Recently, the Second Circuit upheld the conviction and 40-year sentence of a Hezbollah operative. In United States v. Kourani, No. 19-cr-4292 (Cabranes, Kearse, Pooler), the Court rejected the defendant’s various arguments that he received ineffective assistance of counsel, that the district court erred by not providing his requested jury instructions, that there was insufficient evidence to sustain his conviction, and over a dissent from Judge Pooler, held that a 40-year sentence was not substantively unreasonable. Significantly, the Court also rejected the defendant’s argument that a confession to FBI agents, made in the presence of his attorney, was coerced.
Background
Defendant Ali Kourani, a Hezbollah operative who had received military training from the Lebanon-based terrorist organization, entered the United States in 2003 on an immigrant visa. He disclaimed connections to any terrorist organizations on his application, and received permanent resident status. In 2008, he joined the Islamic Jihad Organization (IJO), a division of Hezbollah that focuses on operations outside of Lebanon, and received further training from the organization. While taking steps to develop a cover identity for himself in the United States, including by obtaining various educational degrees, Kourani continued to gather intelligence for IJO. He also applied for, and was granted, U.S. citizenship. Kourani was naturalized in 2009. From 2008 through 2015, he continued to work as a sleeper agent: he gathered intelligence on development of explosives, tactical weapons, and resisting interrogation. He also surveilled various locations that could be sites for attacks, including airports, federal buildings, and businesses operated by Israeli citizens.
The FBI took note of Kourani’s activities. Over a series of meetings, FBI agents offered him the opportunity to work for the United States instead. Kourani rejected these overtures and denied any membership in Hezbollah. In a subsequent meeting in 2016 with FBI agents at the U.S. Embassy in Beirut (which Kourani visited to seek assistance in an unrelated family dispute), he again denied being a member of Hezbollah and rejected offers of cooperation.
In March 2017, Kourani’s attorney, a professor at Seton Hall Law School, contacted the FBI. Over a series of meetings in March and April 2017 between Kourani, his attorney, and FBI agents—all of which took place in a Seton Hall conference room—Kourani admitted to many of his activities on behalf of the IJO and admitted to lying in previous meetings with FBI agents. The agents ultimately terminated the final interview because they believed that Kourani was not being forthcoming about his involvement with Hezbollah. Kourani was soon thereafter arrested and charged with eight terrorism-related offenses. A jury convicted him on all eight offenses, and the district court sentenced him to 40 years imprisonment.
Kourani appealed his conviction and sentence on five grounds: (1) that the District Court’s denial of his motion to suppress his confessions during the 2017 interviews with FBI agents; (2) that the district court failed to remedy the purported ineffective assistance provided by his counsel; (3) that the district court failed to provide his requested jury instructions; (4) that there was insufficient evidence underpinning his conviction; and (5) that his 40-year sentence was unreasonable.
Second Circuit Finds No Forced Confession
Kourani asked the Second Circuit to find that the district court erred in admitting evidence of his admissions to FBI agents. He claimed he and his attorney believed he was speaking with the FBI on a condition of confidentiality, and that the FBI, by failing to object to a memorandum prepared by Kourani’s attorney, had promised immunity. The Second Circuit disagreed.
As the Second Circuit noted, an incriminating statement made in a non-custodial setting is inadmissible only if it was “not made voluntarily—that is, if the defendant’s will was overborne.” To determine whether a statement was made involuntarily, courts look at “(1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials.”
The Second Circuit found that Kourani’s statements were made voluntarily: at the time he made the admissions, he was an adult with a professional degree. He had already spoken with FBI agents and had declined to cooperate with them, so he knew how to decline agents’ requests. And the interviews took place in a conference room at Seton Hall University, where Kourani’s lawyer was a law professor—and he was interviewed in the presence of that attorney. Moreover, “during the interviews, Kourani also took frequent breaks to consult privately with [his attorney], and Kourani exercised his right to decline to answer certain questions from the agents.”
The panel also found that the conduct of the agents was not coercive: the interviews took place on Kourani’s turf, not in FBI offices; the agents were in business-casual attire; and they did not display firearms. To the extent they failed to object to Kourani’s attorney’s memorandum—which contained statements that Kourani “has committed no crime and faces no prosecution” and even that Kourani was “not seeking any kind of immunity of protection”—their lack of objection did not, in the panel’s view, suggest that they agreed with these statements.
Significantly, the Court also faulted Kourani and his attorney for not realizing that “FBI agents lack[] the authority to promise immunity” and noted that even if the agents had made some sort of promise of immunity, that would not necessarily render the statements involuntary since “the presence of a direct or implied promise of help or leniency has not barred the admission of a confession where the totality of the circumstances indicates that it was the product of a free and independent decision.”
The Second Circuit’s decision to affirm the denial of Kourani’s motion to suppress has striking implications: first, it demonstrates the high bar for suppressing confessions made in non-custodial settings, especially by educated or sophisticated individuals. If the witness is free to leave the interview, it is very likely that the statements made by the witness will be admissible. Nor would an interview like this one—at a lawyer’s office or in the witness’ home or workplace—require the administration of Miranda warnings, which are only required for questioning of those in police custody. And second, it serves as a cautionary tale for those involved in government investigations who may not fully understand the parameters of the agreements—implicit or explicit—that govern interviews with government agents. In general, it is a safe bet to say that unless there is a signed proffer agreement with the prosecutor that provides express limitations on how the witness’s statement can be used in the future, the witness (and their attorney) is in potentially dangerous territory.
Reasonableness of the Sentence and Judge Pooler’s Dissent
While the panel agreed in rejecting Kourani’s ineffective assistance of counsel claim (because his right to counsel had not yet attached at the time of the FBI interviews), jury instruction claim (because he asked for an instructions that “we have never held . . . a district court is required to issue”) and sufficiently of the evidence claim (because the Circuit found there was sufficient evidence), the panel issued a divided opinion as to the reasonableness of Kourani’s 40-year sentence.
Kourani challenged his sentence as procedurally and substantively unreasonable on the ground that the district court violated 18 U.S.C. § 3553(a)(6), the statute that directs courts to avoid sentencing disparities, and that it was based on erroneous factual findings. Kourani pointed to cases in which defendants received sentences of 15-20 years of imprisonment and argued that his 40-year sentence was unfairly excessive. Judges Cabranes and Kearse disagreed, noting that the district court had recognized significant factual distinctions between Kourani’s case and those he cited. Moreover, they found that the evidence supporting Kourani’s conviction was strong enough to conclude that the district court had not erred in issuing the sentence it did. Finally, they noted that the sentence fell within the guidelines range—and fell short of the maximum permissible sentence of 110 years for which the government advocated—so they could not find that it was not within the range of permissible decisions.
Judge Pooler disagreed. She called the sentence “disproportionate,” and “decline[d] to affirm a sentence that effectively requires Kourani to spend the rest of his adult life in prison, especially when Kourani’s actions have not directly injured anyone.” In essence, Judge Pooler took issue with the terrorism statutes themselves, citing a decision from Judge Calabresi that criticized the “undeniably broad” terrorism enhancements that could have “dramatic consequences on the applicable Guidelines range,” and a law review article that called them “often disproportionate to the conduct of conviction.” While Judge Pooler noted that Kourani’s trial was fair and he was undeniably adjudicated guilty, she pointed out that “Kourani’s actions could have culminated in far more injurious results.” This opinion clearly signals Judge Pooler’s views on terrorism enhancement statutes and no doubt serves as a warning—or blessing—for practitioners who may appear before her regarding such statutes.
No one could say that what the defendant did here is justified or in any way acceptable. We are all fortunate that Hizbollah’s work was disrupted. The majority panel said that the sentence was within the range of what the Sentencing Guidelines and Congress contemplated for this crime, and noted that the district court could have imposed (through the use of consecutive sentencing on individual counts) a sentence of 110 years’ imprisonment. At the same time, Judge Pooler raises a fair question about whether the sentence would be less of a deterrent, or an inadequate punishment, if it was 25 or 30 years of imprisonment rather than the 40-year sentence actually imposed. If the answer is that both sentences would equally fit the crime, then the parsimony clause of Section 3553(a) calls for the imposition of the shorter sentence. See 18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [section 3553(a) (2).]”). In other words, the question is whether there is some benefit to the system served by the tacking on of the last 5 or 10 years of the 40-year sentence. Defense counsel should continue to ask this question to sentencing and appellate judges whenever their clients are confronted with a lengthy sentence such as the one imposed here.
