Ayyad v. United States

Background

Nidal Ayyad and Mohammad Salameh were convicted of multiple felony counts connected to the 1993 World Trade Center bombing. The relevant convictions included two counts under 18 U.S.C. § 924(c): Count Nine, based on assaulting a federal official under 18 U.S.C. § 111, and Count Ten, based on conspiracy to destroy buildings under 18 U.S.C. § 371. At resentencing, Ayyad received 1,405 months of imprisonment and Salameh received 1,403 months.

In June 2016, the movants filed nearly identical self-represented motions under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a conviction or sentence in the sentencing court. They challenged their Count Nine and Count Ten convictions based on later decisions concerning the definition of a “crime of violence” under § 924(c). The court stayed the motions while those legal issues were being resolved. Their later filing, submitted by appointed counsel, raised an additional argument concerning the jury instructions.

Arguments and analysis

The movants argued that the jury instructions permitted conviction on Count Eight under the Pinkerton theory of liability. Under that theory, a conspirator may be held responsible for a co-conspirator’s reasonably foreseeable act. They argued that the instructions therefore may have allowed the jury to convict them without finding that they personally assaulted a federal officer. If so, they contended, Count Eight would effectively be a conspiracy offense and would not qualify as the violent-crime predicate required for Count Nine.

The government argued that the movants had waived or procedurally defaulted this argument by failing to raise it on direct appeal. The court nevertheless considered the argument. It concluded that the circumstances surrounding the appointment of the Federal Defenders of New York and the supplemental briefing justified considering the claim. The court also determined that the movants had shown cause and prejudice sufficient to avoid a procedural bar.

On the merits, the court rejected the Pinkerton argument. It held that the instruction did not transform the convictions for assaulting a federal official into convictions for conspiracy to assault a federal official. The movants could have been convicted of the substantive assault in either of two ways: because they themselves committed the assault, or because they were members of the conspiracy and the assault was reasonably foreseeable. The court concluded that they were convicted on Count Eight of substantive assault on a federal officer. The Pinkerton instruction therefore did not implicate the unconstitutional residual clause of § 924(c)(3)(B), and Count Eight remained a valid predicate for Count Nine under the statute’s elements clause.

Disposition

The court noted that, in light of the later decisions, the government consented to vacating the Count Ten convictions. The court therefore granted the motions to vacate as to Count Ten and denied them in all other respects. It ordered amended judgments reflecting that ruling. The court also denied a certificate of appealability and concluded that any appeal from the order would not be taken in good faith under 28 U.S.C. § 1915(a)(3).