States. While in Afghan custody prior to the shooting incident, Siddiqui referred to the United States as invaders, and when queried about the bomb-making documents found in her possession, Siddiqui indicated that [*710] the target of those bombs were “the foreigners.” See JA 3022. What’s more, shortly after firing on the American interview team, Siddiqui stated: “I am going to kill all you Americans. You are going to die by my blood”; “death to America”; and “I will kill all you motherfuckers.” Taken as a whole, this evidence provides a sufficient factual basis for the district court’s conclusion that Siddiqui’s offense was calculated to retaliate against the United States. Accordingly, the district court did not err in applying the terrorism enhancement. III. CONCLUSION For the foregoing reasons, and for the reasons provided in the accompanying summary order, Siddiqui’s convictions and sentence are hereby affirmed.
    • DXer said

      UNITED STATES OF AMERICA, Appellee, -v.- AAFIA SIDDIQUI, Defendant-Appellant.UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

      2012 U.S. App. LEXIS 22683

      November 5, 2012, Decided

      NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

      SUBSEQUENT HISTORY: As Amended November 15, 2012.
      Decision reached on appeal by United States v. Siddiqui, 2012 U.S. App. LEXIS 22728 (2d Cir. N.Y., Nov. 5, 2012)

      CASE SUMMARY

      PROCEDURAL POSTURE: Defendant appealed her conviction on numerous offenses, including violating 18 U.S.C.S. §§ 2332 and 1114, and the 86-year sentence imposed by the United States District Court for the Southern District of New York. She asserted two claims as to her conviction and three claims as to her sentence.

      OVERVIEW: Defendant’s argument that the district court committed reversible error in admitting testimonial hearsay in violation of the Crawford decision failed. The Afghan officials had no expectation or awareness that their statements regarding what documents were found on defendant when she was arrested would later be used at a trial, and the government did not offer those statements to prove the truth of the matter asserted. The district court did not commit reversible error in failing to give an instruction to the jury requiring them to be unanimous as to the specific identity of defendant’s intended victims for the attempted murder counts. She unsuccessfully argued that the district court erred by refusing to horizontally depart in her criminal history category and thereby to mitigate the effects of the terrorism enhancement on her sentence. Her claim of procedural error predicated on lack of notice was without merit. The district court did not improperly invade the province of mental health professionals when it commented on her likelihood of recidivism. Any error by the district court in finding defendant’s conduct to be premeditated would be harmless.

      AMENDED SUMMARY ORDER

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the United States District Court for the Southern District of New York be AFFIRMED.

      Appellant Aafia Siddiqui appeals from a judgment of the United States District Court for the Southern District of New York (Berman, J.), convicting her after a jury trial of numerous offenses and sentencing her principally to 86 years’ imprisonment. In an accompanying published opinion, we address five issues that Siddiqui raises on appeal. [*2] We address the remaining issues herein. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

      Siddiqui contends that reversal is warranted because the district court admitted testimonial hearsay in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and that the error was not harmless beyond a reasonable doubt. Her argument follows several steps. She claims that the testimony of two United States Army officers that they were informed by certain Afghan officials that Siddiqui was in possession of incendiary documents at the time of her arrest violated Crawford. Siddiqui argues that without this testimony, the government could not establish that Siddiqui possessed the documents when she was arrested. And according to Siddiqui, because the “real relevance” of the documents is that Siddiqui possessed them in close proximity (in time) to the shooting incident, the documents would have been excluded under Federal Rule of Evidence 403 but for the officers’ testimony.

      Siddiqui’s Crawford challenge stumbles at its first step. HN1The Confrontation Clause bars only testimonial hearsay used to establish the truth of the matter [*3] asserted. See United States v. Paulino, 445 F.3d 211, 216-17 (2d Cir. 2006). A testimonial statement is “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Michigan v. Bryant, 131 S.Ct. 1143, 1153, 179 L. Ed. 2d 93 (2011) (internal quotation marks and brackets omitted). Typical testimonial statements include affidavits, depositions, and grand jury testimony. See Crawford, 541 U.S. at 51-52. The outer bounds of what constitutes a testimonial statement remain unclear. But “the critical factor in identifying a Confrontation Clause concern is the declarant’s awareness or expectation that his or her statements may later be used at trial.” United States v. Farhane, 634 F.3d 127, 163 (2d Cir. 2011) (internal quotation marks omitted).

      Here, we have little doubt that the Afghan officials had no expectation or awareness that their statements regarding what documents were found on Siddiqui when she was arrested would later be used at a trial. When these statements were made, Siddiqui had not yet fired upon the American interview team. The United States’ interest in Siddiqui was primarily military in nature. This is underscored by the fact that the statements were conveyed [*4] to American military personnel, not domestic law enforcement officers. As such, there was no Crawford violation. See Bryant, 131 S.Ct. at 1154.

      We note also that the government did not offer these statements to prove the truth of the matter asserted, but rather to show their effect on the listeners-in other words, to explain the United States’ interest in interviewing Siddiqui. The district court gave a limiting instruction to this effect. Even if, as Siddiqui appears to contend, allowing the testimony was impermissible under hearsay rules, such an error would be harmless because (1) there was other evidence that strongly suggested the documents were in Siddiqui’s possession at the time of her arrest; and (2) as explained in the accompanying published opinion, admission of the documents was harmless.

      Next, in an argument that she herself characterizes as advancing a “novel theor[y],” Siddiqui Reply Br. 3, Siddiqui contends that the district court committed reversible error in failing to give an instruction to the jury requiring them to be unanimous as to the specific identity of Siddiqui’s intended victims for the attempted murder counts. We disagree.

      The statutes at issue here HN2prohibit [*5] the attempted killing of “a national of the United States,” 18 U.S.C. § 2332, and “any officer or employee of the United States while such officer or employee is engaged in or on the account of the performance of official duties,” 18 U.S.C. § 1114. Because the statutes do not specify the elements of “attempt to kill,” the elements are those required for attempted murder at common law, which include an intent to kill. See Braxton v. United States, 500 U.S. 344, 351, 111 S. Ct. 1854, 114 L. Ed. 2d 385 n.* (1991).

      HN3Federal juries must be unanimous as to each element of an offense. Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). However, “a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element.” Id. “[F]or example, [where] an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement-a disagreement about means-would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force.” Id. Courts have not developed [*6] a bright line test for distinguishing between an element of a crime and a “brute fact.” Instead, they look to the statutory language, tradition, and fairness concerns, such as the likelihood that treating a fact as a means rather than an element would allow “wide disagreement among the jurors about just what the defendant did, or did not, do” and the risk that the jury may convict on bad reputation alone. Id. at 819.

      Here, HN4the relevant statutory language—prohibiting the attempted killing of “a national” and “any officer or employee—suggests that Congress did not intend that the government had to prove that the defendant had a particular individual in mind as an element of the crime. Cf. United States v. Talbert, 501 F.3d 449, 451 (5th Cir. 2007); United States v. Verrecchia, 196 F.3d 294, 299 (1st Cir. 1999). Viewing the identity of the intended victim as a “brute fact” rather than as an element does not implicate fairness concerns. It does not allow for wide juror disagreement as to the defendant’s acts and does not create or aggravate the risk that the jury would convict on bad reputation alone. See Richardson, 526 U.S. at 819.

      Indeed, a contrary interpretation would lead to absurd [*7] results. For instance, under Siddiqui’s interpretation of the statute, a defendant who fired one shot at a group of United States employees or nationals with the intent to indiscriminately kill one of them, but not an intent to kill a particular individual, could not be convicted under the statutes. For these reasons, we reject Siddiqui’s argument that the district court was required to instruct the jury that they had to be unanimous as to which United States employee or national Siddiqui intended to kill.

      The final three arguments that Siddiqui advances concern sentencing. She contends that the district court erred by refusing to “horizontally depart” in her criminal history category and thereby to mitigate the effects of the terrorism enhancement on her sentence. HN5We will not review a district court’s refusal to alter a criminal history category unless the court “misapprehended the scope of its authority to depart or the sentence was otherwise illegal.” United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005); see United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006). Because there is nothing in the record to suggest that the district court did not appreciate or understand its [*8] authority to depart or that the sentence was otherwise illegal, we reject Siddiqui’s argument.

      Next, in a somewhat unfocused argument, Siddiqui contends that (1) “the district court erred procedurally by not providing notice to defense counsel that recidivism was going to be a predominant concern” at sentencing; and (2) the district court imposed a “substantively unreasonable” sentence by finding that without treatment Siddiqui was likely to be a recidivist, and thereby drew conclusions that were clearly the province of mental health professionals. Siddiqui Reply Br. 49. Siddiqui’s claim of procedural error predicated on lack of notice is without merit. Indeed, the very Supreme Court case on which Siddiqui relies notes that HN6″[g]arden variety considerations of culpability, criminal history, likelihood of re-offense, seriousness of the crime, nature of the conduct, and so forth should not generally come as a surprise to trial lawyers who have prepared for sentencing.” Irizarry v. United States, 553 U.S. 708, 716, 128 S. Ct. 2198, 171 L. Ed. 2d 28 (2008) (internal quotation marks omitted) (emphasis added). In addition, and more importantly, defense counsel, in their sentencing submission to the district court, explicitly [*9] addressed the issue, writing: “We understand that the Court, in light of our continued emphasis upon Dr. Siddiqui’s serious mental illness and the role it played in her offense conduct, has to speculate as to Dr. Siddiqui’s future dangerousness when addressing the issue as to what sentence will protect the public from her.” JA 3095.

      Nor did the district court improperly invade the province of mental health professionals when it commented on the defendant’s likelihood of recidivism. Contrary to Siddiqui’s contentions, the district court’s comments here are a far cry from the comments to which this Court took exception in United States v. Cossey, 632 F.3d 82, 88 (2d Cir. 2011), and United States v. Dorvee, 616 F.3d 174, 183-84 (2d Cir. 2010). Moreover, the district court relied on other factors-such as the seriousness of the offense and the need for general deterrence-in fashioning its sentence. Under the circumstances of this case, a sentence of 86 years’ imprisonment is substantively reasonable.

      Finally, we need not address Siddiqui’s claim that the district court erred in finding that her conduct was premeditated. Even without a finding of premeditation, Siddiqui’s Guidelines range [*10] would have been life imprisonment. As such, the district court characterized the dispute regarding premeditation as academic before addressing the issue. Any error in finding Siddiqui’s conduct to be premeditated would be harmless. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009).

      After a thorough review of the record, we find Siddiqui’s remaining arguments to be without merit.

      For the foregoing reasons, and for the reasons stated in the accompanying published opinion, the judgment of the district court is hereby AFFIRMED.

  3. DXer said

    Imran demands release of Dr Aafia

    September 12, 2012 – Updated 1915 PKT
    From Web Edition

    http://www.thenews.com.pk/article-67444-Imran-demands-release-of-Dr-Aafia

  4. DXer said

    A radiant Aafia Siddiqui waxes eloquent in 1991 in Houson on the rights of women under islam. This is before she went on to MIT to study genetics.

  5. DXer said

    As I recall, Dr. Ayman has said he’ll target for killing anyone who talks ill of Aafia. Thus at his request I have deleted almost all material from the blog about Aafia. (Though I have to say the treatment was pretty fair and balanced and gave prominent feature to the picture of her as a beaming graduate holding roses). After 911, she remarried KSM’s nephew, one of the key 911 operatives assisting the hijackers enter the country. He had been with Al-Hawsawi in UAE. Al-Hawsawi the one who had the anthrax spraydrying documents on his labtop. KSM’s nephew (al-Balucchi) asked Aafia to help out research biological weapons and she says she spent about 6 months at a lab at a Karachi technical institute.

    As to the reported trip to Africa to meet with Atef, I just would note that it is my recollection that expert and author Deborah Scroggins did not find any evidence to corroborate those reports and so IMO it remains unconfirmed.

    • DXer said

      Ex-US attorney general to visit Dr Aafia’s family, August 24, 2012
      http://www.dailytimes.com.pk/default.asp?page=2012824story_24-8-2012_pg12_12

      Comment: As the distinguished counsel for Blind Sheik Abdel-Rahman, Ramsey Clark would have fascinating insights into the case of Aafia Siddiqui, especially after his visit with Ismat and Fowzia.

      • DXer said

        The former US Attorney General, the blind sheik’s counsel, is lending his considerable stature to advocate the repatriation of Aafia Siddiqui.

        Asian News International (ANI)

        August 27, 2012 Monday

        Dr Aafia was victimised by international politics for power: Ex-U.S. Attorney General

        Karachi, Aug. 27 (ANI): Former U.S. Attorney General Ramsey Clark has said that Dr. Aafia Siddiqui is innocent and has been victimised by the international politics for power.

        “Dr Aafia Siddiqui was victimised by the international politics being played for power. I haven’t witnessed such bare injustice in my entire career,” the Daily Times quoted Clark, as saying.

        “Neither did Dr Aafia kill anyone, nor did she attempt at. In fact she was shot thrice and should be released immediately,” he said, adding that relations between Pakistan and the U.S. could be strengthened through repatriation of Dr Aafia.

        Clark expressed his intention to gather people in America, for a one-point agenda of Dr Aafia’s repatriation.

        “Significant peace and justice activists will join me in promoting this agenda. Under the law, justice should be provided to each and everyone without any condition,” he said.

        Clark hailed the role of Pakistani people and particularly lawyers, saying that the nation’s voice on state level could play a significant role in Dr Aafia’s repatriation. He vowed that he would raise his voice for her repatriation at all levels in the U.S.

        A U.S. court had sentenced Dr. Aafia to 86 years in solitary confinement for attempting to murder trained soldiers, when she was in their captivity. (ANI)

        Comment: I greatly admire a woman, a peace activisit, who knows him well and admires him. I hope he can learn some details of her last decade and fill in some gaping holes. And of course, I hope he educates himself on the matter before enlisting peace activists to put their hard won reputations on the line.

        Source [Asian News International (ANI)]

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      • DXer said

        http://www.egyptindependent.com/news/jama-al-islamiya-dozens-jihadis-join-syrian-rebels-within-days

        Assem Abdel Maged, media official at Jama’a al-Islamiya, has said that a group of jihadis are ready to travel to Syria within days to join the rebels in an attempt to overthrow Syrian President Bashar al-Assad.

        Abdel Maged told Al-Masry Al-Youm that other groups had previously fought overseas, including in Afghanistan.

        Meanwhile, Mohamed al-Zawahiri, brother of Al-Qaeda leader Ayman al-Zawahiri, denied rumors that he had taken up arms in Syria.

        “I did not and will not travel to Syria, and I have no intention to leave Egypt now to start with,” he said. “All that has been said about me traveling with jihadis to Syria is absolutely not true.”

        Magdy Salem, leader of Tala’e al-Fateh (Vanguards of Islamic Conquest), one of the jihadi movements that split from the Egyptian Islamic Jihad movement, said that his movement has not officially called for its members to travel to Syria.

        “The participation of jihadis in the liberation of Syria is not a general trend in the jihad movement,” he said. “Everyone is not doing enough to support Syria, but whoever decides to travel there, his decision is individual and has nothing to do with us.”

        Informed sources said that the jihadis will fight with the Free Syrian Army, and denied any rift between them.

        The source pointed out that a number of members of jihad organizations are in Syria with the rebels, after they fought with the Libyan rebels who revolted against Muammar Qadhafi and contributed to his fall.

        According to the source, Egyptian jihadis will get together with other Arab fighters in one of the neighboring countries and will wait until they are provided with the needed weapons to enter the country.

        Comment:

        Peace activists should work towards nonproliferation and non-violence. Aafia, who says she worked for 6 months studying biological weapons at Karachi technical institute at the request of her new husband Al-Balucchi, a key 911 operative, does not represent the ideals that peace activists should be prioritizing. The blind sheik’s lawyer Ramsey Clark is misleading peace activists in advocating that they take up her cause. An issue to focus on instead is how did Syria obtain its chemical weapons? Who sold the materials and profited? Did they know the use to which the equipment and materials would be put?

        With respect to Aafia, the key bit of advocacy would be to establish the facts as to her whereabouts for the missing years (so as to establish the bona fides of the suggestion she was detained and mistreated). Ramsey should meet with her uncle in developing his factual background and corroborating what Fowzia is telling him.

        Someone profited by actions which now has posed the world with these uncertainties. Follow the money.

        • DXer said

          Here is background on Vanguards of Islamic Conquest. According to reported Canadian legal decisions, Mahmoud Mahjoub was #2. His bail was denied on October 5, 2001.

          Egypt: Information on an organization called Vanguards of Islamic Conquest, or Tala’i al-Fatah
          http://www.unhcr.org/refworld/country,,IRBC,,EGY,,3f7d4d9023,0.html

          I have always argued that the mailed anthrax was always to retaliate for the rendering and detention of senior EIJ officials and that and that Dr. Zawahiri played a key role.

          Who does Assem Abdel Maged, media official at Jama’a al-Islamiya, think is responsible for the Fall 2001 anthrax mailings?

          What about Mohamed al-Zawahiri, brother of Al-Qaeda/EIJ leader Ayman al-Zawahiri?

          What about Magdy Salem, leader of Tala’e al-Fateh (Vanguards of Islamic Conquest)?

    • DXer said

      The thesis notes in passing that there are some witnesses who place Atef in Sierra Leone in June 2001 with Aafia Siddiqui, a Brandeis PhD from Boston. It is by no means confirmed (and the expert I rely upon for guidance after careful study and a published book WANTED WOMEN does not credit the report. Besides, where there is ambiguity it makes sense to write the history so as to please the Dr. Ayman who is said by his friends to be prickly and mean.

      I described the background in 2004.
      https://groups.google.com/forum/?fromgroups=#!topic/alt.true-crime/IORKqEG53vA

      I wrote at the time:
      “According to witnesses, Brandeis neurologist Aafia Siddiqui was in
      Sierra Leone in June 2001 at the same time as Muhammed Atef, Al
      Qaeda’s military commander. When Glenn Simpson of the Wall Street
      Journal broke the story yesterday, based on a UN dossier, I emailed
      the two attorneys who have represented Aafia’s family to ask if there
      was any information on her whereabouts in June 2001 that contradicted
      the report. I got no response. (In the past, ACLU Attorney Lamoreaux
      has been very quick to offer me evidence in conflict with reports in
      the media.) And so in terms of connection, until there is conflicting
      evidence, it would appear that Al Qaeda’s military commander met with
      Aafia in June 2001. Atef’s involvement is significant, not merely
      because he was Al Qaeda’s military commander, but because the group
      claiming that the Operation “Winds of Black Death” was 90% complete
      used his name. Atef apparently was killed in a bombing raid in Fall
      2001. …

      According to the Wall Street Journal, it would appear that the
      fugitives wanted for the 1998 embassy bombings — for whom Attorney
      General Ashcroft issued the alert along with Aafia — are thought to
      be part of an intact cell.

      Did Aafia have potential access to the collection of anthrax
      strains at Brandeis? Did that long-held collection include Ames, the
      anthrax used in the Fall 2001 mailings? On March 11, 2002, the
      Brandeis General Counsel sent an email advising that the federal
      authorities had subpoenaed records in connection with the
      investigation of the anthrax crimes.

      To: All Faculty/PIs/Scientists/Postdocs/Research Staff in Biology,

      Biochemistry, Chemistry, Physics, Rosenstiel and Volen

      From: Mel Bernstein, Provost and Senior Vice President for Academic
      Affairs

      Judith R. Sizer, General Counsel

      Date: March 11, 2002

      Re: URGENT: Response to Federal Grand Jury Subpoena

      A federal grand jury in Washington, D.C. has recently issued subpoenas
      to a number of research universities, including Brandeis, in
      connection with the ongoing investigation by the Department of Justice
      into possible illegal use of bacillus anthracis (anthrax).

      In its response to the subpoena, the University must disclose
      information concerning every present and former faculty member,
      employee or other person affiliated with Brandeis (e.g., post-doctoral
      fellows, visiting scholars) who has maintained or worked with anthrax
      at Brandeis in the last twelve years (or in the last twenty years, if
      the anthrax, or an anthrax simulant, was in dry form).

      In order to ensure the University’s timely response to this subpoena,
      please advise us by Friday, March 15, 2002, whether or not you, or
      anyone else to your knowledge, has ever maintained, handled, stored,
      destroyed or transferred any strain of anthrax in any Brandeis
      laboratory or facility on or after January 1, 1990 (or, in the case of
      dry, powdered, dry aerosolized or weaponized anthrax or anthrax
      simulants, such as bacillus thuringiensis, bacillus globigii, bacillus
      cereus and bacillus subtilis, any use,production or manufacture or on
      or after March 1, 1982).

      PLEASE BE SURE TO RESPOND TO THIS INQUIRY, EVEN IF JUST TO CONFIRM
      THAT YOU HAVE NO KNOWLEDGE OF ANY USE OF ANTHRAX OR ANTHRAX SIMULANTS
      AS DESCRIBED ABOVE. You are welcome to respond to this message by
      reply e-mail, if you wish. In order to provide a comprehensive
      response to the grand jury, we need to hear from all members of the
      Brandeis community who have received this message.

      If you have any questions or comments, please contact Ms. _____ at
      XXXX@brandeis or XXXXXX. Many thanks for your cooperation.

      In late February 2002, William Broad of the New York Times
      explained:

      “In an important step for narrowing the pool of anthrax suspects, the
      Justice Department is sending subpoenas to microbiology laboratories
      across the country for samples of the Ames strain of Bacillus
      anthracis, the kind used in the letter attacks in the fall.

      Scientists working for the federal government said they hoped that
      studying the samples’ genetic fingerprints would help determine which
      of 12 or more laboratories is the likely source of the bacteria in the
      attacks.”

      Scott Shane of the Baltimore Sun wrote on February 22, 2002 of
      the subpoenas:

      “But even as investigators pursued possible links between military
      research and the anthrax-laced letters, they were learning of more
      laboratories that have had the Ames strain of anthrax used in the
      attacks. At last count, 25 such labs were identified, including
      facilities in at least five foreign countries — and investigators
      think there are more, said sources familiar with the work.”

      In November 2001, the Hazmat Team and the State Department of
      Health was called to Brandeis after three reseachers were doing
      research with anthrax and Administration officials were concerned
      there might be contamination. The scientists were confident all
      scientific protocols had been followed but Hazmat was called
      nonetheless. The research had been done after the anthrax mailings in
      response — seeking means to detect anthrax spores. Anthrax was used
      that had been at Brandeis a long time, having been acquired at a time
      before federal regulations in 1997 required that transfers be
      recorded. The lab was in the Kalman Building, which was part of the
      complex of buildings adjoining the Volen Center. Brandeis researchers
      Daniel Perlman and Inga Mahler had “decided to focus on developing a
      solid growth medium for cultivating B. anthracis that might be usable
      in the field with a minimum of equipment. They further developed the
      growth medium for use at room temperature thereby obviating the need
      for equipment such as incubators for sustaining an elevated
      temperature.” The pair obtained a patent issued March 2004 titled
      “Selective growth medium for Bacillus anthracis and methods of use.”

      Dr. Perlman has been innovative on a wide range of consumer
      products, such as involving Vitamin E to milk; Dr. Mahler had
      published on the subject of gram positive and gram negative bacteria
      (the subject underlying the patent) in the Journal of Bacteriology in
      1989. Dr. Mahler advises me by email that the strain of Bacillus
      anthracis they used in December 2001 was ordered by her group at
      Brandeis almost 40 years ago. It came from the American Type Culture
      Collection and was kept viable, together with other stock strains.
      She explains that before 9/11 you could simply obtain the organism
      from culture collections or colleagues. Their offices are in
      Abelson-Bass-Yalem, adjoining the Volen Center where Aafia’s lab
      primiarly was located. Within the complex of buldings adjoining the
      Volen Center, Abelson-Bass-Yalem was home to Biological Physics.

      Dr. Mahler advises me that the strain used (referred to in the
      paper as MC 607) — MC stands for Rosenstiel Center — was Vollum.
      Vollum is a strain that like Ames is used to challenge vaccines; it is
      marginally less lethal but still was used by the Russians as their
      strain of choice. Dr. Mahler forthrightly reports that she does know
      of any Ames on campus. Dr. Perle did not respond to my email query.

      Aafia Siddiqui, for whom the FBI has issued an international
      alert, studied in the neurological sciences at Brandeis. She obtained
      her PhD in 2001, having graduated from MIT with a degree in biology in
      1994. The Visual Lab at which Aafia worked had rules: “No Hitting, No
      Punching, No Pushing, No Grabbing, No Biting.” Judging from its
      internet page, the lab seems to have been a pleasant place to work and
      emphasizes in its operating manual that if you don’t know “ask.” The
      lab’s work under Robert Sekuler, mainly funded by a grant from the
      NIH, related to how we remember, forget, or misremember things. Her
      2001 183-page thesis “Separating the components of imitation,” which
      concerns visual learning and visual discrimination, is very far
      removed from questions like the Palestinian conflict or creating a
      fine powder using a mini-spraydryer. It is available online for
      purchase.

      The university webpage explains:

      “The Neuroscience laboratories are housed within the Volen Center and
      adjoining buildings, and this close proximity facilitates the high
      degree of collaboration and exchange for which Brandeis has become
      famous. There are presently 22 Neuroscience faculty found in six
      participating departments (Biology, Biochemistry, Psychology, Physics,
      Chemistry, and Computer Science). There are today approximately 35
      Neuroscience Program Ph.D. students, who often work side-by-side with
      Ph.D. students in the other Life Sciences graduate programs at
      Brandeis.”

      All students are expected to attend the regular Monday afternoon
      Neuroscience seminars (3:30 pm), most of the Wednesday Life Sciences
      seminars at 4:00 pm. and other relevant seminars in Neuroscience.

      “In the first year of their Ph.D. program, students do 4 nine-week
      rotations in different laboratories of their choosing. First-year
      course work includes a core class in principles of neuroscience, and
      intensive graduate level seminars that give students experience in
      reading original research literature and making oral presentations.
      Graduate research advisors are typically chosen at the end of the
      first year.”

      So one question is: what different labs did Aafia work in during
      her first year?

      Aafia is not a geneticist as reported yesterday by the Wall Street
      Journal. Nor is it likely she is a “senior Al Qaeda leader” as
      reported today by the Financial Times. (She wrote a paper on the role
      of women in islam which may provide insights). But as we collectively
      try to understand where Aafia is — and what her role was — perhaps
      we all can agree that she is indeed astonishing.”

      • DXer said

        GAO, did the beautiful and pious Aafia Siddiqui have potential access to the virulent Ames strain at the University of Texas Medical School at Houston? She reports she was tasked by someone named “Abu Lubaba” to research germ warfare. Veterinarian and anthrax expert Martin Hugh-Jones, a professor at Louisiana State University, has said: “It was like trading baseball cards.” Hugh-Jones reports he got most of his anthrax from Peter Turnbull at the Porton Down lab in Great Britain, one of those that had received the Ames strain directly from Ft. Detrick. Dr. Theresa Koehler at Houston and Hugh-Jones discussed the distribution of Ames on NPR in January 2002:

        Ms. KOEHLER: Because Ames is used by investigators all over the world, does it matter if originally the strain came from Texas or came from Iowa? I don’t think so.
        ***

        Mr. MARTIN HUGH-JONES (Louisiana State University): I think the most important point is that we didn’t have Ames in this country in anybody’s collection prior to 1980. I think that’s very, very clear. And I think that limits the list of possible suspects quite considerably.
        ***

        KESTENBAUM: Martin Hugh-Jones also has an answer to the mystery of why one paper listed the Ames strain as dating back to 1932. He was an author on that paper. When his team got the Ames sample, it was labeled `10/32,’ which turns out to have meant `Sample number 10 out of 32.’ But they interpreted it as October 1932. David Kestenbaum, NPR News, Washington.

        In 2001, Dr. Theresa M Koehler held a faculty appointment at the UT Graduate School of Biomedical Sciences. She was Associate Professor of Microbiology and Molecular Genetics. She has had grants from the CIA, the National Institutes of Health, and others for her work on virulence. Her office was in the same complex, in the connected John Freeman Building. Aafia’s sister-in-law, Dr. Lubna Khawaja, had an office there. In Fall 2001, Dr. Koehler said she had taken the anthrax vaccine and that she got anthrax strains from Porton Down. In the Spring of 2003, Dr. Koehler explained that “It’s critical to use a genetically complete strain of the [anthrax] bacterium in experiments involving virulence.” A government study reported in April 2003 found that all of the labs that had received grants from the National Institutes of Health had unobstructed access to the floors with critical labs.

        Ten million gallons of water were unleashed on the UT Medical School at Houston June 9, 2001 by Tropical Storm Allison. The basement, where the anthrax lab was located, was the hardest hit. More than 400 emergency personnel (internal and contracted) attempted to address the devastation. Throughout June, no equipment could be removed or powered up. Stairwell doors needed to be kept closed. By the first week of July 2001, the basement and ground floor was still off limits, and only one entrance was available. Ground floor occupants needed to continue to work at their temporary sites. Gross mold spore counts continued to be beyond acceptable limits in the basement, which was ventilated separately from the rest of the building.

        The building was opened for business on July 11, 2001 but the ground floor and basement were construction remediation sites and off-limits except to access elevators to upper levels. Two entrances to the building were available: on the Webber Plaza side of the building near the circle drive and at the breezeway near the guard’s desk. Occupants were reminded in an employee newsletter not to block open stair well doors on any floor. The newsletter Scoop reported that in 2007, at a ribbon-cutting ceremony for a new six-story research space completed in the aftermath of Tropical Storm Allison, “[m]any in the crowd were moved to tears as they recalled that day in June 2001. ‘All of the animals were drowned and there were $165 million in structural damages,’ President Willerson said. ‘It was a daunting task, but we didn’t give up.’”

        Did the anthrax lab in the basement have virulent Ames anthrax strain, to include Ames? If so, what was done with the isolates during the devastation caused in the basement by the flood? At the time it was lawful to have virulent anthrax in its liquid form in a BL-2 facility, contrary to the occasional misperception; a hood is used in handling such isolates. A University President explained as much in a letter in connection with the incident when some live Ames spores were sent by Northern Arizona to Los Alamos in Fall 2001.

        Members of the lab brought out the champagne at the lab in late 2001 when a special visa was granted to a research team member, who without it would have had to return to China. “We knew it was going to be risky,” said Dr. Koehler, a microbiologist at the school who for the past 20 years has studied the anthrax bacterium now being used as a terrorist weapon. “The question was whether current events would convince federal officials that [the researcher’s] skills are in the national interest or make them restrict workers from certain countries.”

        “It is a horrible feeling to think that it could be someone I know, that the perpetrator is a microbiologist among us,” said Dr. Koehler. In September 2001, Dr. Koehler explained her anthrax research, how terrorists might deploy anthrax as a biological weapon and how physicians would treat it.

        Aafia’s brother in 2001 was associated with addresses in Ann Arbor, Detroit, and Canton, Michigan — and even Harrison, NJ — in 2001. The ACLU attorney representing Aafia’s family advised me that it had been years since she was Houston — certainly before 2001 and maybe not since she was married. She added that if Aafia was there, it was to visit her brother, who has nothing to do with the med center.” The attorney reports: “there is no way they could have helped her get access to the necessary labs at the med center.”

        On Research Day in 2003, the award winners for Biomedical Excellence included a graduate student working in Dr. Koehler’s lab, Melissa Drysdale, who worked on gene regulation in a virulent strain of bacillus anthracis.

        Dr. Koehler received, for example, the Weybridge strain from Porton Down prior to the Fall of 2001. Did Dr. Koehler have virulent Ames from either Porton Down or somewhere else? (Her mentor was the eminent vaccine researcher Dr. Curtis Thorne who got samples directly from Ft. Detrick). Co-researcher Rick Lyons at UNM was fedexed virulent Ames from flask 1029 in March 2001 at the same time the Houston lab upgraded. This month, Dr. Lyons co-published with Dr. Koehler on virulent Ames in rabbits, along with former Houston grad student Melissa Drysdale, who is now at UNM with Dr. Lyons.

        Remember: Khalid Mohammed, who told authorities about Aafia, had anthrax production documents on his assistant’s laptop (the guy working with Aafia’s future husband in UAE in the summer of 2001). She allegedly was associated with both KSM and “Jafar the Pilot” who is at large. She later married an Al Qaeda operative al-Baluchi who, like al-Hawsawi, had been listed as a contact for the hijackers and took over plots upon the arrest of KSM. Authorities have said that a Pakistani scientist , who they refused to name was helping Al Qaeda with its anthrax production program. Were they referring to bacteriologist Abdul Qudus Khan in whose home the Pakistan authorities claim KSM was captured? Was it Rauf Ahmad who Zawahiri sent to infiltrate UK biodefense? Was it the chemistry professor who met with Uzair Paracha in February 2003? Or was it Aafia who was alleged to be a “facilitator” who handled logistics. “Logistics” is handling an operation that involves providing labor and materials as needed. One government psychiatrist affidavit reports that she claims to have been tasked by an “Abu Luaba” to research germ warfare. According to a UN dossier reviewed by a journalist at the Wall Street Journal, in June 2001 she traveled to Liberia to meet Al Qaeda’s military commander, Atef, who had been head of the anthrax planning. One important mystery to resolve analysis is to determine whether the chauffeur who claims the lady was Aafia is lying or mistaken. A FBI memo from 2003 titled “Allegations Relating to al Qaeda’s Trafficking in Conflict Diamonds,” and a related 2004 presentation to the intelligence community, debunking the allegations relating to trafficking in conflict diamonds. The memo was declassified in 2006 and provided under FOIA in February 2008 to intelwire.com. If those documents represent the FBI’s current thinking, there is reason to think Aafia never went to Liberia in June 2001 — or at least that the FBI does not think she did.

        The ACLU in a February 2004 publication called “Sanctioned Bias: Racial Profiling Since 9/11” described Aafia’s brother first encounter with the FBI. Muhammad A. Siddiqui is an architect in Houston and father of two young children. Someone with the same common name, as mentioned in the court record relating to Project Bojinka. United States of America v. Ramzi Ahmed Yousef et al, (August 26, 1996), page 5118. A letter was read into the record
        “To: Brother Mohammad Alsiddiqi. We are facing a lot of problems because of you. Fear Allah. Mr. Siddiqi, there is a day of judgment. You will be asked, if you are very busy with something more important, don’t give promises to other people. See you in the day of judgment. Still waiting, Khalid Shaikh, and Bojinka.”

        In addition to many people having this very common name, people often used aliases. The attorney, Dietrich Snell, at the time was under the impression it related to a solicitation for money. Attorney Snell was from the US Attorney’s Office. More recently, Snell acted as counsel for the 9/11 Commission. He served as Deputy Attorney General for Public Advocacy under Eliot Spitzer. What was the address of the recipient? Who was Muhammad Siddiqui with whom KSM corresponded?

        Attorney General Ashcroft and Director Mueller made an on-the-record renewed push to find Aafia Siddiqui in a press conference on May 26, 2004 shortly after ACLU Attorney Annette Lamoreaux responded to my emailed inquiries about Aafia. Three days after the Pakistan Ministry of Interior claimed she had been handed over to US authorities in late March 2003.

        There are the many questions surrounding the mystery of the disappearance of the lovely, intelligent and pious — and it turns out occasionally quite chatty — Aafia Siddiqui. Aafia once had an MIT alumni email account forwarded to umaisha@yahoo.com — which under one translation means lively mom. Aisha was the Prophet’s favorite wife. Maybe correspondence in that email account held the answers.

        In a Pakistan news account, Attorney Whitfield Sharp reported that she didn’t know of any police report filed by the mom. In the same account, she reports that Aafia received job offer at both Johns Hopkins and the State University of New York (SUNY). It likely was SUNY downstate in Brooklyn where her sister had gone to school and lived. (Her mother Ismat is associated with addresses in Brooklyn, as well as Massachusetts, in Houston, and in Ann Arbor where Mohammad’s wife had a medical practice. Mohammad is associated with some Ann Arbor and Detroit-area addresses. Ann Arbor, coincidentally, was where IANA was located, as well as the President of Global Relief.

        When he was captured, Al-Baluchi, Khalid Mohammed’s nephew and Aafia Siddiqui’s husband, “was in possession of a perfume spray bottle which contained a low concentration of cyanide when he was arrested.” He was the fellow who met with Majid Khan about using a textiles shipping container to smuggle an unidentified chemical into the country. Cyanide in perfume bottles had been suggested for use in nightclubs in Indonesia but Bin Laden reportedly nixed the plan as ineffectual.

        • DXer said

          The CIA funded research (under $100k grant to Dr. Koehler) involved growing anthrax in silica. GAO has come under pressure from the CIA in the drafting of its report. I hope everyone realizes that they have left a paper trail that will be discoverable upon subpoena.

        • DXer said

          The biodefense study was aimed to study the persistence of anthrax in soil. That is, if anthrax were deployed on a battlefield, how dangeous would it remain to troops. But it involved growing anthrax in soil which is precisely what was observed by the forensics as explained by the FBI’s experts at Sandia.

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