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United States v. Farhane - 634 F.3d 127 (2d Cir. 2011)


18 U.S.C.S. § 2339B(a)(1) imposes criminal liability on anyone who knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so. The statute expressly conditions liability on a person having knowledge that the relevant organization is a designated terrorist organization or has engaged or engages in terrorist activity or terrorism consistent with various specified provisions of law. 18 U.S.C.S. § 2339B(a)(1).


Defendant Rafiq Sabir, whose birth name is Rene Wright, is a United States citizen and licensed physician who, in May 2005, swore an oath of allegiance to al Qaeda and promised to be on call to treat wounded members of that terrorist organization in Saudi Arabia. Convicted after a jury trial in the United States District Court for the Southern District of New York of conspiring to provide and actually providing or attempting to provide material support to a terrorist organization in violation of 18 U.S.C.S. § 2339B, and sentenced to a 300-month term of incarceration, Sabir challenged his conviction on various grounds. Specifically, he contended that (1) § 2339B is unconstitutionally vague and overbroad, (2) the trial evidence was insufficient to support his conviction, (3) the prosecution's peremptory jury challenges exhibited racial bias, (4) evidentiary rulings deprived him of the right of confrontation and/or a fair trial, (5) the district court abused its discretion in addressing alleged juror misconduct, and (6) the prosecution's rebuttal summation deprived him of a fair trial. 


Was 18 U.S.C.S. § 2339B, which criminalizes conspiring to provide and actually providing or attempting to provide material support to a terrorist organization, unconstitutionally vague and overbroad in violation of the First and Fifth Amendments?




The Court of Appeals for the Second Circuit held that Section 2339B prohibited "material support," and was carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knew to be terrorist organizations. Proof of provision of material support to a known terrorist organization (whether actual, attempted, or conspiratorial) together with the dual knowledge elements of § 2339B was sufficient to satisfy the personal guilt requirement of due process. Section 2339B was not facially vague in violation of due process or overbroad in violation of the First Amendment. Sabir could be guilty of attempting to provide himself as personnel to al Qaeda, even if he had not yet been guilty of attempting to provide medical services: § 2339(B) criminalized providing personnel through self-recruitment (i.e., volunteering) no less than through recruiting another. It was not implausible for a prosecutor to think that a social worker might have more sympathy for a defendant without violating equal protection. While one juror had conducted an outside Internet search which revealed the co-conspirator's guilty plea, the defense summation conceded the co-conspirator's guilt.

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