**10-3916-cr United States v. Siddiqui** 

*The Clerk of the Court is respectfully directed to amend the caption to conform with the above.

**The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation. 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August Term, 2011 8 9 (Argued: February 10, 2012 Decided: November 5, 2012) 10 Amended: November 15, 2012 11 12 Docket No. 10-3916-cr 13 14 15 UNITED STATES OF AMERICA, 16 17 Appellee , 18 19 –v.– 20 21 AAFIA SIDDIQUI, 22 23 Defendant-Appellant

. * 24 25 26 27 Before: 28 29 WESLEY, CARNEY, Circuit Judges , MAUSKOPF, District Judge

. ** 30 31 Defendant-Appellant Aafia Siddiqui appeals her criminal 32 convictions, entered after a jury trial in the United States 33 District Court for the Southern District of New York 34 (Berman, J. ), for attempted murder of United States 35 nationals, attempted murder of United States officers and 36 employees, armed assault of United States officers and 37 employees, assault of United States officers and employees, 38 and use of a firearm during a crime of violence. She also 392 challenges her sentence of eighty-six years’ imprisonment. 1 Siddiqui contends that the district court erred in a number 2 of ways. We address five of Siddiqui’s arguments here:(1) 3 that Count One of the indictment was deficient because the 4 Attorney General failed to timely issue a required 5 certification for prosecution under 18 U.S.C. § 2332, and 6 because the statutes underlying Counts Two through Seven do 7 not apply extraterritorially in an active theater of war; 8 (2) that the district court committed reversible error by 9 admitting, under Federal Rule of Evidence 404(b), documents 10 allegedly found in her possession at the time Afghan 11 officials took her into custody; (3) that the district court 12 erred in allowing her to testify in her own defense despite 13 a request from defense counsel to preclude her from doing so 14 because of her alleged mental illness; (4) that the district 15 court erred in allowing the government to rebut her 16 testimony with un-Mirandizedstatements she gave to FBI 17 agents while hospitalized at Bagram Airfield because those 18 statements allegedly were not voluntary; and (5) that the 19 district court erred in applying the terrorism enhancement 20 under section 3A1.4 of the United States Sentencing 21 Guidelines. We address Siddiqui’s remaining arguments in an 22 accompanying summary order. 23 24 AFFIRMED. 25 26 27 28 DAWN M. CARDI (Chad L. Edgar, on the brief ), Dawn 29 M. Cardi & Associates, New York, NY, for 30 Defendant-Appellant

. 31 32 JENNA M. DABBS, JESSE M. FURMAN, Assistant United 33 States Attorneys (Christopher L. Lavigne, 34 Assistant United States Attorney, on the 35 brief ), forPreet Bharara, United States 36 Attorney for the Southern District of New 37 York, New York, NY, for Appellee

. 38 39 40 41 42 43 443 WESLEY, Circuit Judge : 1 Defendant-Appellant Aafia Siddiqui appeals from a 2 judgment of the United States District Court for the 3 Southern District of New York (Berman, J. ) entered on 4 September 23, 2010, convicting her after a jury trial of one 5 count of attempted murder of United States nationals in 6 violation of 18 U.S.C. § 2332(b)(1); one count of attempted 7 murder of United States officers and employees in violation 8 of 18 U.S.C. § 1114(3); one count of armed assault of United 9 States officers and employees in violation of 18 U.S.C. §§ 10 111(a)(1) and (b); one count of using a firearm during a 11 crime of violence in violation of 18 U.S.C. § 924(c); and 12 three counts of assault of United States officers and 13 employees in violation of 18 U.S.C. § 111(a)(1). The 14 district court sentenced her principally to 86 years’ 15 imprisonment. Siddiqui urges this Court to reverse her 16 convictions and, failing that, to vacate her sentence. We 17 address five of the arguments that Siddiqui raises on appeal 18 here and the remaining issues in an accompanying summary 19 order. 20 21 224 **I. BACKGROUND** 1
**A. Offense Conduct** 2 Around dusk on July 17, 2008, Afghan National Police 3 (“ANP”) detained Aafia Siddiqui, a United States-educated 4 Pakistani national, in Ghazni City, Afghanistan, on 5 suspicion of attempting to attack the Governor of Ghazni. 6 When police took her into custody, Siddiqui possessed, among 7 other things, various documents that discussed the 8 construction of weapons, referenced a “mass casualty 9 attack,” and listed a number of New York City landmarks. 10 Afghan authorities brought Siddiqui to an ANP facility for 11 questioning. Later that evening, the Governor of Ghazni 12 delivered the materials found in Siddiqui’s possession to 13 the United States Army. 14 The following morning, the United States dispatched a 15 team to the ANP facility with the objective of interviewing 16 Siddiqui and ultimately taking her into American custody. 17 The team–most dressed in military fatigues
**–**consisted of two 18 FBI agents and members of a military special forces unit. 19 Afghan officials brought the team to a poorly lit room 20 partitioned by a yellow curtain. The room was crowded with 21 Afghan officials, and unbeknownst to the Americans, Siddiqui 22 was sequestered unrestrained behind the curtain. 235 The presence of a large number of Afghan officials led 1 members of the American team to believe that they had been 2 brought to the room to discuss the terms of their access to 3 Siddiqui. One of the team members, a Chief Warrant Officer, 4 moved to a chair near the curtain dividing the room. After 5 quickly glancing behind the curtain and seeing nothing, he 6 set down his M-4 rifle and turned to engage the Afghan 7 officials in conversation. Moments later, Siddiqui gained 8 control of the rifle, aimed it at members of the American 9 team, shouted, and fired. The team’s interpreter lunged at 10 and struggled with Siddiqui. As the interpreter wrestled 11 with her, the Chief Warrant Officer drew his sidearm and 12 shot Siddiqui in the stomach. 13 Team members then attempted to restrain Siddiqui, who 14 was fiercely resisting and screaming anti-American 15 statements. One witness recalled Siddiqui stating, “I am 16 going to kill all you Americans. You are going to die by my 17 blood.” Another recounted that Siddiqui yelled “death to 18 America” and “I will kill all you motherfuckers.” 19 Eventually, the Americans were able to subdue Siddiqui 20 enough to begin to render emergency medical aid to her. 21 After providing preliminary treatment at the scene, the 226 Americans transported her to a number of military bases in 1 Afghanistan to undergo surgery and receive further care. On 2 July 19, 2008, American forces moved Siddiqui to Bagram 3 Airfield to recuperate. 4 While recovering at Bagram, Siddiqui was guarded by an 5 FBI team. She was tethered to her hospital bed in soft 6 restraints. During the course of her stay at Bagram, 7 Siddiqui provided a number of incriminating, un-Mirandized 8 statements to two members of the security team. In 9 particular, she (1) asked about the penalty for attempted 10 murder; (2) stated that she had a number of documents in her 11 possession at the time of her arrest and recognized some of 12 them when shown to her; (3) said that she had picked up a 13 rifle with the intention of scaring the American team and 14 escaping; and (4) noted that “spewing” bullets at Americans 15 was a bad thing. 16 The government filed a sealed criminal complaint 17 against Siddiqui in the Southern District of New York on 18 July 31, 2008. On August 4, 2008, the government 19 transferred Siddiqui to the United States for prosecution. 20 A month later, Siddiqui was indicted**.** 21
227 **B. Pre-Trial** 1 Soon after the indictment was filed, the district court 2 ordered that Siddiqui undergo psychiatric evaluations of her 3 competence to stand trial. In a report issued on November 4 6, 2008, Dr. Leslie Powers opined that Siddiqui was not 5 currently competent, citing, among other things, Siddiqui’s 6 reports of visual hallucinations. Later, Dr. Powers revised 7 her assessment, finding that Siddiqui was malingering to 8 avoid prosecution. Other experts arrived at the same 9 conclusion, although one expert commissioned by the defense 10 opined that Siddiqui was not competent. The district court 11 held a competency hearing on July 6, 2009. After canvassing 12 the relevant evidence, the court found Siddiqui competent to 13 stand trial. 14 In advance of trial, the district court ruled on a 15 number of motions, some of which are relevant here. 16 Siddiqui first moved to dismiss all of the counts of the 17 indictment. As to Count One, Siddiqui claimed that the 18 Attorney General failed to timely issue the required written 19 certification that her offense (attempted murder of United 20 States nationals) “was intended to coerce, intimidate, or 211The certification was filed on the same day as the indictment. 8 retaliate against a government or a civilian population.” 1 1 18 U.S.C. § 2332(d). Siddiqui also contended that Counts 2 Two through Seven, charging violations of 18 U.S.C. §§ 1114, 3 111, and 924(c), should be dismissed because the statutes do 4 not have extraterritorial application under the 5 circumstances of her case. The district court denied 6 Siddiqui’s motions. 7 The district court also considered the government’s 8 motion in limine to admit certain documents and other 9 evidence recovered from Siddiqui at the time of her arrest 10 by Afghan officials. These documents, some of which were in 11 Siddiqui’s handwriting and bore her fingerprints, referred 12 to attacks on the United States and the construction of 13 various weapons. The court found this evidence admissible 14 pursuant to Federal Rule of Evidence 404(b) to show 15 Siddiqui’s “motive, intent, identity, and knowledge.” In 16 finding the documents admissible, the court rejected the 17 argument that the evidence would cause Siddiqui unfair 18 prejudice, concluding that the documents were no more 19 sensational than the crimes charged. The court also noted 20 that it would instruct the jury that the documents were not 21 to be considered as propensity evidence. 222The district court gave a limiting instruction to the jury, informing them that they could not consider the documents as proof that Siddiqui was predisposed to commit the crimes charged. The district court made clear that the documents could only be considered to the extent they demonstrated Siddiqui’s motive, intent, or knowledge. 9 **C. Trial** 1 At trial, the government presented six members of the 2 American interview team who testified that Siddiqui gained 3 control of the Chief Warrant Officer’s rifle and fired at 4 them. Three more witnesses who did not directly observe the 5 shooting testified that they heard M-4 rifle shots. A 6 government expert testified that the fact that no gunpowder 7 residue was found on the curtain hanging in the room did not 8 necessarily indicate that an M-4 had not been fired because 9 someone standing between the curtain and the weapon could 10 have absorbed the residue. The government also introduced 11 the 404(b) documents discussed above. 2 12 The defense put forth a forensic metallurgist who, 13 based on the lack of forensic evidence of a discharge of a 14 M-4 rifle at the crime scene, testified that he did not 15 believe an M-4 had been fired in the room. In particular, 16 he found it implausible that someone could discharge an M-4 17 rifle in a room without bullet fragments or gunpowder 18 residue being recovered by authorities. The defense also 193The government elicited admissions from the officer that he previously gave inconsistent statements to American investigators.

4Defense counsel viewed this as a disastrous decision, and went so far as to make an application to the court to prevent Siddiqui from testifying. In their view, Siddiqui suffered from diminished capacity, such that she did not appreciate the risks inherent in testifying. Further, based on previous outbursts during the proceedings, they feared that Siddiqui would “turn the [trial] into a spectacle,” thus alienating the jury and damaging her prospects for acquittal. Prior to Siddiqui’s testimony, the defense held an ex parte conference with the judge where they aired their concerns. The judge then opened the courtroom to the public, and Siddiqui indicated on the record that she understood (1) that testifying was a significant decision, and one that her counsel had unanimously recommended against; (2) that her testimony had to be relevant; (3) that if she veered off into tangential topics the court may stop her testimony; and (4) that by testifying she would be subject to an intense cross-examination aimed at undercutting her testimony. 10 introduced deposition testimony of an ANP officer that when 1 Siddiqui was arrested she possessed documents describing how 2 to make explosive devices, among other things, and that 3 while in Afghani custody she made anti-American statements 4 and asked not be turned over to the United States. He also 5 stated that he saw an American soldier walk behind the 6 curtain prior to hearing shots fired, although he did not 7 directly observe the shooting. 3 Significantly, the officer 8 testified that he observed a technician remove two rifle 9 shells from the scene. 10 Against the advice and over the objection of her 11 attorneys, Siddiqui took the stand to testify in her own 12 defense. 4Though her testimony at times lacked focus, she 13 was able to provide her version of the events that 14 transpired on July 18, 2008. According to Siddiqui, she was 1511 sitting behind a curtain in a room at the ANP facility when 1 she heard American voices. She feared being taken into 2 American custody and peeked through an opening in the 3 curtain with the hope of finding an escape route. Siddiqui 4 testified that she was then shot from multiple directions. 5 She stated that she never picked up, aimed, or fired an M-4 6 rifle at the Americans. 7 Siddiqui claimed that she could not confirm that she 8 possessed documents at the time of her arrest in Afghanistan 9 because she was “in a daze.” JA 2371. She stated that the 10 bag in which the documents were found was not hers but 11 rather was given to her. When confronted with the document 12 referencing mass casualty attacks and listing New York City 13 landmarks, Siddiqui testified that it was a “possibility” 14 that the document was in her own handwriting. JA 2372. 15 After the defense rested, the government presented its 16 rebuttal case. Two FBI agents who were members of 17 Siddiqui’s security detail during her recovery at Bagram 18 recounted several incriminating statements that Siddiqui 19 made to them. Before receiving this testimony, the district 20 court held a hearing to determine whether Siddiqui gave 215The court conducted this voluntariness inquiry prior to admitting Siddiqui’s testimony, and the government asked Siddiqui about her statementsduring its cross-examination in an attempt to impeach her. On crossexamination, she denied she made the statements. 12 these un-Mirandized statements voluntarily. 5At that 1 hearing, the two FBI agents testified, as did Siddiqui. The 2 district court determined that Siddiqui’s statements were 3 voluntary. 4 On February 3, 2010, the jury returned a guilty verdict 5 on all counts of the indictment. The district court 6 sentenced Siddiqui on September 23, 2010. In addition to a 7 number of other enhancements, the court applied the 8 terrorism enhancement pursuant to U.S.S.G. § 3A1.4. In 9 applying the enhancement, the court found that Siddiqui’s 10 offense was calculated to influence the conduct of the 11 government by intimidation, namely, attempting to frustrate 12 the interview team’s efforts to detain her. Further, based 13 on a number of anti-American statements Siddiqui made before 14 and at the time of the shooting, the court determined that 15 Siddiqui’s conduct was calculated to retaliate against the 16 United States government. The district court sentenced 17 Siddiqui principally to 86 years’ imprisonment and five 18 years of supervised release. 19 Siddiqui timely appealed her convictions and sentence. 2013 **II. DISCUSSION** 1 **A. Denial of Siddiqui’s Motion to Dismiss the Indictment** 2 Siddiqui raised below, and now reasserts, several 3 challenges to the indictment. According to Siddiqui, the 4 district court should have dismissed Count One, which 5 charged a violation of 18 U.S.C. § 2332, because the United 6 States Attorney General did not timely issue the 7 certification required by 18 U.S.C. § 2332(d). She also 8 argues that the remaining counts are deficient because the 9 underlying statutes do not apply extraterritorially in an 10 active theater of war. We disagree. 11 Section 2332(d) provides that “[n]o prosecution for any 12 offense described in this section shall be undertaken by the 13 United States except on written certification of the 14 Attorney General . . . [that] such offense was intended to 15 coerce, intimidate, or retaliate against a government or 16 civilian population.” Siddiqui relies on speedy trial 17 principles to conclude that a prosecution is commenced at 18 the time of arrest or the filing of formal charges. But 19 Siddiqui’s argument here encounters an obstacle: the 20 original complaint on which Siddiqui was arrested did not 21 charge a violation of § 2332. The first instrument to do so 2214 was the indictment, which was filed the same day the 1 Attorney General issued the § 2332(d) certification. 2 Siddiqui has an answer to the problem. She points out 3 that the statute requires certification prior to a 4 prosecution for an “offense describedin this section.” 18 5 U.S.C. § 2332(d) (emphasis added). In her view, the 6 Attorney General is required to issue the certification 7 before an accusatory instrument describing facts that could 8 constitute a violation of § 2332 is filed, regardless of 9 whether that instrument actually charges a violation of 10 § 2332. Siddiqui reasons that because the criminal 11 complaint filed on July 31, 2008 described conduct 12 proscribed by § 2332, the Attorney General’s certification 13 filed the day of the indictment was untimely. 14 Siddiqui’s argument offers an unusual reading of what 15 appears to be straightforward statutory language—a reading 16 that would undercut the very purpose of the provision. 17 Section 2332(d)’s requirement that the Attorney General 18 issue a certification before “prosecution for any offense 19 described in [§ 2332] shall be undertaken” is most naturally 20 read as a requirement that the Attorney General issue the 21 certification either at the time of or before the filing of 2215 the first instrument charging a violation of § 2332. This 1 view furthers the purpose of § 2332(d)—namely, ensuring that 2 the statute reaches only terrorist violence inflicted upon 3 United States nationals, not “[s]imple barroom brawls or 4 normal street crime.” See H.R. Conf. Rep. 99-783, at 87, 5 reprinted in 1986 U.S.C.C.A.N. 1926, 1960. 6 Under Siddiqui’s interpretation of the provision, the 7 Attorney General would have to issue the certification any 8 time someone engaged in conduct that could be covered by the 9 statute. This would deprive the Attorney General of the 10 opportunity to sort through the facts of each case to 11 determine if it merited certification—and prosecution—under 12 the statute. More simply put, Siddiqui’s interpretation 13 would undercut § 2332(d)’s primary objective. Accordingly, 14 the district court did not err in denying Siddiqui’s motion 15 to dismiss Count One of the indictment. 16 Siddiqui next contends that Counts Two through Seven of 17 the indictment should be dismissed because the charging 18618 U.S.C. § 1114 prohibits the murder or attempted murder of any United States officer or employee while such officer or employee is engaged in, or on account of, his or her official duties.

718 U.S.C. § 111 punishes those who assault, resist, oppose, impede, intimidate, or interfere with a United States officer or employee while he or she is engaged in, or on account of, his or her official duties.

818 U.S.C. § 924(c) prohibits the use of a firearm during the commission of a crime of violence. 16 statutes—18 U.S.C. §§ 1114, 6111, 7and 924(c) 8—do not have 1 application extraterritorially “in an active theater of 2 war.” This argument is without merit. 3 “Congress has the authority to ‘enforce its laws beyond 4 the territorial boundaries of the United States.’” United 5 States v. Yousef , 327 F.3d 56, 86 (2d Cir. 2003) (quoting 6 EEOC v. Arabian Am. Oil Co. , 499 U.S. 244, 248 (1991)). The 7 ordinary presumption that laws do not apply 8 extraterritorially has no application to criminal statutes. 9 United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 10 2011). “When the text of a criminal statute is silent, 11 Congressional intent to apply the statute extraterritorially 12 must ‘be inferred from the nature of the offense.’” Id. 13 (quoting United States v. Bowman , 260 U.S. 94, 98 (1922)). 14 The statutes underlying Counts Two through Seven apply 15 extraterritorially. Subsequent to the filing of Siddiqui’s 16 brief, we held that 18 U.S.C. § 1114 applies 17 extraterritorially. Al Kassar, 660 F.3d at 118. We 1817 reasoned that “the nature of the offense–protecting U.S. 1 personnel from harm when acting in their official 2 capacity–implies an intent that [the statute] apply outside 3 of the United States.” Id. We see no basis for expecting 4 Congress to have intended to limit these protections to U.S. 5 personnel acting within the United States only. For the 6 same reason, § 111 applies extraterritorially. See United 7 States v. Benitez , 741 F.2d 1312, 1316-17 (11th Cir. 1984); 8 see also United States v. Hasan , 747 F. Supp. 2d 642, 685-86 9 (E.D. Va. 2010). Like 18 U.S.C. § 1114, the nature of the 10 offense–protecting United States officers and employees 11 engaged in official duties from harm–implies a Congressional 12 intent that § 111 apply outside of the United States. See 13 Al Kassar, 660 F.3d at 118. 14 As for § 924, which criminalizes the use of a firearm 15 during commission of a crime of violence, every federal 16 court that has considered the issue has given the statute 17 extraterritorial application where, as here, the underlying 18 substantive criminal statutes apply extraterritorially. 19 See, e.g. , United States v. Belfast , 611 F.3d 783, 815 (11th 20 Cir. 2010); United States v. Ahmed , No. 10 Cr. 131 (PKC), 21 2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012); United 229Indeed, this argument is premised on a misreading of a number of cases. Siddiqui contends that international law “allow[s] an occupying force to try unlawful belligerents only in a military commission,” see Siddiqui Br. 66, and thus extraterritorial application of the statutes at issue would run afoul of the general presumption that Congress intends its statutes to comport with international law. But the portion of Ex parte Quirin , 317 U.S. 1, 30 (1942), that Siddiqui cites merely stands for the more pedestrian observation that unlawful combatants, unlike lawful combatants, may be subjected to trial before a military commission. Moreover, the case Siddiqui cites for the proposition that “[a]t least one court has expressed reservation about extending the extraterritorial reach of § 1114 into Afghanistan because of the sensitive state of the relationship between the two nations,” see Siddiqui Br. 65-66, does not mention § 1114 at all. Instead, the case addressed whether federal courts had jurisdiction to afford habeas corpus relief and the protection of the Suspension Clause to aliens held in Executive detention at Bagram Airfield. Al Maqaleh v. Gates , 605 F.3d 84, 99 (D.C. Cir. 2010). 18 States v. Mardirossian, 818 F. Supp. 2d 775, 776-77 1 (S.D.N.Y. 2011). We see no reason to quarrel with their 2 conclusions. 3 Siddiqui’s argument that the statutes, even if 4 generally extraterritorial, do not apply “in an active 5 theater of war” is unpersuasive. 9As the government points 6 out, it would be incongruous to conclude that statutes aimed 7 at protecting United States officers and employees do not 8 apply in areas of conflict where large numbers of officers 9 and employees operate. The district court appropriately 10 denied Siddiqui’s motion to dismiss Counts Two through Seven 11 of the Indictment. 12 **B. Admission of Documents under Federal Rule of Evidence** 13 **404(b)** 14 15 The district court admitted documents allegedly found 16 in Siddiqui’s possession that explained the construction and 1719 use of various weapons and described a “mass casualty 1 attack” on a number of New York City landmarks for the 2 purpose of demonstrating Siddiqui’s knowledge, motive, and 3 intent. Siddiqui argues that her defense–that she never 4 picked up and fired the Chief Warrant Officer’s 5 rifle–removed those issues from the case and thus admission 6 of the documents was improper. 7 A district court’s evidentiary rulings encounter 8 trouble on appeal only where the district court abuses its 9 discretion. United States v. Mercado , 573 F.3d 138, 141 (2d 10 Cir. 2009). A district court abuses its discretion when 11 its evidentiary rulings are “arbitrary and irrational.” Id

. 12 But even when an evidentiary ruling is “manifestly 13 erroneous,” the defendant will not receive a new trial if 14 admission of the evidence was harmless. Cameron v. City of 15 New York, 598 F.3d 50, 61 (2d Cir. 2010). 16 Federal Rule of Evidence 404(b) provides that evidence 17 of a defendant’s prior crimes, wrongs, or other acts cannot 18 be used to prove that a defendant was a bad fellow and most 19 likely remains one–that he has a criminal nature or 20 propensity and the acts in question are consistent with his 21 nature or tendency towards crime. However, this type of 2210Of course, the strictures of Federal Rules of Evidence 401, 402, and 403 still apply to Rule 404(b) evidence. The evidence must be relevant to an issue in dispute, and its probative value must outweigh the risk of unfair prejudice. See United States v. Colon , 880 F.2d 650, 656 (2d Cir. 1989). 20 evidence may be admissible for other legitimate purposes, 1 such as demonstrating motive, opportunity, identity, intent, 2 and knowledge. Id. Under our “inclusionary” approach, all 3 “other act” evidence is generally admissible unless it 4 serves the sole purpose of showing a defendant’s bad 5 character. United States v. Curley, 639 F.3d 50, 56 (2d 6 Cir. 2011). 10 7 A defendant may, however, forestall the admission of 8 Rule 404(b) evidence by advancing a theory that makes clear 9 that the object the 404(b) evidence seeks to establish, 10 while technically at issue, is not really in dispute. See 11 United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). 12 For example, a defense theory that the defendant did not 13 commit the charged act effectively removes issues of intent 14 and knowledge from the case. See idat 657; United States 15 v. Ortiz , 857 F.2d 900, 904 (2d Cir. 1988). Siddiqui’s 16 defense was just that–“I didn’t fire the M-4.” 17 But even assuming that Siddiqui’s defense theory 18 effectively removed any issue of her intent or knowledge, 19 the documentary evidence remained relevant to demonstrate 2021 Siddiqui’s motive. Motive has been variously defined as 1 “the reason that nudges the will and prods the mind to 2 indulge the criminal intent,” United States v. Benton , 637 3 F.2d 1052, 1056 (5th Cir. 1981) (internal quotation marks 4 omitted); “the rationale for an actor’s particular conduct,” 5 United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010); and 6 “an emotion or state of mind that prompts a person to act in 7 a particular way,” Charles Alan Wright and Kenneth W. 8 Graham, Jr., Federal Practice and Procedure: Federal Rules 9 of Evidence § 5240. “Although it does not bear directly on 10 the charged elements of a crime, evidence offered to prove 11 motive is commonly admitted.” United States v. Salameh , 152 12 F.3d 88, 111 (2d Cir. 1998). And unlike issues of knowledge 13 and intent, the defendant’s motive–an explanation of why the 14 defendant would engage in the charged conduct–becomes highly 15 relevant when the defendant argues that he did not commit 16 the crime. 17 For instance, in Salameh, the defendants were charged 18 with a conspiracy to bomb the World Trade Center. Id.at 19 108. The district court admitted documents possessed by the 20 defendants that “bristled with strong anti-American 21 sentiment.” Id. at 111. On appeal, we found those 2211In her brief, Siddiqui appears to contend that the government was required to call Afghan witnesses who were present at Siddiqui’s arrest to confirm this fact. We disagree. There was more than sufficient evidence to establish that the documents were in Siddiqui’s possession at the time of her arrest. Some were in her handwriting, and some bore her fingerprints. Moreover, on the day of her arrest, Afghan officials delivered the documents to American military authorities, which also tends to corroborate that Siddiqui possessed the documents when arrested by Afghan authorities. 22 documents admissible to demonstrate the conspiracy’s motive. 1 Id. 2 Here, the documents the government introduced pursuant 3 to Rule 404(b) detail, among other things, the construction 4 of fertilizer and plastic explosives. One document in 5 particular discusses radioactive bombs, biological weapons, 6 and chemical weapons. That document also contains the 7 phrase “mass casualty attack” and lists a number of New York 8 City landmarks, including Grand Central Terminal, the Empire 9 State Building, the Statute of Liberty, and the Brooklyn 10 Bridge. Taken together, these documents, which were in 11 Siddiqui’s possession at the time Afghan officials took her 12 into custody11and some of which were in her handwriting, 13 supply a plausible rationale for why Siddiqui would fire a 14 rifle at the American interview team, namely, she harbored 15 an anti-American animus. This motive was relevant to the 16 ultimate issue in dispute at trial–whether Siddiqui picked 17 up and fired the M-4 rifle at the American interview team. 1812Although Siddiqui often characterizes the admitted documents as “adverse and prejudicial,” “incendiary,” and “powerful, prejudicial, and damning,” she never argues in her briefs that the evidence should have been excluded under Federal Rule of Evidence 403 on a theory that its probative value is substantially outweighed by a danger of unfair prejudice. As such, the argument is waived. See Tolbert v. Queens College , 242 F.3d 58, 76 (2d Cir. 2001);see also Frank v. United States , 78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds by, 521 U.S. 1114 (1997).

23 Accordingly, the district court did not abuse its discretion 1 in admitting the documents pursuant to Rule 404(b). 12 2 But even if we agreed with Siddiqui that the district 3 court abused its discretion in admitting the documents, that 4 would not end the matter. There would remain the question 5 of whether the error was harmless. An evidentiary error is 6 harmless “if the appellate court can conclude with fair 7 assurance that the evidence did not substantially influence 8 the jury.” United States v. Cadet , 664 F.3d 27, 32 (2d Cir. 9 2011) (internal quotation marks omitted). Several factors 10 bear on the inquiry: whether the evidence was tied to “an 11 issue that [was] plainly critical to the jury’s decision”; 12 “whether that [evidence] was material to the establishment 13 of the critical fact or whether it was instead 14 corroborat[ive] and cumulative”; and “whether the wrongly 15 admitted evidence was emphasized in arguments to the jury.” 16 Curley, 639 F.3d at 58 (internal quotation marks omitted). 17 But the most critical factor is “the strength of the 18 government’s case.” Id. (internal quotation marks omitted). 1924 Here, although the government by its own admission 1 “repeatedly referenced the documents introduced at trial,” 2 Government Br. 37, the jury also had ample testimony before 3 it regarding anti-American statements Siddiqui made at the 4 time of the shooting from which it could conclude that 5 Siddiqui harbored an animus towards the United States. And 6 most importantly, the strength of the government’s case was 7 overwhelming. Among other evidence, six members of the 8 American interview team testified that Siddiqui gained 9 control of the Chief Warrant Officer’s rifle and fired at 10 them. Another three government witnesses who did not 11 observe the shooting testified that they heard M-4 rifle 12 shots. Moreover, after Siddiqui testified, the government 13 introduced the testimony of two FBI agents who had 14 interviewed Siddiqui. According to those agents, Siddiqui, 15 among other things, (1) asked what the penalty for attempted 16 murder was; and (2) noted that “spewing” bullets at 17 Americans was a bad thing. 18 Siddiqui counters that her forensic expert’s opinion 19 that an M-4 rifle had not been fired in the room effectively 20 neutralized the government’s case against her. However, 21 this forensic expert’s testimony was undermined by one of 2225 Siddiqui’s own witnesses, who testified that two rifle 1 shells were recovered from the room, and by a government 2 expert’s testimony that the absence of certain forensic 3 evidence from the room was not necessarily inconsistent with 4 the firing of a weapon. 5 Siddiqui also asserts that our decision in United 6 States v. Colon, 880 F.2d 650 (2d Cir. 1989), requires us to 7 grant her a new trial. She argues that Colon mandates that 8 we assess the strength of the government’s case without 9 reference to the government’s cross-examination of Siddiqui 10 or the incriminating statements she made at Bagram and that 11 Colonrequires a new trial because the admission of the 12 documents forced her to testify and she was harmed by doing 13 so. We disagree. 14

In Colon, the defendant was charged with heroin 15 distribution. Id.at 652. His defense was that he did not 16 engage in the charged act. Id.at 658. Nevertheless, the 17 district court admitted evidence concerning two prior 18 instances in which the defendant had sold heroin to 19 demonstrate knowledge and intent–an obvious error. Id.at 20 656. The defendant then testified, and, in the words of his 21 counsel, "the [Assistant] U.S. Attorney made a jackass out 2226 of him." Id.at 661 (brackets in original). Specifically, 1 the cross-examination cast doubt on the defendant's 2 credibility and delved deeply into the circumstances 3 surrounding the defendant's prior involvement with heroin. 4 Id.Because the record in Colondemonstrated that the 5 defendant's case was badly damaged by the erroneous 6 admission of the evidence, and because the defense may have 7 felt that there was no alternative but to have the defendant 8 testify as a result, we granted the defendant a new trial. 9 See id.at 661-62. 10 Here, we need not resolve the issue of whether Colon 11 necessitates that we measure the strength of the 12 Government’s case without reference to either Siddiqui’s 13 cross-examination or the admission of the incriminating 14 statements she made at Bagram. Even without that evidence, 15 the government’s case against Siddiqui can only be fairly 16 characterized as devastating. 17 We also disagree with Siddiqui’s claim that Colon 18 requires a new trial because the admission of the 404(b) 19 evidence forced her to testify and her defense was badly 20 damaged by that testimony. Unlike in Colon, the 21 introduction of the 404(b) evidence here did not necessitate 2227 Siddiqui’s testimony from an objective, strategic 1 standpoint. The 404(b) evidence was somewhat cumulative on 2 the issue of whether Siddiqui harbored an anti-American 3 animus, given that numerous witnesses testified as part of 4 the government’s case-in-chief that she made anti-American 5 statements during the shooting incident. Further, even 6 after the introduction of the 404(b) evidence, defense 7 counsel advised Siddiqui not to testify, we presume in large 8 part because her testimony would open the door to the 9 admission of the incriminating statements she made while 10 recovering at Bagram. Colon does not allow a defendant to 11 make an otherwise harmless error harmful based on her simple 12 assertion that the error compelled her to testify. 13 **C. Denial of Defense Counsel’s Application to Keep Siddiqui** 14 **from Testifying** 15 16 It is well established that criminal defendants have 17 the right to testify in their own defense. Rock v. 18 Arkansas , 483 U.S. 44, 49 (1987); see Brown v. Artuz , 124 19 F.3d 73, 76 (2d Cir. 1997). “This right . . . is . . . 20 essential to due process of law in a fair adversary 21 process.” Bennett v. United States , 663 F.3d 71, 84 (2d 22 Cir. 2011) (internal quotation marks omitted). That is 23 because “the most important witness for the defense in many 2428 criminal cases is the defendant himself,” and he has the 1 “right to present his own version of events in his own 2 words.” Rock, 483 U.S. at 52. The ultimate decision to 3 testify remains at all times with the defendant; defense 4 counsel, though charged with an obligation to apprise the 5 defendant of the benefits and risks of testifying, cannot 6 make the decision, regardless of tactical considerations. 7

Brown, 124 F.3d at 77-78. 8 Siddiqui’s counsel does not challenge these clearly 9 established principles. Instead, she urges us to craft an 10 exception to the general rule, arguing that in some cases a 11 defendant may be competent to stand trial yet incompetent to 12 exercise her right to testify without the approval of 13 defense counsel. 14 In support of her argument, counsel relies heavily on 15 the Supreme Court’s decision in Indiana v. Edwards , 554 U.S. 16 164 (2008). There, the Court held that a state may 17 determine that a defendant who is competent to stand trial 18 may nonetheless be incapable of representing himself at 19 trial and may thus insist that the defendant have trial 20 counsel. Id. at 167. The Court noted that a mentally ill 21 defendant may not possess the ability to execute tasks such 2229 as organizing a defense, arguing points of law, and 1 questioning witnesses. Id. at 176-77. It further observed 2 that a prolonged spectacle could result from such a 3 defendant representing himself, and that spectacle would 4 undercut the Constitution’s goal of providing a fair trial. 5 Id. at 177. 6 Counsel’s reliance on Edwards is misplaced. First, as 7 three other circuits have recognized, Edwards holds that a 8 court may require that trial counsel appear on behalf of a 9 mentally ill defendant, not that it must do so. See United 10
States v. Turner, 644 F.3d 713, 724 (8th Cir. 2011); United 11 States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); United 12 States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009). 13 But even if Edwards mandated trial courts to require trial 14 counsel for a discrete group of mentally ill defendants, the 15 case still would have no application here. Common sense 16 dictates that the mental capacity needed to conduct an 17 entire trial is much greater than the mental capacity 18 required to play the more limited role of witness on one’s 19 own behalf. Moreover, the defendant’s right to air her 20 version of events before a jury is “more fundamental to a 21 personal defense than the right of self-representation.” 2230 Rock, 483 U.S. at 52. As such, Edwards does not 1 significantly support, let alone compel, the conclusion that 2 a district court may prevent a mentally ill defendant from 3 testifying on her own behalf if defense counsel moves to 4 keep the defendant off the stand. 5 We question whether the Constitution permits a finding 6 that a criminal defendant is competent to stand trial, yet 7 incompetent to determine whether to testify on her own 8 behalf. But we need not decide that question today. Here, 9 the district court went to extraordinary lengths to ensure 10 that Siddiqui understood the implications of testifying and 11 had the capacity to testify. Even were we to discern any 12 daylight between the standards governing a defendant's 13 capacity to stand trial and those for assessing her capacity 14 to determine whether to testify (and then, actually to 15 testify), we would find no reason to upset the district 16 court's implicit determination that Siddiqui did in fact 17 have the requisite capacity to make the latter decision 18 here. That Siddiqui's choice to testify—like many 19 defendants' decisions to testify—was a poor one, does not 20 alter our analysis. See Brown, 124 F.3d at 77-78. 21 2213These soft restraints, made of terry cloth and cotton, provided Siddiqui a fair range of mobility. In fact, the restraints provided such mobility that Siddiqui was able to remove them. After Siddiqui removed the restraints, the agents positioned the straps such that it was impossible to remove the strap on one hand with the other. The restraints were loose enough to allow her to read, drink, and wash, and were removed when Siddiqui required use of the washroom. 31 **D. Voluntariness of Siddiqui’s un-**Mirandized **statements at** 1 **Bagram** 2 3 Siddiqui contends that the district court erred in 4 finding that the incriminating, un-Mirandized statements she 5 gave to two members of the FBI security team while she was 6 hospitalized at Bagram Airfield were voluntary and thus 7 could be used in the government’s rebuttal case after 8 Siddiqui testified. Prior to Siddiqui’s testimony, the 9 court held a hearing to determine the voluntariness of the 10 statements. At that hearing, the two FBI agents testified, 11 and the district court’s ruling credited their testimony. 12 Their testimony established the following. 13 During the course of her stay at Bagram, Siddiqui was 14 tethered to her bed in soft restraints to prevent her 15

escape. 13The agents endeavored to meet Siddiqui’s needs as 16 best they could and never denied her access to the restroom, 17 food, water, or medical attention. Further, Siddiqui had 18 access to a medical call button that allowed her to contact 19 the hospital’s medical staff directly; therefore, she was 2032 not entirely dependent on the agents to meet her basic 1 needs. Although Siddiqui was at times in pain and 2 medicated, she was coherent, lucid, and able to carry on a 3 conversation. 4 Special Agent Angela Sercer spent the most time with 5 Siddiqui. She would arrive in the morning and stay 6 approximately eight hours in Siddiqui’s room. Upon 7 arriving, she would ask Siddiqui if she wanted to talk; if 8 Siddiqui indicated she did not, Sercer would remain quietly 9 in the room as a member of Siddiqui’s security detail. 10 Although the topic of the July 18th shooting did come up, 11 Sercer’s primary objective was to gather intelligence 12 related to another investigation of Siddiqui commenced years 13 earlier. Siddiqui was generally receptive to speaking with 14 Sercer and indicated that she enjoyed their discussions. 15 Special Agent Bruce Kamerman spent significantly less time 16 with Siddiqui. Although he was not initially tasked with 17 interviewing Siddiqui, supervisors instructed Kamerman to 18 “continue the dialog” when Siddiqui made unsolicited 19 incriminating statements to him. Siddiqui never indicated 20 to Kamerman that she was unwilling to talk. Neither agent 21 gave Siddiqui Miranda warnings. 2233 Statements taken from a defendant in violation of 1 Miranda may not be introduced by the government during its 2 case in chief. United States v. Douglas , 525 F.3d 225, 248 3 (2d Cir. 2008). But because a defendant “must testify 4 truthfully or suffer the consequences,” the government may 5 introduce un-Mirandized statements to impeach the 6 defendant’s testimony. Id. (internal quotation marks 7 omitted). The government cannot, however, introduce a 8 defendant’s involuntary statements. See, e.g. , Mincey v. 9 Arizona , 437 U.S. 385, 397-98 (1978); see also United States 10 v. Khalil , 214 F.3d 111, 121-22 (2d Cir. 2000). Because 11 Siddiqui testified at trial, the government was free to 12 introduce the statements she made at Bagram Airfield so long 13 as those statements were voluntary. 14 The government bears the burden of demonstrating that 15 the defendant’s statements were voluntary. See United 16 States v. Capers , 627 F.3d 470, 479 (2d Cir. 2010); United 17 States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). To 18 determine whether a defendant’s statements were made 19 voluntarily, courts look to the totality of the 20 circumstances surrounding the statements. Anderson, 929 21 F.2d at 99. “Relevant factors . . . include the accused’s 2234 age, his lack of education or low intelligence, the failure 1 to give Miranda warnings, the length of detention, the 2 nature of the interrogation, and any use of physical 3 punishment.” Campaneria v. Reid , 891 F.2d 1014, 1020 (2d 4 Cir. 1989). A defendant’s mental vulnerability also bears 5 on the analysis. See Colorado v. Connelly, 479 U.S. 157, 6 164 (1986). 7 A number of decisions have assessed the voluntariness 8 of a defendant’s statements where the defendant was in 9 medical distress. For example, in Mincy, 437 U.S. at 398- 10 400, the Supreme Court held that a defendant’s statements to 11 police were involuntary where the defendant (1) arrived at 12 the hospital a few hours before the interrogation “depressed 13 almost to the point of coma”; (2) suffered “unbearable” 14 pain; (3) was unable to think coherently; (4) was 15 “encumbered by tubes, needles, and [a] breathing apparatus”; 16 (5) expressed his desire that the interrogation cease 17 numerous times to no avail; and (6) was falling in and out 18 of consciousness. By contrast, courts tend to view a 19 hospitalized defendant’s statements as voluntary where the 20 defendant was lucid and police conduct was not overbearing. 21 See Khalil , 214 F.3d at 121-22; Pagan v. Keane , 984 F.2d 61, 22 63 (2d Cir. 1993); Campaneria , 891 F.2d at 1019-20. 2335 We review the factual findings underpinning the 1 district court’s voluntariness determination for clear error 2 while subjecting the ultimate conclusion that a defendant’s 3 statements were voluntarily to de novo review. See Khalil , 4 214 F.3d at 122; see also United States v. Pettigrew, 468 5 F.3d 626, 633 (10th Cir. 2006); United States v. Bell , 367 6 F.3d 452, 460-61 (5th Cir. 2004). Doing so, we find no 7 error in the district court’s determination that Siddiqui’s 8 statements were voluntary. Although no Miranda warnings 9 were given and Siddiqui was kept in soft restraints for the 10 duration of her hospital stay, the agents’ conduct was not 11 overbearing or abusive. To the contrary, the agents 12 endeavored to meet her basic needs. Siddiqui conversed 13 freely with the agents, and when she indicated that she did 14 not want to engage in conversation, Special Agent Sercer sat 15 quietly in her room. Further, Siddiqui is highly educated, 16 having earned her undergraduate degree from Massachusetts 17 Institute of Technology and a doctorate from Brandeis 18 University. Most importantly, just as in Khalil , Pagan, and 19 Campaneria , Siddiqui was lucid and able to engage the agents 20 in coherent conversation despite the pain attendant to her 21 injury. 2236 Thus, the district court did not err in allowing the 1 government to introduce the statements Siddiqui made while 2 recuperating at Bagram Airfield to rebut her trial 3 testimony. 4 **E. Application of the Terrorism Enhancement to Siddiqui’s** 5 **Sentence** 6 7 Finally, we address Siddiqui’s challenge to the 8 district court’s application of the terrorism enhancement 9 under U.S.S.G. § 3A1.4. The enhancement increases by twelve 10 the defendant’s offense level and elevates the defendant’s 11 criminal history category to category six if the defendant’s 12 offense “is a felony that involved, or was intended to 13 promote, a federal crime of terrorism.” Id.A “federal 14 crime of terrorism” is an offense that “is calculated to 15 influence or affect the conduct of government by 16 intimidation or coercion, or to retaliate against government 17 conduct”; and is a violation of any one of a number of 18 enumerated statutes, including 18 U.S.C. §§ 1114 and 2332. 19 U.S.S.G. § 3A1.4 app. n. 1; 18 U.S.C. § 2332b(g)(5). 20 The district court found that Siddiqui’s offenses were 21 calculated to influence or affect government conduct and 22 that they were calculated to retaliate against government 23 conduct. As to the former, the court determined that 2437 Siddiqui’s offenses were “calculated to influence or affect 1 by intimidation the government’s fulfillment of its official 2 duties including, among other things, the interview team’s 3 efforts to interview . . . and . . . detain her.” JA 2848. 4 The court, pointing to statements Siddiqui made while in 5 Afghan custody, determined that Siddiqui began scheming to 6 avoid transfer to American custody on July 17, 2008, and 7 that the scheming came to fruition when Siddiqui gained 8 control of the Chief Warrant Officer’s rifle and fired at 9 the American interview team. 10 In support of the latter finding, the district court 11 highlighted testimony regarding various anti-American 12 statements Siddiqui made while in custody. In the court’s 13 estimation, these statements demonstrated Siddiqui’s intent 14 to retaliate against the United States government. 15 Siddiqui argues that the district court erred in applying 16 the enhancement. She claims that application of both the 17 terrorism enhancement and the Guidelines’ official victim 18 enhancement resulted in impermissible double counting. She 19 also contends that her conduct was not “calculated,” as 20 required by the plain language of the enhancement. 21 According to Siddiqui, long-term planning is a necessary 2238 condition to finding that a defendant’s offense was 1 “calculated.” 2 Siddiqui’s contention that the district court committed 3 error in applying both the official victim enhancement and 4 the terrorism enhancement is devoid of merit. “[A] district 5 court calculating a Guidelines sentence may apply multiple 6 [enhancements] based on the same underlying conduct,” 7 especially where “each of the multiple [enhancements] . . . 8 serves a distinct purpose or represents a discrete harm.” 9 United States v. Maloney, 406 F.3d 149, 152, 153 (2d Cir. 10 2005). The terrorism and official victim enhancements both 11 address discrete harms resulting from Siddiqui’s conduct–the 12 official victim enhancement “deals with the selection of 13 victims based on their status as government employees,” and 14 the terrorism enhancement addresses those acts that are 15 calculated to influence government conduct or to retaliate 16 against a government. In re Terrorism Bombings of U.S. 17 Embassies in East Africa , 552 F.3d 93, 153 (2d Cir. 2008). 18 Accordingly, application of both the terrorism and official 19 victim enhancements does not constitute impermissible double 20 counting. See id. 21 2239 Resolution of Siddiqui’s challenge to the district 1 court’s finding that her offense was “calculated” merits 2 more discussion. As previously noted, for the terrorism 3 enhancement to apply, the defendant’s offense must be 4

“calculatedto influence or affect the conduct of government 5 by intimidation or coercion, or to retaliate against 6 government conduct.” 18 U.S.C. § 2332b(g)(5)(A) (emphasis 7 added). When we interpret the Guidelines, we “giv[e] the 8 words used their common meaning.” United States v. Stewart , 9 590 F.3d 93, 137 (2d Cir. 2009). “Calculated” means 10 “planned–for whatever reason or motive–to achieve the stated 11 object.” Awan, 607 F.3d at 317; see Stewart , 590 F.3d at 12 137 (“The conventional meaning of ‘calculated’ is ‘devised 13 with forethought.’”). 14 Many courts (including this one) interpret “calculated” 15 as nearly synonymous with intentional. See Stewart , 590 16 F.3d at 137; see also United States v. Chandia , 675 F.3d 17 329, 333 n.3 (4th Cir. 2012); United States v. El-Mezain , 18 664 F.3d 467, 571 (5th Cir. 2011);United States v. 19 Jayyousi , 657 F.3d 1085, 1115 (11th Cir. 2011). Thus, “if a 20 defendant’s purposein committing an offense is to 21 ‘influence or affect the conduct of government by 2240 intimidation or coercion, or to retaliate against government 1 conduct,’” application of the terrorism enhancement is 2 warranted. See Stewart , 590 F.3d at 137 (emphasis added) 3 (quoting 18 U.S.C. § 2332b(g)(5)(A)). Where, however, 4 “there is no evidence that the defendant sought to influence 5 or affect the conduct of the government,” the enhancement is 6 inapplicable. Id. (internal quotation marks omitted). 7 Most cases applying the terrorism enhancement have 8 involved conduct that spanned a significantly greater length 9 of time than the conduct here. See, e.g. , Awan, 607 F.3d at 10 310-11; United States v. Salim, 549 F.3d 67, 70-71 (2d Cir. 11 2008); In re Terrorist Bombings , 552 F.3d at 103-05 (2d Cir. 12 2008); United States v. Meskini , 319 F.3d 88, 90-91 (2d Cir. 13 2003). Relying on this observation, Siddiqui argues that 14 “calculation,” as used in the enhancement, incorporates a 15 long-term planning requirement. We disagree. That long16 term planning is present in many of the cases applying the 17 terrorism enhancement does not make it a condition necessary 18 to finding that a defendant’s offense was calculated to 19 influence government conduct or to retaliate against a 20 government. Instead, the terrorism enhancement is 21 applicable where a defendant acts according to a 2214We decline Siddiqui’s invitation to apply a searching de novoreview here. Because the district court’s finding on this score is factual, clear error review is appropriate. See Salim, 549 F.3d at 79; see also El-Mezain , 664 F.3d at 571. 41 plan–whether developed over a long period of time or 1 developed in a span of seconds–with the object of 2 influencing government conduct or retaliating against a 3 government. 4 The day before the shooting incident here, Siddiqui 5 repeatedly implored Afghan police officials not to turn her 6 over to American forces. Siddiqui gained control of an M-4 7 rifle and fired on the American interview team attempting to 8 take her into United States custody the following day. 9 Under these circumstances, the district court did not 10 clearly err14in its determination that Siddiqui’s offense 11 was calculated to influence government conduct–i.e, the 12 United States’ attempts to take Siddiqui into custody–by 13 intimidation or coercion. 14 We also find that the district court did not clearly 15 err in determining that Siddiqui’s offense was calculated to 16 retaliate against the United States. While in Afghan 17 custody prior to the shooting incident, Siddiqui referred to 18 the United States as invaders, and when queried about the 19 bomb-making documents found in her possession, Siddiqui 2042 indicated that the target of those bombs were “the 1 foreigners.” See JA 3022. What’s more, shortly after 2 firing on the American interview team, Siddiqui stated: “I 3 am going to kill all you Americans. You are going to die by 4 my blood”; “death to America”; and “I will kill all you 5 motherfuckers.” Taken as a whole, this evidence provides a 6 sufficient factual basis for the district court’s conclusion 7 that Siddiqui’s offense was calculated to retaliate against 8 the United States. 9 Accordingly, the district court did not err in applying 10 the terrorism enhancement. 11

**III. CONCLUSION** 12 For the foregoing reasons, and for the reasons provided 13 in the accompanying summary order, Siddiqui’s convictions 14 and sentence are hereby affirmed. 15