Ajaj v. United States

Background

Ahmad Mohammed Ajaj was convicted of several felony offenses connected to the 1993 World Trade Center bombing. The convictions included two counts under 18 U.S.C. § 924(c), which imposes additional consecutive sentences when a firearm or destructive device is used or carried in connection with a crime of violence. Count 9 was based on assaulting a federal official under 18 U.S.C. § 111, charged in Count 8. Count 10 was based on conspiracy to destroy buildings under 18 U.S.C. § 371.

At an earlier resentencing, Ajaj received concurrent sentences totaling 658 months on Counts 1 through 6 and Count 8, plus two consecutive 30-year sentences on Counts 9 and 10. The total sentence was 1,378 months.

Ajaj filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. He argued that the offenses supporting Counts 9 and 10 were not crimes of violence under the Supreme Court’s decision in Johnson v. United States. After later decisions invalidated part of the definition of “crime of violence,” the court vacated Count 10. It concluded, however, that Count 8 qualified as a crime of violence because the charged offense under § 111(b) required the use of a deadly or dangerous device.

Late filing and procedural issues

The court accepted Ajaj’s late reply brief because he stated that he had been isolated in a hospital when the filing was due, and the brief was mailed six days late. The court noted that some arguments in the reply had not been raised on direct appeal or in the original § 2255 motion. Those arguments generally faced procedural default or waiver, meaning that procedural rules could prevent the court from considering them. The court nevertheless addressed the Pinkerton argument on the merits.

Count 9 and the Pinkerton argument

Ajaj argued that the trial court’s instruction allowing a conviction under a Pinkerton theory invalidated Count 9. A Pinkerton theory allows a defendant to be held responsible for certain substantive crimes committed by a conspirator when those crimes were within the conspiracy’s scope and reasonably foreseeable. The court rejected the argument, explaining that a conviction based on a Pinkerton theory is a conviction for the substantive offense, not a conviction for conspiracy. Count 8 therefore remained a valid predicate offense for Count 9.

Jury-instruction arguments

Ajaj argued that the jury instructions were improper under Rosemond v. United States and Elonis v. United States. The court held that the Rosemond challenge was procedurally defaulted because it had not been raised on direct appeal, and likely waived because it was not included in the original § 2255 motion. The court also held that the arguments would fail on the merits.

Rosemond requires proof that a defendant knew in advance that an aided crime would involve a firearm. The court found the instruction sufficient because it required the jury to find that the defendant intended in advance that the crime would involve the use or carrying of destructive devices. The court also concluded that Elonis did not make the instruction erroneous. Even assuming Elonis’s reasoning applied to § 924(c), the court stated that circumstantial evidence could be used to infer the defendant’s subjective intent.

Sufficiency of the evidence

Ajaj argued that the evidence was insufficient to support his conviction under a Pinkerton theory, particularly because he had been incarcerated for six months before the bombing. The court held that this issue had already been raised and rejected on direct appeal, so § 2255 could not be used to relitigate it.

Supplemental brief and reconsideration

In a supplemental brief, Ajaj argued under the categorical approach—a method that examines the legal elements of an offense rather than the particular facts of the defendant’s conduct—that the § 111 offense was not a crime of violence. The court treated this filing as a motion for reconsideration because it challenged the court’s earlier conclusion that Count 8 was charged under § 111(b), not § 111(a).

The court denied reconsideration. It stated that reconsideration generally requires identifying controlling law or information the court overlooked that could change its decision. The court concluded that its earlier decision had already used the categorical approach and that the modified categorical approach discussed by the government only helps apply that approach when a statute lists alternative offenses.

Resentencing and disposition

The court declined to order a full resentencing after Count 10 was vacated. It had previously denied a co-defendant’s request for full resentencing and found Ajaj similarly situated. The court concluded that a full resentencing was not required and would serve no practical purpose.

The court granted Ajaj’s § 2255 motion to the extent that Count 10 was vacated and denied the motion in all other respects. It ordered an amended judgment reducing the aggregate sentence from 1,378 months to 1,018 months. The court also denied a certificate of appealability and certified that any appeal would not be taken in good faith.