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Khan v. United States

United States District Court, E.D. Virginia, Alexandria Division

August 1, 2018

MASOUD AHMAD KHAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema, United States District Judge.

         Before the Court is Masoud Ahmad Khan's ("movant" or "Khan") Motion to Vacate Under 28 U.S.C. § 2255 [Dkt. No. 849]. For the reasons that follow, the motion will be granted.

         I. BACKGROUND

         A. Factual Background

         On June 25, 2003, a grand jury in the Eastern District of Virginia returned an indictment [Dkt. No. 1] charging Khan and ten other defendants with a number of offenses, all arising out of their preparations for violent jihad overseas and, with respect to some defendants including Khan, their travel to Pakistan to train with Laskhar-e-Taiba ("LET"), a militant group that was, at the time, "primarily focused on defeating India's influence in Kashmir," United States v. Khan. 309 F.Supp.2d 789, 807 (E.D. Va. 2004), aff'd in part, remanded for sentencing. 461 F.3d 477 (4th Cir. 2006). In August and September 2003, four of the co-defendants pleaded guilty and, on September 25, 2003, a grand jury returned a 32-count superseding indictment [Dkt. No. 167] charging Khan and the remaining six co-defendants with various offenses. After the superseding indictment was returned, two of the co-defendants pleaded guilty and the counts against a third co-defendant were severed for trial. The remaining four defendants, including Khan, proceeded to trial.

         After a nine-day bench trial, the Court issued its findings of fact and conclusions of law. In brief, [1] the evidence introduced at trial established that the co-conspirators, all of whom are Muslim, met each other at different times in the late 1990s in Northern Virginia and many of their initial interactions occurred at the Dar al-Arqam Center ("Center") in Falls Church, Virginia. Khan, 309 F.Supp.2d at 803. In January 2000, some men connected with the Center came up with the idea of creating a paintball group to "prepare for physical jihad in the sense of physical preparation for possible combat," particularly related to the then-ongoing war in Chechnya. Id. Based on the evidence introduced at trial, the Court concluded that these paintball games were "viewed as not just an opportunity for outdoor exercise, fellowship, and an opportunity to improve self-defense skills, but also as preparation for real combat." Id.[2] Both before and after the formation of the paintball group, various co-conspirators visited Pakistan to participate in LET training camps, and the group often discussed these experiences with each other.

         After the September 11, 2001 attacks on the World Trade Center and the Pentagon, one of Khan's co-conspirators organized a meeting at the behest of Ali Al-Timimi ("Al-Timimi") "to address how Muslims could protect themselves" and "invited only those brothers who had participated in paintball training and owned weapons." Id. at 809. Despite Khan's lack of involvement with the paintball games, he was invited to and attended this meeting, which occurred on September 16, 2001. Id. At the beginning of the meeting, Al-Timimi told the attendees that "the gathering was an 'amana,' meaning that it was a trust that should be kept secret," and the group drew the window blinds and disconnected the phones from the wall. Id. at 809-10. At the meeting, Al-Timimi argued "that the September 11 attacks were justified and that the end of time battle had begun," and he urged the attendees to leave the United States and, preferably, "heed the call of Mullah Omar, leader of the Taliban, to participate in the defense of Muslims in Afghanistan and fight against United States troops that were expected to invade in pursuit of Al-Qaeda." Id. at 810. Another attendee, Randall Todd Royer ("Royer"), who had previously trained with LET and fired live rounds on the front lines in Kashmir, told the group that "anyone who wanted to fight in Afghanistan would first need to participate in military training, that the LET camps in Pakistan were a good place to receive that training, and that Royer could facilitate their entry to the LET camps." Id. at 808, 810. After this meeting, Khan and three co-conspirators agreed to travel to the LET camps for training. Id. at 810.

         In preparation for their planned trip to Pakistan, Khan and his co-conspirators bought plane tickets and necessary supplies, and Royer phoned his contact in LET to provide aliases and descriptions for the men. Id. In addition, the conspirators discussed cover stories for their travel to ensure that they would not be stopped on their way to Pakistan. Id. at 810-11. After their arrivals in Karachi, Khan and his co-conspirators went to the LET office in Lahore and spent time at the LET camp together, where Khan fired an AK-47 rifle, an anti-aircraft gun, and a rocket-propelled grenade at targets, which was a part of the training plan. Id. While at the LET camp, Khan learned that Pakistan had closed its border with Afghanistan, that LET would not facilitate his travel to Afghanistan to fight with the Taliban, and that Pakistani authorities were working to remove foreigners from the training camps. Id. As a result, LET required Khan to leave, which he did in December 2001; however, before leaving the camp, he was approached by two men who requested that he "return to the United States, gather information, and spread propaganda." Id.

         After Khan's return to the United States, he maintained contact with LET. Specifically, Khan helped connect one of his co-conspirators, who had overstayed his visa in Pakistan, with a man known as "Abu Khalid" or "Pal Singh," who the Court found "plays a major role in LET operations." Id. at 812-14. In addition, Khan bought an airplane control module, which is a computer "that can be programmed to fly an airplane with a 10-12 foot wingspan," at Singh's request and transferred both the module and a compatible wireless video system that a co-conspirator had purchased to Singh. Id.

         Based on all of the evidence presented at trial, the Court found Khan guilty of Count 1 (conspiracy in violation of 18 U.S.C. § 371), Count 2 (conspiracy to levy war against the United States in violation of 18 U.S.C. § 2384), Count 4 (conspiracy to contribute services to the Taliban in violation of 50 U.S.C. § 1705), Count 5 (conspiracy to contribute material support to LET in violation of 18 U.S.C. § 2339A), Count 11 (conspiracy to possess and use firearms in connection with a crime of violence in violation of 18 U.S.C. § 924(o)), and Counts 24, 25, and 27 (use and possession of firearms in connection with a crime of violence in violation of 18 U.S.C. § 924(c)). With respect to each of the other counts against Khan, the Court either found him not guilty or the count was dismissed on his motion for judgment of acquittal under Fed. R. Crim. P. 29. As is relevant to the present motion, the Court found that conspiracy to provide material support to LET, conspiracy to supply services to the Taliban, and conspiracy to levy war against the United States were all crimes of violence sufficient to act as predicate offenses to support Counts 11, 24, 25, and 27. Id. at 823, 826-27. In addition, the Court found that the specific firearms-related conduct underlying these offenses involved Khan's possessing and facilitating the acquisition by co-conspirators of various firearms (Count 11) and discharging an AK-47 rifle (Count 24), a 12 mm anti-aircraft gun (Count 25), and a rocket-propelled grenade (Count 27) during his trip to the LET camp. Id.

         On July 29, 2005, Khan was sentenced[3] to a total of life imprisonment. [Dkt. No. 602]. This sentence consisted of concurrent sentences of 60 months on Count 1 and 120 months on each of Counts 2, 4, 5, and 11, as well as consecutive sentences of 120 months on Count 24, 300 months on Count 25, and life imprisonment on Count 27. His convictions and sentence were affirmed on appeal, and the Supreme Court denied his petition for a writ of certiorari. Khan, 461 F.3d 477, cert, denied. 550 U.S. 956 (2007).

         On November 3, 2008, Khan filed a motion to vacate under 28 U.S.C. § 2255 [Dkt. No. 694], which raised a variety of challenges to his convictions and sentence. On May 12, 2011, the Court issued a Memorandum Opinion and Order granting in part and denying in part Khan's motion and vacating Count 1 because it was a lesser included offense of the Count 2 conspiracy. [Dkt. Nos. 742 & 743]. Khan's appeal of the Court's decision was dismissed. United States v. Khan., 451 Fed.Appx. 262 (4th Cir. 2011) (percuriam).

         On June 9, 2016, after receiving the appropriate authorization from the Fourth Circuit to file a second or successive 28 U.S.C. § 2255 motion [Dkt. No. 848], Khan filed the present Motion to Vacate, in which he argues that his convictions under §§ 924(c) and 924(o) should be vacated because the definition of crime of violence on which they relied is unconstitutionally vague in light of Johnson v. United States., 135 S.Ct. 2551 (2015). On December 21, 2016, the Court stayed the Motion to Vacate pending the Supreme Court's decision in Sessions v. Dimaya., 138 S.Ct. 1204 (2018). [Dkt. No. 876]. On April 17, 2018, the Supreme Court released its decision in Dimaya and, two days later, the Court unstayed the Motion to Vacate and set a briefing schedule. [Dkt. No. 883]. The Motion to Vacate has now been fully briefed and the Court finds that oral argument would not aid the decisional process.

         B. Legal Background

         Under 18 U.S.C. § 924(c):

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime- (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A). Section 924(c) also provides a definition of the term "crime of violence" for purposes of that section:

[T]he term "crime of violence" means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). The two prongs of this definition are commonly referred to as the "force clause" and the "residual clause" respectively. This provision is not the only place in the United States code where a similar definition appears. Using nearly identical language, 18 U.S.C. § 16 provides:

         The term "crime of violence" means-

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16.[4] Similarly, 18 U.S.C. § 924(e)[5] defines the term "violent felony" as

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential ...

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