three a one point four provides for a dramatic increase in a defendant's dive on range because as often is involved or was intended to promote a federal crime of terrorism federal crime terrorism has a very specific definition for purposes of the guidelines did say is often says were conspiracy to obstruct an immigration proceeding and conspiracy to make false statements to the f b i in a terrorism investigation at mass did you argue the first yes i did your honor is there an issue as to the scope of the remainder not and with the proceedings below consistent with the remember it's not an issue for us no it's not an issue it's not an issue the original panel that heard this case in their written it published opinion found that fits a is often says did not involve a federal crime of terrorism they remain handed to the district court then on the question of whether those offenses involved were intended to promote a federal crime of terrorism was specific instructions for the district court to clarify its factual findings because a court couldn't make the decision based on disputed facts that hadn't been resolved so make you play or i'm sorry the fifth circuit your honor they could resolve it so the district court was to clarify its factual findings and then determine whether the factual record supported the conclusion that this is all statements obstructed the investigation of a federal crime of terrorism and to specify the numerated federal crime of terrorism that it's a intended to promote originally the government's theory and soon just underscore the application of the law to the facts in this case to but you know it was the government's admitted voluminous findings of fact they did when he and you did too yes and then the district court just says i heard that today hearing and i adopt the government in globo so if in those thirty pages or whatever of findings of fact there is at the statement that they were investigating an f t c and if in those thirty days of finding fact there is a finding by the district court that fits the feds either your client your client's obstruction impeded and hence to the commentary will be presumed to have intended to promote it put those two facts together we just in a situation of clearer view as to each fact separately no i don't believe we are i think we're interpret in the language of the guidelines the guide commentary the guideline and it's commentary yes the fact that the government said they were investigating a federal crime of terrorism and the court find that and the court found that and the court found that the government has to for this enhanced meant the government has to prove the existence of a federal crime of terrorism by a preponderance of the of the right the original theory of the government on the federal crime of terrorism was providing material support to a foreign terrorist organization they backed off of that when it came out that i don't want to interrupt you but i guess you know and i understood it's you the first appeal you were persuasive and it's sort of difficult for me with this many findings of fact but it doesn't really matter if the government's theory shifted if the district court ultimately said they were investigating  i would have thought you would to me the difficulty due to him too you were just looking at the case of the difficulty is whether there's a link or not what the c entered is is do they get this huge unhandsome and third level thirty two criminal category for f torino i didn't know who he was which then the commentary says well that's a truck thing and it is deemed to be intending to promote something that the utterer may not even have known about and independently the court says they were investigating if that's the simple equation then i think you're in trouble unless you can show clear air but if the law says there's got to be a link between the two that the defendant's got to be tried intentionally promoting the f c t the that i don't think that also takes you into judging instance confused mental state so you may not want to i'm being quite serious i would stick with the argument you think is right and you so but anyway you've gone ahead clear on these two let's go ahead and you got eight minutes  to point that out ok so aren't my interpretation of this enhanced is that it requires that there be a proof by a preponderance of the evidence of a federal crime of terrorism not by beyond a reasonable doubt but by a preponderance of the evidence the basis for that is the guideline itself it provides for a dramatic increase the only comparable guidelines that have that kind of increase are career offender arm career criminal and repeat sexual offender and their lives are all based on prior convictions prove beyond a reasonable doubt so for this guideline what you what they have to prove is this federal crime of terrorism and this is supported i mean under the government's argument and the district courts finding it would be easier to apply this enhanced it for obstructive conduct statements that it would be to apply it when the person actually committed one of the a new miranda defenses not supported by the fourth circuit series the chandy a cases where the district court found that the defendant had committed providing the tiriel support to a commission said you may have circumstances where the government needs the first prong that the defendant committed and numerated offense but they don't meet the mens rea so instead of it being calculated to influence government it's calculated to intimidate the civilian population the sentencing commission said that would not qualify for an enhancement under three a one point four instead it's a recommended upward departure a whole separate in the structure that's a separate c m to requirement the calculation finding yes i didn't notice that you were really appealing that but maybe you are but it but here we're talking about in one could infer from the facts here that al shabaab mission itself is calculated to obstruct government it this isn't a little teeny thing this is a sort of serious i didn't challenge that specific line because i don't believe they can even primitive that he was intending to promote a federal crime of terrorism so i don't believe that that they can prove that the there was an actual  conspiracy to provide material support to terrorists that was being investigated there was a terrorism investigation they were legitimately investigating this man as a u s citizen when i read the stuff i certainly hope the government is investigated that doesn't mean that it comes within the requirements of three a one point four which has a very specific requirement regarding the federal crime of terrorism none of the published cases that have ever applied this and he has spent have applied it to this type of facts an area where the government just says we're in we're investigating in the district or did put the label on they're investigating and enumerated crime conspiracy did so and so my argument is the facts don't support that they were actually investigating a federal crime and innumerate that they were actually investigating a conspiracy to provide  material support to al shabaab and that the fact one of the facts they point to is his statement that he had provided an armed vehicle to al shabaab that took place in two thousand and six the government expanded his theory to cover conspiracy that this court held in the elmo same case that predestination conduct can't be used to to prove conspiracy to provide mysterious support post designation the conduct to show intent or motive as to a conspiracy but it can actually be the material support itself because holder and humor the problem just interrupt on this being your focus is most of these cases are defendant gets pulled into the grand jury and then they're told we're investigating these crimes so it's unequivocal on the record they were told and we all know what the title of the section is but most of the time in the agents are going to subjects and they say we'd like to talk to you they would never say and if this really stage in the investigation this is the title eighteen code number we're looking into so you won't get that explicit statement of the crime so you have to trust here agent wagner made the statements in the district court said that's true any three thirty nine i would argue that actually my argument doesn't tie the government's hands in investigation they still get to investigate to do it that way they get to bring charges against the individual they get to prosecute them and it doesn't tie the hands of the district court that were under advisory guidelines now the district court can apply the appropriate sentence we had multiple counts they can stop they can do an upward variance the guideline itself provides for an upward departure boards within the district judge sort of said well i'll get there anyway as an alternative that hasn't been argued by the government at all you know because then the district court took it back and sat nevermind i'm not doing it that way and i would argue that we can the government can't show harm because one of the facts that they were lying on was this phone number on the memory card that  had been in the this is between showed up at the port of entry the memory card was put into a property room and it stayed there for the next three years two years after he's in custody there's the ugandan bombing and the f informed that a mohamed homage to the mine had a phone number and that each mohamed in that phone number was on that memory card that was in the property subsequent to that they never questioned him about this subsequent to that that c indicted in this case and a month after that the f b i gets and examines that memory card and finds that name so the government's theory was if he had told us when we asked him about his terrorism ties if he had told us about this guy and his phone number we might have been able to stop a terrorism event questioned on that it requires that we see who he put the number on that he put on we know we put it on there before or it was put on the car before june two thousand and eight so at that time this mohamed had to been actively involved with al  fact about his shari'a activities after he was incarcerated i don't recall from your brief exactly how you address that but i think i put it in the statement of facts but i don't believe i actually addressed at  what my argument would be that under holder versus humanitarian law project people get to say terrible things they get to take say terrible things and it doesn't mean it's material support for speech to constitute material the district court one of the objections was that that they didn't have a chance to respond to it but once again thank you what we have to show is the defendant intended to promote that he lived not have completed attempted or conspired to commit the actual crime so you accept that you have to prove that he intended to promote how can a person intend to promote something that might not even exist he intended to promote by obstructing the investigation when they see if the know that they're investigating a federal crime terrorism and here's the hypothetical that i'm worried about because these these just jettison people into astronomical guideline ranges so if it would apply to a false statement agents come and say do you know so and so and the man says no  be that the government is investigating that person whose identity he denies for a crime of terrorism but that the thousand and one exculpatory no declarant doesn't even know he couldn't intend to promote or impede that i that investigation so what's the element you've got to prove to prove what you started out saying we've got to show he intended to promote the federal crime of terrorism in this case as this court found and as that occasion go to the states that obstructing an investigation of a crime of terrorism could be promoting knock on terrorism in this case we don't have a simple sculpturing you know what i'm asking you what the rule the difficulty or a few circuits of all struggled with this what is the c enter if the guideline only applies for people who intend to promote a federal crime of terrorism what if they don't even know what the government investigating but what they say does obstruct it with the guideline apply  far down from what we have because what we have here ok well then let me make it simpler for what we have here what is it since it's thirty pages of findings what is your best factual finding as to each of the elements of this guideline yes or what paragraph in other words so first of all that the man intended to promote what paragraph would you draw attention to where the district court found an intent to promote so it was the testimony was on a piece car and listed in p s five ten twenty one hundred thirty two that the defendant told two separate people i know the facts but where does the district court make a finding that he intended to promote this conspiracy to material support is it one of those progress i believe thirty two look at the one where he summarizes all of the facts that he had previously found ok i'm just because a time and then i'll let you get back with the second element i think is necessary is that at that time the government was investigating and enumerated crime plus one that was calculated to obstruct what's the best paragraph where the district court made the finding that at the time were he denied what's the best program for that second element second element paragraph fifteen wonderful twenty four thirty one and thirty two ok thank you good in this case we're not looking at whether or not the f b i could prove crime what we were looking at is did they have it lawful basis to be investigating conspiracy to provide material support to terrorists and conspiracy to provide material support to a foreign terrorist organization they have based on the court's findings that this defendant told to separate people how he previously purchased an arm technical for one hundred thousand dollars with all the weapons and armed it and the fighters were killed fighting the ethiopians and dolly were the only ones at that time frame fighting ethiopians at dolly so we have him already admitting to two separate people in recorded conversation that he has provided material support to terrorists he didn't believe that conspiracy in fact based on the information that he was borrowing tiering to both the first source and then the second source he's telling them how  they should gather their weapons and terrorize the infidels how the united states must suffer consequences for the allegation that he killed the al shabaab leader at an hour of this defendant is instructing this defendant who allegedly had no i not to be investigating this defendant for the most readily provable serious crime would have been negligent on their part this unlike any other field with terrorism it's not just the government's job to prosecute it really just to investigate it but to disrupt them and to prevent terrorist acts from happening knowing that this defendant already provided material support to al shabaab it would have been negligent not to be investigating through with done that proves too much i mean that's the background to all u s terror any terrorism investigation everywhere always they're looking for that and those terrorism organizations exist sure so the issue here is where i mean i soon this is a precisely why the prior panel remained there saying where was the finding made that this man statements intended to promote a conspiracy they were investigating at the time rather than it turns out he was involved in it i think the difference is judge that what we're looking at is not that he directly intended to promote that we certainly were looking at that in fact that's it's the source the second source was sent back to find out well how did you buy it where did you buy it from tell me how to buy it how much it's going to cost me can you hook me up with this person so we were looking for the ongoing conspiracy there but what the intent to promote is in this case with when we look at application note to be that obstructing an investigation into these crimes does intend to promote those crimes that sort of whereas courts  struggled right because that could slip into a strict liability offense just because you happen to have obstructed them knowing nothing about what they were investigating do you get this huge jump up what do you have a thought on that or even better what's the circuit that you think correctly identifies how we should look at this incident i think and khalid did it right which sorry was circuit word circuit and this court cited it in the opinion i think with this we're looking at the specific facts of the case and without not that i could use the names we have done in other terms in investigations where we haven't gone for it because we can't prove it but in this case what we have is this defendant f approached him randomised them put him there conducting a target investigation into his terrorist ties and then to al shabaab he was put on notice they did ask him specifically where did you come from when were you in kenya did your father die tell me about this arm technical you said you purchased and he denied it all he lied about it all it was a simple exculpatory no he lied he went to the point of saying that's not my voice on the tape you've made it up and then i remember district court said when we met lied on how we were smuggled there tell them they're going to be asked about these numbers call a larger role and have your fingerprints destroyed we're not dealing with a simple exculpatory no here we're dealing with active definitely said that they that he obstructed the investigation to lying to the f b i in the interview and by having deca shaikh lied to them i'm trying to remember but i can't really obstructed any investigation that just it turns out happened to be into terrorism or like one made the finding that they were a cop conducting a lawful yes in books occasion into conspiracy to commit material support providing that if we affirm and agree with your analysis especially if worse if they were given a predicament of clearer view how would you write the limiting principle so that the exculpatory no person person says i don't know the guy that you think just ran in my house and but he did so he lied and therefore he obstructed but it turns out that the government was investigating that other person for terrorism i think the defendant would have to be put on some notice and i think they would have to say that book indicting a terrorism investigation but not and we don't they don't say we're conducting a federal crime of terrorism one of the enumerated ones seems very formulaic but that's sort of why the remained occurred from the first panel right no one denied that they had told him we're looking into terrorism but our panel said but it's only a certain type of terrorism right well the panel says yes it has to be one of the numerator crimes and twenty three thirty two pages five and the court did so in terms of where to draw the line and is it enough to tell them  and you're asking a witness as opposed to a target who you're going to be questioned about specific information that you already have i would think that you'd have to give them perhaps some type of warning like a subject letter not not in writing but basically as you pointed out when counsel was speaking at some type of notice we're looking into these particular crimes although if you say no when you're wrong you're not just going to get the has them and we're only having this conversation because we're talking about you know with someone on the witness we wouldn't be talking about and let's leave that to a conviction right there would have to be a conviction for some type of obstructive offense or some type of conspiracy someone you know i'm assuming that most basic obstruction thousand and one right most investigations you know the f b i began when they got all their ducks lined up they go to the target or whatever they want to call the person say anything i want to say the false denial they'll add a thousand and one count that would become an obstruction under the cometary it would seem to maybe trigger that's my worry right and i think that actually  at least western district of texas we tend to only use thousand and one in my experience on terrorism cases where normally we don't do it especially with witnesses but in those cases i said it's was almost as if he were embarrassed by the plane reading the text of the transcript why would he give that up so quickly and easily almost the transcript read almost upset and i think that's why they first court had some issues with the factual findings as well tell me what is the purpose of this again i call it the  tagalong of the shari'a law while in confinement material what was not supposed to show i think what it showed was he was continuing to radicalize other people and that it just went to show that this was all in keeping with what he had been saying all along that he was a supporter  jihadi beliefs including frankly that the killing of as he referred to miss infidels and that he had actually assisted with a very large investment in this case the district court made very detailed factual findings based on the requirements that this court sent back down district court has not been shown to be clearly erroneous that this defendant was that the defendant did obstruct the f b i investigation by lying to the f b i about where and when he came from his support from al qaida asama been long in and that he bought the arm technical and that he further obstructed by having decca shake the high to the f b i about where and when they came and how his father was killed all of this was supported by the testimony i agree with the government that the best case is the bunk colic case urge of court to read the district court's opinion in the case because that involved a case where the government was doing a general terrorism but also an investigation into specific federal crimes and terrorism the district court judge in that case said that that the general terrorism investigation isn't sufficient for purposes of the guideline that it has to be a more specific targeted investigation of a federal crime of terrorism but they found the district court found in that case  specific enough they talked about that the government had a numerated specific potential violations they were investigating specific people al timimi and ali who were under investigation for conspiracy to loving  against the united states and conspiracy to assassinate the president and that during this investigation which involved a group of men from one i mean just slipped my mind one i keep coming up with temple and that's the incorrect name but one religious organization one place that they all met at and it ended up in the investigation of i believe eight of them or eleven of them and that resulted in a number of different charges being levied against these individuals and so there was a federal grand jury that was investigating various specific crimes and very specific individuals and this person column was called before the grand jury and and meet folks statements and obstructed the granger well actually what happened see he was given immunity to testify and he refused to testify so i do agree with the government that that's the best one to look at however i presented this issue to the court and i hope i haven't damage the law in any way by doing sound this is a difficult issue because the guideline inhance med has a very specific requirement involved  battled with this and most have held that it can't be strict liability because that makes it easier under the commentary to get the enhancement than it would be under the actual guideline itself and it also allows and i don't want to stress again my argument and your interpretation of this and he has been in no way is going to tie the government's hands from investigating terrorism and these cases are likely to become more frequent and it is possible that whatever decision is made there could be an exculpatory no case this is a thousand and one i feel like i defend a lot of thousand what it doesn't appear the government's vital investigative ability to not be able to say to someone who is giving them a false you know are you aware if you don't speak the truth you're looking at a lot of prison time this isn't going to be a little one thousand and one this is going to be your category four thirty two that would help the government investigator will say that the supreme court has held that it's not a problem for government agents to lie so if they don't know at that point whether it and they may not know at that point whether it's going to apply or not they can still threaten with it the case law is clear on that so this isn't going to tie the government's investigative hands at all and it's not going to tie the the sentencing judge's hands to determine the proper sentence for this individual so it really is a matter of interpret this guideline that provides for and one of the criticisms that academics have made of this guideline is that it has no gradations it's just one huge jump so there's no gradation for supportive conduct which under  two three three nine b is support for up foreign terrorist organization can include providing money to a humanitarian arm of hamas well then you can still be convicted for that means scholars have pointed out it doesn't have  innocent person i can't see one so since the first appeal in this case i have only found four published opinions that have applied this enhanced on the maybe the government and courts aren't misusing it to know that i mean you know i wish i could and i wish there