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United States v. Van Haften

United States District Court, W.D. Wisconsin

February 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA VAN HAFTEN, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Defendant has pleaded guilty to providing material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). A conviction under this statute raises the possibility that the guideline enhancement for terrorism, USSG § 3A1.4, might apply. If the enhancement applies, defendant gets a 12-level increase in offense level and his criminal history is deemed to be Category VI. The enhancement would have a huge impact on the advisory range under the guidelines, so the parties would like a ruling on the issue before they submit their sentencing memoranda.

         The parties agree on the definitional starting point. The terrorism enhancement applies if defendant's crime was “involved, or was intended to promote, a federal crime of terrorism.” USSG § 3A1.4A(a). According to Application Note 1, “federal crime of terrorism” is defined in 18 U.S.C. § 2332b(g)(5). It gets a little bit complicated at this point, because that statutory definition does not merely list the statutory crimes that count as federal crimes of terrorism. Instead, § 2332b(g)(5) provides:

(5) the term “Federal crime of terrorism” means an offense that-
(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and
(B) is a violation of-[a long list of enumerated statutory sections]

         Defendant has pleaded to one of the enumerated offenses, so the question here is whether his crime was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” This is where the parties disagree: defendant contends that his crime was not calculated to do the things required under element (A) of the definition.

         A good starting point for this analysis is to consider the circumstances under which the terrorism enhancement would not apply. I start here because it might seem that any conviction for providing material support or resources to a foreign terrorist organization would be calculated to intimidate, coerce, or retaliate against a government. After all, coercion and intimidation are inherent in the concept of terrorism. See United States v. Christianson, 586 F.3d 532, 538 (7th Cir. 2009) (citing dictionary definitions of terrorism). The reason for the requirements of element (A) is that terrorist organizations can have complex purposes, which might include benign or even beneficial goals as well as terroristic ones. For example, Hamas (a designated foreign terrorist organization) purports to have a social services wing as well as a military one. So if one knowingly supported Hamas expecting that Hamas would use that support to provide humanitarian aid to needy Palestinians, it would be a federal crime, but the terrorism enhancement would not apply.[1]

         The government contends that defendant provided material support to a foreign terrorist organization specifically to support its terroristic objectives, thus plainly satisfying element (A). The parties agree that the government has the burden to prove the facts supporting the terrorism enhancement. Ordinarily, sentencing facts need only be proven to a preponderance. United States v. Noble, 246 F.3d 946, 953 (7th Cir. 2001). But defendant suggests that I follow the Ninth Circuit rule that when the facts relate to a particularly significant guideline enhancement, they should be proven by clear and convincing evidence. Dkt. 72, at 32 (citing United States v. Hymas, 780 F.3d 1285, 1289-90 (9th Cir. 2015), and United States v. Montgomery, 262 F.3d 233, 249-50 (4th Cir. 2001)). If I had to decide the issue I would decline to follow the Ninth Circuit rule because it would engender additional complicated disputes over when an enhancement creates a “disproportionate effect, ” and defendant cites no support for the rule in this circuit. But I do not have to decide the issue, because the government's proof here would meet either standard.

         Let's start with the core undisputed facts: defendant travelled to Turkey, intending to go to Syria where he would join ISIS, a designated foreign terrorist organization. The material support he intended to provide to ISIS was his own person and effort. He posted accounts of his travels and his intentions on social media. The central issue here, as both sides seem to agree, is: what was defendant's motive in seeking to join ISIS? Both sides focus on defendant's social media communications as an expression of his intentions, but the parties diverge on what those communications mean.

         According to the government, defendant's purpose was to take up arms against the United States, which he made clear in many Facebook messages and postings, and his “likes” of statements by ISIS leaders and sympathizers. The most aggressive and explicit of defendant's own statements were in an exchange with another Facebook user:

And American is a damn trap. It's horrible! I hate it, hate, hate it there. So you can have fun, do you da'wah [spreading the word of Islam], but I'm gonna kill me some American soldier boys.
Fuck their godless laws! I hate it! Duck [sic] being a ‘sex offender' for life there. They didn't respect me my whole life. A bunch of shaytan's [devils]. ...

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