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Date: 08-24-2021
Case Style:
United States of America v. ALI KOURANI, AKA ALI MOHAMED KOURANI, AKA JACOB LEWIS, AKA DANIEL
Case Number: 19-4292-cr
Judge: JOSÉ A. CABRANES,
Court: UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Plaintiff's Attorney: EMIL J. BOVE III (Amanda L. Houle and Karl
Metzner, on the brief), Assistant United
States Attorneys, for Audrey Strauss, United
States Attorney, Southern District of New
York, New York, NY
Defendant's Attorney:
Description:
New York, NY - Anti Terrorism lawyer represented defendant with with eight counts of terrorism-related offenses.
In 2000 Defendant-Appellant Ali Kourani joined Hizballah,2 a
Lebanon-based terrorist organization, and attended a 45-day militarystyle boot camp in the Bekaa Valley in Lebanon. His attendance was
made possible by the sponsorship of a relative, who was a prominent
Hizballah member. At the camp, Kourani was trained in military
tactics and the use of weapons, including AK-47s and rocket-propelled
grenade launchers.
In 2003, Kourani entered the United States on an immigrant visa,
disclaiming any connection to a terrorist organization in his visa
application despite his ties to Hizballah. Kourani obtained legal
permanent resident status.
In 2008, Kourani traveled to Lebanon and became a member of
the Islamic Jihad Organization (“IJO”), a component of Hizballah
focused on operations outside Lebanon—including the commission of
terrorist attacks and related intelligence-gathering activities.
The IJO assigned Kourani to a handler, an individual known as
“Fadi.” In their first meeting, Fadi taught Kourani the “Golden
1 The following statement of facts is drawn from the record on appeal, which
includes the transcript of Kourani’s trial (App’x Vol III-VII).
2 “Hizballah” is also spelled “Hezbollah” in the record. We use the spelling
Hizballah for consistency with the indictment and the list of designated foreign
terrorist organizations maintained by the United States Department of State (“State
Department”). See Designation of Foreign Terrorist Organizations, 62 Fed. Reg.
52,650 (Oct. 8, 1997).
5
Rule”—the less he knew about the IJO, the better. In other meetings,
Kourani also received training in other useful skill areas, including
how to resist interrogation.
Back in the United States, Kourani continued to cultivate a cover
identity for his activities as an IJO “sleeper” operative, obtaining a
bachelor’s degree in biomedical engineering from the City College of
New York in 2009 and a master’s degree in business administration
from the Keller Graduate School of Management in New York in 2013.
Kourani had been instructed by Fadi to obtain United States
citizenship and a United States passport as soon as possible. In August
2008, Kourani applied for naturalization, again disclaiming any ties to
Hizballah. His application was approved and Kourani was sworn in
as a United States citizen on April 15, 2009. He applied for a United
States passport that same day.
Shortly after obtaining his passport, on May 3, 2009, Kourani
traveled to Guangzhou, China, which is a manufacturing location of
commercial ice packs known to be used by the IJO to build ammonium
nitrate explosives.3 Kourani’s travels did not end there. In 2011,
Kourani returned to Lebanon for military training. As in his 2008 trip,
in this latest sojourn in Lebanon, Kourani received training in the use
of weapons and tactics. In other sessions, Kourani was trained in
resisting interrogation.
3 App’x at 816.
6
Following his return to the United States, Kourani continued to
receive instructions from Fadi regarding travel to conduct IJO
operations. In 2012, Kourani married a Canadian citizen named Lila
Abadi, whose family included Hizballah militia members based in
Lebanon. After the marriage, Fadi asked Kourani about carrying
correspondence to IJO operatives based in Canada because his travel
to and from Canada would not appear suspicious in light of his
marriage to a Canadian woman. Then, in 2013, at Fadi’s instruction,
Kourani applied for and obtained a United States passport card, which
could be used for entry into the United States at the land border
crossings. That way, if his United States passport were seized, he could
use his Lebanese passport to fly to Mexico or Canada and use the
United States passport card to cross into the United States.
Throughout this period, from 2008 to 2015, Kourani also
conducted intelligence-gathering missions for the IJO in the United
States and Canada at the direction of Fadi. Kourani conducted
surveillance of: JFK International Airport and Toronto Pearson
Airport, an armory facility in Manhattan, a National Guard outpost in
Manhattan, Secret Service offices in Brooklyn, and 26 Federal Plaza—
the FBI’s New York headquarters located across the street from the
federal courthouse in Foley Square. Fadi asked Kourani to identify
commercial locations where weapons could be stockpiled and to
identify individuals who could procure weapons. Kourani was
instructed to obtain tactical gear, including night-vision goggles,
drones, and thermal imaging devices. Fadi also told Kourani to collect
information about Israeli businessmen living in New York with ties to
7
the Israeli Defense Forces—so that the IJO could target them for
recruitment or assassination.
Kourani’s activities attracted the notice of the FBI, which began
to monitor his electronic and phone communications pursuant to a
court order in 2014. On April 1, 2016, FBI Special Agent (“SA”) Gary
Battista (accompanied by another special agent and a member of an
unnamed intelligence agency) approached Kourani at a Starbucks.
They all proceeded to a McDonald’s next door where SA Battista
offered Kourani an “opportunity . . . to enter into a relationship with
the U.S. government,” and that, if he took the opportunity, he would
be able to “provide college education for his kids, healthcare for his
family, [and] pursue any career that he wanted . . . .”4 Because the
McDonald’s was crowded, with the risk of being overheard, Kourani
and the agents agreed to meet again later that day. At that later
meeting, Kourani denied being a member of Hizballah. Over a series
of subsequent meetings, Kourani rejected overtures from the agents—
declining offers of financial compensation as well as an offer to look at
an example of a proffer agreement.
On July 15, 2016, Kourani returned to Lebanon with his wife and
their children. There, Kourani visited the United States Embassy in
Beirut to seek assistance with a familial dispute, and his United States
passport was taken by the State Department. SA Battista learned that
Kourani had gone to the United States Embassy in Beirut, and traveled
to meet with him, along with another SA, Joseph Costello, and a
4 App’x at 1149.
8
member of an unnamed intelligence agency. At the meeting, which
took place on August 9, 2016, SA Battista and SA Costello again sought
Kourani’s cooperation, which he declined to provide, again denying
his membership in Hizballah. Kourani was given his United States
passport at the end of the meeting and he returned to the United States.
Kourani’s interactions with the FBI ceased until March 2017,
when Kourani’s attorney, Mark Denbeaux, contacted the FBI through
a public access line. SA Keri Shannon and SA Costello spoke with
Denbeaux by phone that same month. Kourani and Denbeaux then
met with the agents five times at Denbeaux’s office at the Seton Hall
University School of Law, where Denbeaux was a professor. 5 During
those meetings, Kourani admitted to many of his activities on behalf
of the IJO. During the fifth and final meeting with the agents, Kourani
admitted that he had previously lied to the agents about the timing of
his recruitment to the IJO because he was worried it would affect his
citizenship status. SA Shannon and SA Costello then terminated the
interview because, in their view, Kourani was not being forthcoming
and refused to answer certain questions regarding his involvement
with Hizballah.
A sealed criminal complaint against Kourani was filed on May
31, 2017, and he was arrested pursuant to a warrant on June 1, 2017. A
grand jury returned an indictment on June 28, 2017, charging Kourani
5 Kourani, Denbeaux, and the agents met on March 23, April 3, April 5, April
14, and April 26, 2017.
9
with eight counts of terrorism-related offenses based on his conduct
between 2002 and September 2015.
After a jury trial, Kourani was convicted of providing and
conspiring to provide material support to Hizballah, in violation of 18
U.S.C. § 2339B (Counts One and Two); receiving and conspiring to
receive military-type training from Hizballah, in violation of 18 U.S.C.
§ 2339D (Counts Three and Four);6 contributing and conspiring to
contribute services to Hizballah, in violation of 50 U.S.C. § 1705(a)
(Counts Six and Seven); and unlawful procurement of citizenship or
naturalization to facilitate an act of terrorism, in violation of 18 U.S.C.
§ 1425(a) (Count Eight).7 Kourani was sentenced principally to 480
months of imprisonment. Kourani now appeals from a judgment of
conviction entered on December 18, 2019.
II. DISCUSSION
On appeal, Kourani challenges: (1) the District Court’s denial of
his motion to suppress his confessions during the 2017 interviews with
FBI agents; (2) the District Court’s failure to remedy the purported
ineffective assistance provided by his counsel; (3) the District Court’s
failure to provide his requested jury instructions; (4) the sufficiency of
the evidence underpinning his conviction; and (5) the reasonableness
6 Kourani’s 2011 trip to Lebanon for military training provided part of the
basis for Counts Three and Four.
7 Count Five, conspiracy to use and carry machine guns and destructive
devices during and in relation to Counts One through Four, in violation of 18 U.S.C.
§ 924(o), was withdrawn by the Government and dismissed by the District Court
after trial.
10
of his sentence of 480 months of imprisonment. We consider each
challenge in turn.
A. Denial of Motion to Suppress Confessions
Kourani claims that the District Court erred in denying his
motion to suppress the confessions made during the 2017 interviews
with the FBI. We do not agree.
“On appeal from a challenged suppression order, we review a
district court’s findings of fact for clear error, and its resolution of
questions of law and mixed questions of law and fact de novo.”8
Incriminating statements made in non-custodial settings are
inadmissible if the statements were not made voluntarily—that is, if
the defendant’s “will was overborne.”9 To prevail on a claim of
involuntariness premised on “trickery and deception, [a defendant]
must produce clear and convincing evidence that the [government]
agents affirmatively misled [him] as to the true nature of [their]
investigation.”10 We evaluate voluntariness based on the “totality of
the circumstances,” including “(1) the characteristics of the accused,
8 United States v. Haak, 884 F.3d 400, 408 (2d Cir. 2018).
9 United States v. Corbett, 750 F.3d 245, 253 (2d Cir. 2014) (internal quotation
marks omitted); see also Dickerson v. United States, 530 U.S. 428, 433-34 (2000) (tracing
the evolution of the “due process voluntariness test” to its modern formulation,
which examines “whether a defendant’s will was overborne by the circumstances
surrounding the giving of a confession.” (internal quotation marks omitted)).
10 United States v. Mitchell, 966 F.2d 92, 100 (2d Cir. 1992) (internal quotation
marks omitted).
11
(2) the conditions of interrogation, and (3) the conduct of law
enforcement officials.”11
In his counseled brief, Kourani argues that his admissions to the
FBI were involuntary because (1) he only spoke to the FBI agents on a
condition of confidentiality; and (2) the agents gave Kourani and his
counsel, Denbeaux, the impression that they were adopting the
position that Kourani “face[d] no prosecution” by failing to object to a
memorandum that Denbeaux presented to them prior to the April 3,
2017 interview.12
All of these arguments are unavailing when evaluated under the
totality of the circumstances of the 2017 interviews.
First, Kourani’s “characteristics” favor a finding that his
statements were voluntarily made. At the time of his 2017 meetings
with the FBI, he was an adult who had graduated from college and
who held a master’s degree in business administration. Further,
11 Haak, 884 F.3d at 409 (internal quotation marks omitted).
12 App’x at 650. In a pro se supplemental brief, which we granted Kourani
leave to file, Kourani further argues that the Government’s promise of
confidentiality included a promise of immunity, which induced his selfincriminating statements, rendering them involuntary and inadmissible. Kourani
also claims that his statements were not voluntary in light of the “duress” he was
under at the time of his interviews with the FBI because he was unemployed, living
with a relative, estranged from his children, and worried about his safety. Kourani
finally asserts that the Government improperly pressured him prior to the March
and April 2017 meetings by contacting his relatives and employer, denying benefits
to his relatives, temporarily confiscating his United States passport in Lebanon, and
subjecting him and his family to secondary screenings at airports.
12
Kourani had already previously talked to—and refused to cooperate
with—the FBI.13 Second, the conditions of the 2017 interviews were not
coercive. The interviews took place at a conference room at Seton Hall
University, where Denbeaux worked and to which Kourani traveled
on his own. Kourani was represented by Denbeaux at those meetings,
except during a portion of one meeting where Kourani requested to
speak to SA Shannon alone. During the interviews, Kourani also took
frequent breaks to consult privately with Denbeaux, and Kourani
exercised his right to decline to answer certain questions from the
agents.14 Third, the conduct of the FBI agents was not coercive. The
agents were dressed in business-casual attire and did not display
firearms.
Nor did the agents’ purported promise of immunity render
Kourani’s statements involuntary. At the outset, our precedent
dictates “that the presence of a direct or implied promise of help or
leniency has not barred the admission of a confession where the
totality of the circumstances indicates that it was the product of a free
and independent decision.”15 Moreover, we cannot hold that the
13 Cf. United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995) (considering
defendant’s familiarity with police questioning and “maturity, education [and]
intelligence”).
14 See Green v. Scully, 850 F.2d 894, 902 (2d Cir. 1988) (explaining that relevant
facts include “the place where an interrogation is held,” “the length of detention,”
and the “presence or absence of counsel,” which “is a significant condition because
counsel can assure that the individual’s right to choose between silence and speech
remains unfettered throughout the interrogation process” (internal quotation
marks omitted)).
15 Id. at 901.
13
District Court clearly erred when it concluded that the agents did not
implicitly adopt Denbeaux’s memorandum of the meetings, in which
Denbeaux had noted that Kourani “has committed no crime and faces
no prosecution.”16 It is also worth noting that, even if the agents’
silence meant they had somehow adopted the memorandum,
Denbeaux’s notes themselves indicated that Kourani was “not seeking
any kind of immunity of protection.”17 The District Court also did not
err, much less clearly err, in finding that, in any event, Denbeaux and
Kourani knew or should have known that the FBI agents lacked the
authority to promise immunity.18
In sum, we can find no error in the District Court’s denial of
Kourani’s motion to suppress.
16 App’x at 106.
17 Id. (emphasis added).
18 See, e.g., United States v. Flemmi, 225 F.3d 78, 85-86 (1st Cir. 2000)
(explaining that FBI agents lack the authority to promise an informant immunity);
Doe v. Civiletti, 635 F.2d 88, 96 (2d Cir. 1980) (“[I]t is axiomatic that the United States
is not bound by the unauthorized acts of its agents.”).
14
B. Ineffective Assistance of Counsel
Kourani next argues that the District Court erred in denying his
“motion for an order finding that prior defense counsel provided
ineffective assistance of counsel.”19 We do not agree.
“Whether a defendant’s representation violates the Sixth
Amendment right to effective assistance of counsel is a mixed question
of law and fact that is reviewed de novo.”20
Kourani’s claim that he received ineffective assistance of counsel
is based on Denbeaux’s conduct during the 2017 interviews with the
FBI agents. But it has long been understood that “[a] defendant cannot
prevail on an ineffective assistance of counsel claim when the
constitutional right to counsel has not attached.”21 It is well established
that a defendant’s right to counsel attaches when “adversary judicial
proceedings” have been initiated.22 Here, when Kourani agreed to
19 App’x at 668 (capitalization omitted).
20 United States v. Levy, 377 F.3d 259, 264 (2d Cir. 2004) (internal quotation
marks omitted) (evaluating an ineffective assistance of counsel claim on direct
appeal).
21 Claudio v. Scully, 982 F.2d 798, 802 (2d Cir. 1992); see also Wainwright v.
Torna, 455 U.S. 586, 587-88 (1982) (“Since respondent had no constitutional right to
counsel, he could not be deprived of the effective assistance of counsel . . . .”).
22 Compare Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 213 (2008) (“[A]
criminal defendant's initial appearance before a judicial officer, where he learns the
charge against him and his liberty is subject to restriction, marks the start of
adversary judicial proceedings that trigger attachment of the Sixth Amendment
right to counsel.”), with United States v. Medunjanin, 752 F.3d 576, 585 (2d Cir. 2014)
(describing the Fifth Amendment right to counsel, which is meant “to insure that
15
meet with the FBI in 2017, his right to counsel had not attached because
“adversary judicial criminal proceedings” against him had not
begun.23 Indeed, the last interview took place on April 26, 2017. The
criminal complaint against Kourani was not filed until May 31, 2017,
he was arrested on June 1, 2017, and his initial appearance,
accompanied by counsel, took place on June 2, 2017.24
Accordingly, the District Court did not err in denying Kourani’s
motion claiming that he had ineffective assistance of counsel during
the 2017 interviews.
the right against compulsory self-incrimination [i]s protected” (internal quotation
marks omitted)).
23 United States v. Stein, 541 F.3d 130, 152 (2d Cir. 2008) (“The Supreme Court
has pegged commencement of a prosecution to the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.” (internal quotation marks and
alterations omitted)).
24 Even assuming arguendo Kourani’s right to counsel had attached during
the 2017 meetings, he has not shown that Denbeaux’s assistance was not
“reasonable considering all the circumstances.” Strickland v. Washington, 466 U.S.
668, 688 (1984). Specifically, Kourani has not demonstrated either that Denbeaux’s
alleged reliance on the FBI agents’ asserted promise of confidentiality or
Denbeaux’s alleged failure to secure a “proffer” agreement in advance of the 2017
meetings with the FBI was objectively unreasonable. See id. (“[T]he defendant must
show that counsel’s representation fell below an objective standard of
reasonableness.”). As the District Court explained, the record supports the idea that
the 2017 meetings were part of a strategic endeavor to exchange selective amounts
of information for assistance with Kourani’s family’s immigration issues. Strategic
maneuvers—even ones that ultimately fail—do not typically constitute
constitutionally ineffective assistance. See McKee v. United States, 167 F.3d 103, 106
(2d Cir. 1999).
16
C. Jury Instructions
Next, Kourani asserts that the District Court erred when it
declined to adopt his proposed jury instructions. We do not agree.
“We . . . review a claim of error in jury instructions de
novo, reversing only where appellant can show that, viewing the
charge as a whole, there was a prejudicial error.”25 In so doing, we
“examin[e] the entire charge to see if the instructions as a whole
correctly comported with the law,”26 and reflected the defendant’s
defense.27
As an initial matter, insofar as Kourani’s challenge to the District
Court’s jury instructions on appeal is based on 18 U.S.C.
§ 3501(a), which provides guidance on how confessions are handled at
trial,28 we have held that Ҥ 3501 applies only to confessions made
25 United States v. Tropeano, 252 F.3d 653, 657-58 (2d Cir. 2001). “We consider
a jury instruction erroneous ‘if it misleads the jury as to the correct legal standard
or does not adequately inform the jury on the law.’” United States v. Silver, 864 F.3d
102, 118 (2d Cir. 2017) (quoting United States v. Finazzo, 850 F.3d 94, 105 (2d Cir.
2017)). Even where an instruction is erroneous, we will affirm if it is “clear beyond
a reasonable doubt that a rational jury would have found the defendant guilty
absent the error.” United States v. Sheehan, 838 F.3d 109, 121 (2d Cir. 2016) (internal
quotation marks omitted).
26 United States v. Ferguson, 676 F.3d 260, 275 (2d Cir. 2011) (internal
quotation marks omitted).
27 See United States v. Vasquez, 82 F.3d 574, 577 (2d Cir. 1996) (“A criminal
defendant is entitled to a jury charge that reflects his defense.”).
28 Under this provision, a “trial judge shall . . . determine any issue as to
voluntariness,” and, “[i]f the trial judge determines that the confession was
17
during interrogation following arrest or detention.”29 Because Kourani
had not been arrested or detained when he made the statements at
issue during the 2017 meetings, the District Court was not required to
instruct the jury on Kourani’s confessions in accordance with this
statutory provision.30 Even so, the District Court still instructed the
jury to “give [Kourani’s] statements such weight, if any, as you feel
they deserve in light of all the circumstances.”31 This instruction
comported with the law and accurately reflected Kourani’s defense.
Kourani argues that the District Court erred by failing to give an
instruction that the jury could not convict him if his admissions were
voluntarily made it shall be admitted in evidence and the trial judge shall permit
the jury to hear relevant evidence on the issue of voluntariness and shall instruct
the jury to give such weight to the confession as the jury feels it deserves under all
the circumstances.” 18 U.S.C. § 3501(a).
29 United States v. Stevens, 83 F.3d 60, 67 (2d Cir. 1996).
30 See United States v. Valdez, 16 F.3d 1324, 1333 (2d Cir. 1994) (holding that
§ 3501 applies only to confessions made during interrogation following arrest or
detention).
31 App’x at 1679; see also United States v. Elfgeeh, 515 F.3d 100, 125 (2d Cir.
2008) (explaining that under § 3501, “the trial court, after admitting in evidence a
defendant’s [post-arrest] self-inculpatory statements that it found were made
voluntarily, shall permit the jury to hear relevant evidence on the issue of
voluntariness and shall instruct the jury to give such weight to the confession as the
jury feels it deserves under all the circumstances.” (internal quotation marks
omitted)).
18
not corroborated.32 But we have never held that a district court is
required to issue any such instruction.33
Kourani further argues that the District Court erroneously failed
to instruct the jury that being a “supporter” of Hizballah is not illegal
32 Kourani asked the District Court to instruct the jury that “a person may
not be convicted of an offense solely upon evidence of a confession or admission
made by that person” and “[t]here must be some additional proof that the crime
charged were [sic] committed.” App’x at 695.
33 “It is a long-settled principle that ‘an accused may not be convicted on his
own uncorroborated confession,’” United States v. Bryce, 208 F.3d 346, 354 (2d Cir.
1999), as amended (Jan. 19, 2000) (quoting Smith v. United States, 348 U.S. 147, 152
(1954)), and that “there be substantial independent evidence which would tend to
establish the trustworthiness of the [defendant’s] statement,” Bryce, 208 F.3d at 354
(internal quotation marks omitted). We have, however, concluded that when there
is such independent evidence “any error in failing to instruct the jury on the
corroboration rule is not ‘so egregious and obvious’ to constitute plain error.”
United States v. Paracha, 313 F. App'x 347, 350 n.2 (2d Cir. 2008) (non-published
summary order) (internal quotation marks omitted). We did so noting that other
Circuits to consider the issue have held that a district court is not required to
instruct a jury on a so-called corroboration rule. See, e.g., United States v. Howard,
179 F.3d 539, 543 (7th Cir. 1999) (“[A] district court is not obligated to instruct the
jury to make a specific finding as to whether the government presented substantial
independent evidence to corroborate the defendant’s confession.”); United States v.
Dickerson, 163 F.3d 639, 642 (D.C. Cir. 1999) (same); United States v. Singleterry, 29
F.3d 733, 739 (1st Cir. 1994) (holding “where a full confession dominates the
government’s proof, it is fair to assume that a jury will interpret its duty to find
guilt beyond a reasonable doubt to mean that it cannot simply accept a confession
at face value”); but see United States v. Marshall, 863 F.2d 1285, 1285-86, 1287 (6th Cir.
1988) (holding that the jury should have been instructed that “it could not find the
defendant guilty solely on the basis of defendant’s uncorroborated admissions” but
also acknowledging that “[c]ourts have held that proof that the criminal act took
place—the so-called ‘corpus delicti’—will satisfy the corroboration requirement”).
We agree with the 7th, D.C., and 1st Circuits in this respect.
19
in the United States.34 While it is true that our law “does not prohibit
or punish mere membership in or association with terrorist
organizations,”35 Kourani has pointed to no authority, below or on
appeal, for his contention that the District Court was required to give
Kourani’s requested instruction with respect to his being a
“supporter,” as opposed to a mere member, of Hizballah.36
In sum, the District Court’s charge, when viewed as a whole,
was not erroneous, much less prejudicially erroneous.
D. Sufficiency of the Evidence
Kourani next argues that the evidence was legally insufficient to
sustain his conviction. We do not agree.
Although we review a defendant’s challenge to the sufficiency
of the evidence de novo, “we will uphold the judgment[] of conviction
if ‘any rational trier of fact could have found the essential elements of
34 Kourani Br. at 48. We note that such an instruction was not included in
the defense’s request to charge. See App’x at 687-97. Rather, defense counsel made
this request for the first time at the charge conference. See App’x at 1498 (“In page
either 13 or 14 just because I think a reasonable view of the evidence could be that
my client likes Hezbollah or believes in the mission of Hezbollah, and so, in a
colloquial sense, is a supporter of Hezbollah, but that that’s not illegal in the United
States, but providing material support, obviously, is illegal, just so he’s not
convicted because he looked at some YouTube videos.”).
35 United States v. Farhane, 634 F.3d 127, 137 (2d Cir. 2011).
36 In any event, the jury was amply charged as to Count One regarding the
meaning of “material support.” See App’x at 1624-28.
20
the crime beyond a reasonable doubt.’”37 In our evaluation of “a
sufficiency challenge, we must view the evidence in the light most
favorable to the government, crediting every inference that could have
been drawn in the government’s favor.”38
Kourani principally argues that the evidence adduced at trial is
insufficient to support his conviction because the Government’s casein-chief rested on his admissions, which he contends were
insufficiently corroborated. But a review of the trial record shows that
the Government presented evidence that corroborated the statements
Kourani made to the FBI agents, including data on Kourani’s laptop,
his internet search history, and his travel history. The corroborating
information need only “prove that the confession was reliable” and
“the confession, if proven reliable, may serve as the only evidence
reaching the corpus delicti” or “body of the crime.”39
We therefore cannot say that the evidence presented at trial was
insufficient to support Kourani’s conviction.
37 United States v. Martoma, 894 F.3d 64, 72 (2d Cir. 2017) (emphasis omitted)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
38 Id. (alterations and internal quotation marks omitted).
39 United States v. Irving, 452 F.3d 110, 118 (2d Cir. 2006) (internal quotation
marks omitted).
21
E. Reasonableness of Sentence
Finally, Kourani challenges his sentence as unreasonable. We do
not agree.
We review a criminal sentence for reasonableness, which
“amounts to review for abuse of discretion.”40 We find a sentence
procedurally unreasonable if the District Court “fail[ed] to calculate (or
improperly calculate[d]) the Sentencing Guidelines range, treat[ed]
the Sentencing Guidelines as mandatory, fail[ed] to consider the §
3553(a) factors, select[ed] a sentence based on clearly erroneous facts,
or fail[ed] adequately to explain the chosen sentence.”41 A sentence is
substantively unreasonable “where the trial court’s decision cannot be
located within the range of permissible decisions,”42 or when the
sentence “constitute[s] a manifest injustice or shock[s] the
conscience.”43
40 United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (quoting United
States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc)).
41 Robinson, 702 F.3d at 38.
42 Cavera, 550 F.3d at 189 (internal quotation marks omitted); see also United
States v. Young, 811 F.3d 592, 598–99 (2d Cir. 2016) (“In reviewing the substantive
reasonableness of a sentence, [the appellate court must] take into account the
totality of the circumstances, giving due deference to the sentencing judge’s
exercise of discretion, and bearing in mind the institutional advantages of district
courts.” (internal quotations marks omitted)); United States v. Hsu, 669 F.3d 112, 120
(2d Cir. 2012) (“We review substantive challenges to a sentence under a ‘deferential
abuse-of-discretion standard.’” (quoting Cavera, 550 F.3d at 189)).
43 United States v. Rigas, 583 F.3d 108, 124 (2d Cir. 2009) (internal quotation
marks omitted). Put another way, substantive unreasonableness “provide[s] a
22
a. Procedural Reasonableness
Kourani’s challenge to the procedural reasonableness of his
sentence does not rest on the District Court’s calculation of the
applicable range under the United States Sentencing Guidelines
(“U.S.S.G.”).44 Rather, Kourani principally contends that the District
backstop for those few cases that, although procedurally correct, would
nonetheless damage the administration of justice because the sentence imposed
was shockingly high, shockingly low, or otherwise unsupportable as a matter of
law.” Id. at 123.
44 Rightly so, for the District Court correctly calculated the applicable range
under the Guidelines. In considering Part M of the Guidelines, which provides
recommendations with respect to offenses involving national defense, the District
Court initially indicated—and Kourani’s counsel agreed—that the appropriate
Guideline was U.S.S.G. § 2M6.1. Under that Guideline, which refers to weapons of
mass destruction and is applicable if the offense of conviction was committed with
intent either to injure the United States or to aid a foreign terrorist organization,
Kourani's base offense level would have been 42. However, the District Court
concluded that Kourani’s offense conduct did not fit perfectly under U.S.S.G. §
2M6.1, and it elected to apply U.S.S.G. § 2M5.3—as defense counsel also found
preferable—which deals with the provision of material support or resources to a
foreign terrorist organization. Under U.S.S.G. § 2M5.3, Kourani's base offense level
was 26; and under U.S.S.G. § 2M5.3(b)(1), his offense level was increased by two
steps to 28 because his offense involved firearms or other material support with
intent or reason to believe it would be used to assist in a violent act. The District
Court also found applicable the terrorism enhancement in U.S.S.G. § 3A1.4(a),
which added a 12-level increase in the offense level; thus Kourani's total offense
level was 40. Under U.S.S.G. § 3A1.4(b), Kourani’s criminal history category was
VI. Accordingly, the District Court concluded that the advisory Guidelines range
for Kourani was a term of imprisonment of 360 months to life.
23
Court erred by failing to consider, under 18 U.S.C. § 3553(a)(6), the
need to avoid unwarranted sentencing disparities.45 We do not agree.
Indeed, the District Court directly addressed that § 3553(a)
factor during the sentencing hearing. Although Kourani had drawn
the District Court’s attention to cases in which the defendants had
received sentences of 15-20 years of imprisonment, the District Court
noted that the Government had pointed out “significant distinctions”
between the present case and the cases on which Kourani relied.46 And
the District Court expressly agreed with the Government's view that
Kourani's conduct presented a “unique” case, and it found that
Kourani’s proffered “comparisons [we]re not fair.”47 In sum, we see no
error in the District Court’s conclusion that the cases on which Kourani
relied involved defendants who did not commit the range of conduct
of which Kourani stood convicted.
Moreover, the record shows that the District Court properly
considered the other § 3553(a) factors in sentencing Kourani, including
the seriousness of the offense, the need for deterrence, the need to
promote respect for the law, the need to protect the public from further
45 Specifically, § 3553(a)(6) includes as a factor “the need to avoid any
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct[.]”
46 App’x at 2104.
47 App’x at 2108.
24
crimes, and the need “not [to] impos[e] a sentence that is greater than
necessary to accomplish the objectives of sentencing.”48
Nor did the District Court procedurally err by selecting a
sentence based on clearly erroneous factual findings.49 The District
Court’s inferences—regarding Kourani’s travel to China as part of an
IJO operation to procure explosive material and Kourani's operation
of “front” companies as part of his IJO cover identity—were not clearly
erroneous. Indeed, with respect to both findings, the District Court
properly adopted the United States Probation Office’s factual findings
as set forth in the Presentence Report.
48 See App’x at 2133-34. The District Court’s assessment that a 40-year term
of imprisonment met the statutory criteria was supported by, inter alia, its findings
that Kourani knew Hizballah was a terrorist organization; that Kourani provided
material support to Hizballah for over ten years; that during that period Kourani
fraudulently obtained United States citizenship by lying about his membership in
Hizballah; that items found in Kourani's home after his arrest suggested Kourani's
"continuing involvement with Hizballah, and [that he was] awaiting a time when
he would get a signal to do something in the interest of Hizballah,” App’x at 2106-
07; that Kourani had returned to Hizballah for additional military training after
gaining United States citizenship, “indicat[ing] that he intended to injure the
United States,” App’x at 2083; and that “if he were not adequately punished, he
[would] be dangerous,” App’x at 2133.
49 Where, as here, a procedural challenge rests not on the district court’s
calculation or application of the Guidelines, but rather, on a defendant’s assertion
that the sentence was based on a sentencing court’s erroneous factual
determination, the standard of review is clear error. See United States v. Garcia, 413
F.3d 201, 221-22 (2d Cir. 2005) (“To reject a finding of fact as clearly erroneous, [an
appellate court] must, upon review of the entire record, be left with the definite and
firm conviction that a mistake has been committed.”(internal quotation marks
omitted)).
25
b. Substantive Reasonableness
Kourani contends that his sentence is substantively
unreasonable, largely for the same reasons as he contends that it was
procedurally unreasonable.50 We disagree for the same reasons we
reject his procedural challenge to the reasonableness of his sentence.
Further, Kourani fails to demonstrate that his sentence—which he
concedes on appeal was within the applicable advisory Guidelines
range of 360 months to life imprisonment—cannot be located within
the range of permissible decisions.51 Nor does our review of the record
give any indication that, in light of the facts and circumstances of his
case, Kourani’s sentence was “shockingly high . . . or otherwise
unsupportable as a matter of law.”52 Indeed, Kourani’s sentence
50 See Kourani Br. at 75 (“As we show above, the sentence was substantively
unreasonable because it far exceeded sentences imposed on defendants convicted
of engaging in similar conduct and was based on inferences not supported by the
record.”). Kourani also stated on appeal, without further elaboration, that “the
sentence imposed by the lower court was not substantively reasonable” because the
District Judge “abused his discretion by imposing a sentence that: (1) was based on
an erroneous calculation of the sentencing guidelines; and (2) included special
conditions of supervised release which were not supported by the record.” Kourani
Br. at 74 (capitalization omitted).
51 United States v. Preacely, 628 F.3d 72, 79 (on appeal, a district court’s
sentence is set aside for substantive unreasonableness “only in exceptional cases
where the trial court’s decision cannot be located within the range of permissible
decisions” (internal quotation marks omitted)).
52 Id. at 83 (internal quotation marks omitted).
26
simply “reflect[s] Congress’ judgment as to the appropriate national
policy for such crimes.”53
We also note that, in arriving at the total term of imprisonment
of 40 years, the District Court was careful to order that most of the
terms of imprisonment it imposed would be served concurrently.
Indeed, the District Court noted that if it were to impose the statutory
maximum prison term for each of Kourani’s seven counts of conviction
and impose them consecutively—as advocated by the Government—
Kourani’s prison term would be 110 years.54 But the District Court
declined to impose consecutive terms of imprisonment on Kourani’s
counts of conviction, with the exception of Count 8.55 And although
53 United States v. Ebbers, 458 F.3d 110, 129 (2d Cir. 2006).
54 See App’x at 2090-91; id. at 2131-32 (maxima of 20 years each for Counts 6
and 7 (contributing and conspiring to contribute services to Hizballah); 15 years
each for Counts 1 and 2 (providing and conspiring to provide material support to
Hizballah); 10 years for Count 3 (receiving military training from Hizballah); five
years for Count 4 (conspiracy to receive such training); and 25 years for Count 8
(naturalization fraud to facilitate an act of terrorism)).
55 While the District Court elected to impose the maximum for each offense
other than Count 8, it ordered that most of those terms be served concurrently.
Thus, the District Court made the terms on Counts 6 and 7 concurrent with each
other, and it made the terms on Counts 1 and 2 concurrent with each other as well
as with the concurrent terms on Counts 6 and 7, for a total of 20 years on those four
counts. The District Court also ordered that the five-year term on Count 4 be served
concurrently with the 10-year term on Count 3, for a total of 10 years on those two
counts. However, because the District Court found that the offense conduct for
Counts 3 and 4 was different than the offense conduct for Counts 1, 2, 6, and 7, the
District Court ordered that the 10-year concurrent term for Counts 3 and 4 be served
consecutively to the 20-year concurrent terms on Counts 1, 2, 6, and 7, for a total of
30 years for those six counts.
27
the District Court ordered that the term of imprisonment for Count 8
be served consecutively to the terms of imprisonment imposed on the
other six counts, the District Court imposed a 10-year term of
imprisonment (rather than 25 years).
On our review of the record, we cannot conclude that the
District Court’s imposition of a 480-month prison term was either
procedurally or substantively unreasonable.
Outcome: To summarize, we hold as follows:
(1) the District Court did not err when it denied Kourani’s
motion to suppress his confessions during a series of 2017
interviews with the FBI;
(2) the District Court did not err when it denied Kourani’s
motion claiming that he had received ineffective assistance of
counsel during the 2017 interviews because his right to counsel
had not yet attached;
(3) the District Court did not err when it declined to provide
Kourani’s requested jury instructions;
(4) the evidence adduced at trial was sufficient to support
Kourani’s conviction; and
28
(5) Kourani’s sentence principally of 480 months of
imprisonment was neither procedurally nor substantively
unreasonable.
Over a period of roughly two years, the District Court presided
carefully and thoughtfully over these complex proceedings, affording
Kourani, in full measure, the due process of law guaranteed by the
Constitution.
We have reviewed all of the arguments raised by Kourani on
appeal and find them to be without merit. For the foregoing reasons,
we AFFIRM the District Court’s December 18, 2019 judgment of
conviction
Plaintiff's Experts:
Defendant's Experts:
Comments: