Abouhalima v. United States

Background

Mahmud Abouhalima was convicted of multiple felony counts connected to the 1993 World Trade Center bombing. The opinion focuses on two convictions under 18 U.S.C. § 924(c), identified as Counts Nine and Ten. Those convictions carried consecutive 30-year prison terms.

Count Nine was based on assaulting a federal official under 18 U.S.C. § 111, charged in Count Eight. Count Ten was based on conspiracy to destroy buildings under 18 U.S.C. § 371. Abouhalima filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. The Second Circuit authorized him to file a second such motion challenging Counts Nine and Ten.

Legal issues and analysis

Abouhalima argued that the offenses supporting Counts Nine and Ten were not “crimes of violence” under § 924(c). The statute’s “elements clause” defines a crime of violence as a felony that includes the use, attempted use, or threatened use of physical force against another person or property. Its separate “residual clause,” which covered offenses involving a substantial risk that force might be used, was held unconstitutionally vague by the Supreme Court in United States v. Davis. The opinion also discusses Johnson v. United States and the Second Circuit’s decision in United States v. Barrett.

For Count Nine, Abouhalima argued that § 111 can be violated by intimidating a federal officer and therefore could not qualify under the elements clause. The court rejected that argument. Relying on its prior ruling concerning the same Count Nine predicate offense, the court held that the charged assault offense was a crime of violence under the elements clause and remained a valid predicate for Count Nine.

Abouhalima also argued that jury instructions allowing conviction under a “Pinkerton” theory meant the jury could have convicted him based only on his membership in the conspiracy and a reasonably foreseeable assault by another conspirator. The court found that this argument was not procedurally barred because later legal developments supplied cause for not raising it earlier. The court nevertheless rejected the argument on the merits, holding that the instruction did not turn the substantive assault conviction into a conspiracy conviction. The court concluded that Abouhalima was convicted of substantive assault on a federal official, not conspiracy to commit that assault.

For Count Ten, the government agreed to vacatur in light of Davis and Barrett.

Disposition

The court granted Abouhalima’s motion to vacate his conviction as to Count Ten and denied the motion as to Count Nine. It ordered an amended judgment reflecting that ruling. Judge Lewis A. Kaplan also denied a certificate of appealability and concluded that any appeal would not be taken in good faith under 28 U.S.C. § 1915(a)(3).