United States v. Alhaggagi

978 F.3d 693

UNITED STATES of America, Plaintiff-Appellee,

v.Amer Sinan ALHAGGAGI, Defendant-Appellant.

No. 19-10092

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2020 San Francisco, California

Filed October 22, 2020

M. SMITH, Circuit Judge:

Amer Sinan Alhaggagi appeals a judgment of conviction and sentence of the United States District Court for the Northern District of California imposing the Sentencing Guidelines' terrorism enhancement, U.S.S.G. § 3A1.4, to his conviction for attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B(a)(1). Alhaggagi opened six social media accounts for people he knew sympathized with ISIS, an offense the district court concluded was "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), and thus triggered application of the terrorism enhancement. We reverse and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

I. Alhaggagi's Background

Amer Alhaggagi was born in Lodi, California to Yemeni immigrants. After September 11, 2001, Alhaggagi's mother moved him and his five siblings to Yemen, while his father remained in the United States. Alhaggagi spent the remainder of his childhood going back and forth between Yemen, where he lived with his mother, and California, where he lived with his father. In both places, Alhaggagi had a strained relationship with his parents, who raised their children in an observant Muslim household.

In 2009, Alhaggagi and his mother and siblings returned to California to live with his father. Although he was raised in a Muslim home, Alhaggagi was not religious and adhered to few religious traditions. As an escape from his home life, Alhaggagi began spending a lot of time on the Internet, where his father had no insight into his activities. He developed a sarcastic and antagonistic persona online, provoking people by comments he made on YouTube videos. He displayed these characteristics even when he was not online—people could never tell whether he was serious.

II. The FBI Investigation

In 2016, at the age of 21, Alhaggagi began participating in chatrooms, and chatting on messaging apps like Telegram, which is known to be used by ISIS. He chatted both in Sunni group chats sympathetic to ISIS and Shia group chats that were anti-ISIS. He trolled users in both groups, attempting to start fights by claiming certain users were Shia if he was in a Sunni chatroom, or Sunni if he was in a Shia chatroom, to try to get other users to block them. He was expelled from chatrooms for inviting female users to chat, which was against the etiquette of these chatrooms, as participants in those chats followed the Islamic custom of gender segregation.

In one Sunni chatroom, in late July 2016, Alhaggagi caught the attention of a confidential human source (CHS) for the FBI when he expressed interest in purchasing weapons. In chats with the CHS, Alhaggagi made many claims about his ability to procure weapons, explaining that he had friends in Las Vegas who would buy firearms and ship them to him via FedEx or UPS. Alhaggagi also made disturbing claims suggesting he had plans to carry out attacks against "10,000 ppl" in different parts of the Bay Area by detonating bombs in gay nightclubs in San Francisco, setting fire to residential areas of the Berkeley Hills, and lacing cocaine with the poison strychnine and distributing it on Halloween. He claimed to have ordered strychnine online using a fake credit card, of which he sent a screenshot to the CHS, bragging that he engaged in identity theft and had his own device-making equipment to make fake credit cards. He said he would be able to receive deliveries of strychnine undetected, by having packages shipped to an address that did not belong to him and waiting at that address to intercept the deliveries.

In Alhaggagi's view, all of this talk was "pure bullshit and full of absurdities and contradictions"—it was his "chat persona." One minute his persona was selling weapons, the next he claimed to need them, all in the same chatroom. His persona allegedly had associates in Mexican cartels who could get him grenades, bazookas, and RPGs, offered to join a user in Brazil to attack the Olympics, and was considering conducting attacks in Dubai.

Not surprisingly, the FBI was alarmed by Alhaggagi's statements and launched a months-long investigation, including 24-hour surveillance of Alhaggagi. The FBI had the CHS arrange for Alhaggagi to meet an undercover agent (UCE) in person, whom the CHS described as hating "kuffar," non-believers of Islam, and being interested in carrying out a suicide mission. The CHS encouraged and expressed interest in joining Alhaggagi's plans.

At the UCE's request, Alhaggagi met with the UCE on several occasions in late July and early August 2016. Alhaggagi shared the same plans he had discussed with the CHS on Telegram. The two discussed bomb-making, a topic in which the UCE claimed to have experience. On a second occasion, Alhaggagi met with the UCE to visit a storage space where the UCE had allegedly arranged to store supplies they needed to carry out the attacks. Alhaggagi offered to help purchase bomb-making materials, and on the drive there and back, he and the UCE continued to speak of their many plans, discussing car bombs, targeting AT&T Park, and Alhaggagi's plan to join a local police department so he could more easily obtain weapons. On a third occasion, the UCE met again with Alhaggagi at the storage locker, where the FBI had left several barrels of mock explosives. In the moment, Alhaggagi expressed excitement upon seeing the explosives, and on the drive back, he pointed out places he believed would be good targets for bombs.

After that meeting, however, Alhaggagi began distancing himself from the CHS on Telegram and the UCE. He told the district court that upon seeing the explosives, "it only hit me at that moment that I've been talking to these people for far too long and had no idea what I've gotten myself into and now I'm kinda freaked out ... I never took it seriously and I never realized how serious he was until he was ready to make a bomb (so I believed at the time) which I wanted no part of!"

From late August to September 2016, Alhaggagi skipped meetings intended to practice the attacks with the UCE, and ignored many attempts by the UCE to contact him. On September 23, 2016, the UCE approached Alhaggagi on the street and asked if they could share a meal. Alhaggagi agreed, but said he needed to get something from his house first. He never returned to meet the UCE, and they never communicated with each other again.

III. Alhaggagi's Arrest, Indictment, and Guilty Plea

On November 29, 2016, Alhaggagi was arrested on identity theft charges, and the FBI searched his home. Searches of Alhaggagi's electronic devices indicated that about a month after cutting ties with the UCE, Alhaggagi began chatting online with people whom he believed to be ISIS members in a particular chatroom with posts from ISIS supporters and people expressing hate toward the United States and Syrian and Iraqi governments.

Around that time, Alhaggagi agreed on two occasions to open social media and email accounts for purported ISIS members. Specifically, on October 31, 2016, Alhaggagi opened a Facebook, Twitter, and Gmail account and passed the account information on to the person with whom he was chatting. That person asked him, "Brother, do you support the Caliphate State?" and Alhaggagi responded, "of course." On November 15, 2016, a Telegram user called Abu Muharib Iraqi¹ introduced himself to Alhaggagi, said he was sent from a supporter of the caliphate, and asked Alhaggagi to open Twitter accounts. Alhaggagi agreed, believing he needed to curry favor with certain users to continue his trolling and retaliatory games. He opened Twitter and Gmail accounts and passed along the account information. Some of the accounts Alhaggagi opened were later used to report ISIS attacks in Mosul, Iraq, destroyed tanks, planes, and Humvees, and the deaths of Peshmerga and Iraqi soldiers. The posts were attributed to Amaq, which is known to be ISIS's propaganda organization.

The FBI search also revealed that Alhaggagi had at some point accessed a bomb-making manual he had previously downloaded and exchanged messages with users on Telegram about bomb-making. It revealed a powerpoint presentation about strychnine and internet searches around mid-October for large Halloween events. Other internet history revealed searches for information on flammable liquids, rocket igniters, electric matchers, and sulfuric acid. Alhaggagi had also posted in chatrooms materials about jihadist courses, instructions to build a napalm bomb and chloroform, and links to a training video for ISIS supporters about how to assist in cyberattacks.

On July 18, 2018, Alhaggagi pled guilty without a plea agreement to the four counts alleged in the indictment: Count One, attempting to provide material support to a designated foreign terrorist organization, 18 U.S.C. § 2339B(a)(1) ; Count 2, possessing device-making equipment, 18 U.S.C. § 1029(a)(4) ; Count 3, using an unauthorized access device, 18 U.S.C. § 1029(a)(2) ; and Count 4, aggravated identity theft.

IV. Sentencing

The probation office prepared a presentence report (PSR), which concluded that the terrorism enhancement, U.S.S.G. § 3A1.4, did not apply in Alhaggagi's case. The PSR calculated the total offense level at 26, with a 3-point reduction for acceptance of responsibility, and a Criminal History Category I. This put the guidelines range at 46–57 months, and the probation office recommended a 48-month sentence.

Alhaggagi presented the expert opinion of Dr. Marc Sagemen, a forensic psychiatrist and anti-terrorism expert, who conducted a multi-day evaluation of Alhaggagi. Dr. Sagemen opined that Alhaggagi was not radicalized, did not harbor...