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No. 13-1125: Mehanna V. United States

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No. 13-1125: Mehanna V. United States No. 13-1125 In the Supreme Court of the United States TAREK MEHANNA, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION DONALD B. VERRILLI, JR. Solicitor General Counsel of Record JOHN P. CARLIN Assistant Attorney General JOSEPH F. PALMER Attorney Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTION PRESENTED Whether petitioner’s conduct as a translator was sufficiently coordinated with a foreign terrorist organ- ization to make his convictions for providing material support to a foreign terrorist organization, in violation of 18 U.S.C. 2339A and 2339B, consistent with the First Amendment. (I) TABLE OF CONTENTS Page Opinion below .................................................................................. 1 Jurisdiction ...................................................................................... 1 Statement ......................................................................................... 1 Argument ....................................................................................... 10 Conclusion ...................................................................................... 24 TABLE OF AUTHORITIES Cases: Bachellar v. Maryland, 397 U.S. 564 (1970) ........................ 19 Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................. 12 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ...................................................................................... 12 Griffin v. United States, 502 U.S. 46 (1991) .............. 9, 18, 19 Hedgpeth v. Pulido, 555 U.S. 57 (2008) ................................ 20 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ............................................................................. passim Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27 (1993) ........................................ 17 Neder v. United States, 527 U.S. 1 (1999) ............................ 21 Skilling v. United States, 561 U.S. 358 (2010) ..................... 20 Stromberg v. California, 283 U.S. 359 (1931) ...................... 19 United States v. Coppola, 671 F.3d 220 (2d Cir. 2012), cert. denied, 133 S. Ct. 843 (2013) ...................................... 21 United States v. Maloney, 71 F.3d 645 (7th Cir. 1995), cert. denied, 519 U.S. 927 (1996) ............................. 15 United States v. Nestor, 574 F.3d 159 (3d Cir. 2009), cert. denied, 559 U.S. 951 (2010) ......................................... 15 United States v. Skilling, 638 F.3d 480 (5th Cir. 2011), cert. denied, 132 S. Ct. 1905 (2012) ......................... 21 (III) IV Cases—Continued: Page United States v. Turner, 720 F.3d 411 (2d Cir. 2013), petition for cert. pending, No. 13-1129 (filed Mar. 14, 2014) ................................................................................. 20 United States v. White, 670 F.3d 498 (4th Cir. 2012) ......... 19 United States v. Williams, 553 U.S. 285 (2008) .................. 17 Wood v. Allen, 558 U.S. 290 (2010) ........................................ 17 Yates v. United States, 354 U.S. 298 (1957) ......................... 19 Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) ................. 11, 12 Constitution and statutes: U.S. Const.: Amend. I .................................................................... passim Amend. V (Due Process Clause) ..................................... 16 18 U.S.C. 2(b) ........................................................................... 14 18 U.S.C. 371 .............................................................................. 2 18 U.S.C. 956 ........................................................ 2, 6, 22, 23, 24 18 U.S.C. 1001(a)(2) ................................................................... 2 18 U.S.C. 2339A .............................................................. passim 18 U.S.C. 2339A(a)................................................................... 14 18 U.S.C. 2339B .............................................................. passim 18 U.S.C. 2339B(h) .................................................................. 13 Miscellaneous: 3 Oxford English Dictionary (2d ed. 1989) ......................... 15 Webster’s Third New International Dictionary (2002) ...................................................................................... 15 In the Supreme Court of the United States No. 13-1125 TAREK MEHANNA, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 3a- 69a) is reported at 735 F.3d 32. JURISDICTION The judgment of the court of appeals was entered on November 13, 2013. A petition for rehearing was denied on December 17, 2013 (Pet. App. 1a-2a). The petition for a writ of certiorari was filed on March 17, 2014. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the District of Massachusetts, petitioner was convicted on one count of conspiring to provide mate- rial support to a designated foreign terrorist organiza- tion, in violation of 18 U.S.C. 2339B; one count of con- (1) 2 spiring to provide material support for a conspiracy to kill persons in a foreign country, in violation of 18 U.S.C. 2339A; one count of providing (or attempting to provide) material support for a conspiracy to kill per- sons in a foreign country, in violation of 18 U.S.C. 2339A; one count of conspiring to kill persons in a foreign country, in violation of 18 U.S.C. 956; one count of conspiring to make material false statements, in violation of 18 U.S.C. 371; and two counts of making material false statements, in violation of 18 U.S.C. 1001(a)(2). Pet. App. 5a; Judgment 1-2. Petitioner was sentenced to 210 months of imprisonment on the Sec- tion 956 count, to concurrent terms of 180 months of imprisonment on the three material-support counts, and to concurrent terms of 60 months of imprisonment on the three false-statement counts, all to be followed by seven years of supervised release. Judgment 1-4. The court of appeals affirmed. Pet. App. 3a-69a. 1. Petitioner, a United States citizen who grew up in the suburbs of Boston, embraced radical Islam as a teenager and young adult. Gov’t C.A. Br. 7. Petitioner was inspired by Osama bin Laden, the founder of the al-Qaeda terrorist organization, and petitioner rejoiced when al-Qaeda terrorists killed thousands of Ameri- cans on September 11, 2001. Pet. App. 17a; Gov’t C.A. Br. 8-11. Petitioner believed that it was his duty as a Muslim to participate in violent jihad. Pet. App. 6a n.3, 12a. After the United States went to war in Iraq, petitioner declared that “America was at war with Islam” and that American soldiers were “valid targets.” Id. at 12a. Petitioner and a small group of like-minded asso- ciates enjoyed watching propaganda videos of United States citizens being killed in Iraq, and they frequent- 3 ly discussed how best to fulfill their religious obliga- tion to engage in violent struggle against the United States. Id. at 17a; Gov’t C.A. Br. 10. Petitioner told his friends that he wanted to go to Iraq and fight against United States military forces. Pet. App. 13a. In 2003, petitioner and two friends, Ahmad Abou- samra and Kareem Abuzahra, formed a plan to travel overseas, receive military training at a terrorist train- ing camp in Yemen, join with al-Qaeda, and fight against Americans in Iraq. Pet. App. 12a-13a; Gov’t C.A. Br. 12-14. Abousamra met with Jason Pippin, a former resident of Yemen and veteran of a Pakistan terrorist-training camp, who provided contact infor- mation for two men in Yemen with al-Qaeda connec- tions. Pet. App. 14a; Gov’t C.A. Br. 13-14. Pippin explained how best to enter Yemen and recommended that Abousamra conceal the actual purpose of his trav- el by saying he intended to visit a moderate Islamic school called Dar al-Mustafa. Gov’t C.A. Br. 14-15. Petitioner, Abousamra, and Abuzahra prepared to go to Yemen and Iraq. The three men obtained visas and airline tickets. Pet. App. 14a; Gov’t C.A. Br. 14. They agreed on the moderate-school cover story Pip- pin recommended. Pet. App. 15a; Gov’t C.A. Br. 15. Petitioner suspended his college studies in the middle of the academic year and kept his plans hidden from his parents. Pet. App. 13a; Gov’t C.A. Br. 15, 17. Be- fore leaving, petitioner gave his brother a bag of per- sonal belongings, including bomb-making instructions, and asked his brother to dispose of them. Pet. App. 13a-14a. In February 2004, petitioner, Abousamra, and Abu- zahra flew to Abu Dhabi. Gov’t C.A. Br. 15-16. Abu- zahra received emails from his family that prompted 4 him to return home. Id. at 16. Petitioner and Abou- samra continued on to Yemen, where they spent a week trying to find a terrorist training camp. Id. at 17. They found one of Pippin’s contacts, but the man told them that the training camps in Yemen had closed after the September 11 attacks and it was nearly im- possible to get training there. Pet. App. 14a-15a; Gov’t C.A. Br. 17. Petitioner and Abousamra left Yemen together. Gov’t C.A. Br. 17. Petitioner was disap- pointed that he was unable to obtain training in Yem- en, and he returned home. Ibid.; Pet. App. 14a-15a.1 After returning from Yemen, petitioner and his as- sociates tried to conceal
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