CRIMINAL LAW - TERRORISM AND TWITTER: THE APPLICATION OF TERRORISM SENTENCING ENHANCEMENTS TO THE CREATION OF SOCIAL MEDIA ACCOUNTS - UNITED STATES V. AMER SINAN ALHAGGAGI.

• Author: Barth, Eric

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Many offenses constitute federal crimes of terrorism, including a violation of 18 U.S.C. [section] 2339b (material support statute) which criminalizes providing a known foreign terrorist organization with "material support or resources."

(1) In order to combat terrorism, the federal government enacted "terrorism enhancements" which gives courts the power to increase the [*402] sentence of an individual convicted of a federal crime of terrorism. (2) In United

States v. Amer Sinan Alhaggagi, (3) the Ninth Circuit Court of Appeals (Ninth Circuit) addressed the requisite intent for terrorism enhancements to apply. (4) The Ninth Circuit [*403] narrowed the scope of the terrorism enhancement by reversing the lower court's decision, holding that the enhancement should not apply to the act of creating a social media account for supporters of the terrorist group ISIS. (5)

[*404] Defendant Amer Sinan Alhaggagi (Alhaggagi) grew up in a Muslim family with his mother in Yemen and his father in California until 2009 when the family began to permanently reside together in California. (6) Seven years later, when Alhaggagi was 21, he began frequenting online Islamic chatrooms and message boards - some of which were popular among members of the terrorist group ISIS - where he would create false personas and start fights with other individuals. (7) In one such chatroom, he discussed weapons sales and attacks he claimed to be planning and creating and using fake credit cards to commit identity fraud with an individual who was a "confidential human source" (CHS) for the FBI. (8) The FBI began surveilling Alhaggagi, and [*405] they had the CHS set him up for a meeting with an undercover agent (UCA). (9) Alhaggagi met with the UCA multiple times and discussed bomb-making and planning attacks against non-Muslims. (10) After a few months,

Alhaggagi stopped meeting with the UCA when he realized that he had gotten himself in a dangerous situation via his persona. (11)

Alhaggagi was later arrested in November of 2016 for identity theft, and upon a search of his home and electronic devices, the FBI discovered that he had been creating social media and email accounts for supporters of ISIS. (12) Amaq, ISIS's propaganda [*406] organization, used some of these accounts to report attacks in Iraq, such as the destruction of vehicles and the death of soldiers. (13) Also found in the search of Alhaggagi's devices were searches and messages regarding bomb-making and ISIS training instructions. (14) Alhaggagi was charged with and pled guilty to "attempting to provide material support to a designated foreign terrorist organization,... possessing device-making equipment,... using an unauthorized access device,... and aggravated identity theft." (15) Providing material support to a [*407] designated foreign terrorist organization is an offense to which the terrorism enhancement may apply, so the United States District Court for the Northern District of California (lower court) looked to determine if its application would be proper. (16)

At Alhaggagi's sentencing, the lower court analyzed the definition of a federal crime of terrorism. (17) It held that Alhaggagi's [*408] actions met its qualifications, reasoning that he was familiar with ISIS and knew that they used force via attacks to affect and retaliate against government conduct, so by providing them with social media accounts, he intended to aid them in those efforts. (18) By finding that the creation of these accounts for ISIS supporters constituted a federal crime of terrorism, the lower court held that the terrorism enhancement was applicable and sentenced him to 188 months in prison. (19) This sentence decision [*409] was a significant increase from the 46-57 month suggestion made by Alhaggagi's probation officer, who did not believe the enhancement should have been applied at all. (20) Alhaggagi later appealed the decision, and the Ninth Circuit overturned it, holding that it was not sufficiently demonstrated that Alhaggagi possessed the requisite intent for the enhancement to be applied, so the lower court erred in its sentencing decisions. (21)

In 1984, Congress passed the Sentencing Reform Act, forming the United States Sentencing Commission (the commission), which was tasked with creating sentencing guidelines based on the offense level of a crime and a defendant's criminal history background. (22) The goal of creating these sentencing guidelines [*410] was to

"reduce sentencing disparities and promote transparency and proportionality in sentencing." (23) While the guidelines were initially intended to be mandatory, they tend to be non-binding in practice. (24) Included in the guidelines is the terrorism enhancement, [*411] which increases the offense level and criminal history category of a defendant found guilty of a federal crime of terrorism. (25) Because the guidelines are not mandatory, judges do not always adhere to the recommended guideline sentences for an offense that the terrorism enhancement applies to. (26)

[*412] While there is a list of offenses that may amount to federal crimes of terrorism, and thus subject the offender to the terrorism enhancement, they do not automatically constitute such an offense. (27) Since the creation of the commission, courts have had to interpret the intent required for a federal crime of terrorism as there are a plethora of crimes that can amount to a federal [*413] crime of terrorism. (28) Offenses covering the provision of material support to terrorist organizations have been in the forefront of this discussion. (29) Ultimately, the courts have determined that [*414] the intent required to be found guilty of an underlying felony is distinct from the intent required to commit a federal crime of terrorism because not all felonies are calculated to affect or retaliate against government conduct. (30)

[*415] In the wake of the September 11th terrorist attacks, United States lawmakers drafted and altered laws such as the material support statute in efforts to strictly combat foreign terrorism. (31) The United States has used 18

U.S.C. [section] 2339B in response to attempts of foreign terrorist organizations to recruit and gain [*416] support from people overseas, much of which occurs online. (32) Because the material support statute is broad and a violation of it can amount to a federal crime of terrorism, the United States has used it to obtain convictions for anyone engaging with organizations overseas to further its War on Terror. (33) The terrorism

[*417] enhancement, along with the material support statute, have also become a source of controversy as they have allowed for both the prosecution of individuals with little to no relation to actual terrorist attacks and the increase of sentences by more than a decade. (34)

[*418] In United States v. Amer Sinan Alhaggagi, the Ninth Circuit overturned the lower court's decision, finding that although Alhaggagi had the requisite intent to violate the material support statute by creating social media accounts for ISIS supporters, the terrorism enhancement should not have been applied. (35) The majority looked at the specific act of creating the social media accounts, and held that it was far too attenuated from the actual terroristic acts of ISIS to conclude that Alhaggagi intended to "influence[ ] government conduct by intimidation or coercion." (36) [*419] The majority differentiated the case at hand from other scenarios in which the terrorism enhancement had been applied to actual attacks that were conducted partly as a result of provided material support. (37) Further, the majority found no indication that Alhaggagi had any specific intent to retaliate against government conduct, so his actions did not rise to a federal crime of terrorism. (38) Justice Hurwitz disagreed with the majority [*420] and supported the lower court's decision in his dissent. (39) He noted that Alhaggagi was aware of the motivations of ISIS and had planned attacks against American citizens in support of the messages of ISIS, so therefore Alhaggagi had the requisite intent to affect government conduct through intimidation or coercion, or retaliate against it through his actions.

In its decision, the Ninth Circuit departed from the strict zero-tolerance stance the government set forth in its post-9/11 War on Terror. (40) While many courts across the country have [*421] gone to extreme lengths to secure lengthy prison sentences for anyone connected to terrorism, the Ninth Circuit did not find that the terrorism enhancement should have factored into Alhaggagi's sentencing. (41) Still, the court remained consistent in differentiating the intent requirement for felonies, such as the material support statute, from that of a federal crime of terrorism. (42) In doing so, the court effectively narrowed the scope of [*422] the intent required for the terrorism enhancement to apply. (43) The court accomplished this by considering whether an individual demonstrates an intent to "influence" or "retaliate against government conduct" through a material support statute violation itself. (44)

[*423] The Ninth Circuit erred in its decision to not apply the terrorism enhancement, as they failed to note the importance of social media and how it can be used by terrorist organizations to advance their goals. (45) The lower court's sentence was still lengthy [*424] despite declining to increase Alhaggagi's criminal history category after applying the enhancement, but the application of the terrorism enhancement was appropriate nonetheless. (46) Alhaggagi's conversations and provision of material support and services to ISIS via the internet were similar to those of other individuals who violated the material support statute and had the terrorism enhancement applied to their sentences. (47) Further, [*425] the majority ignored many facts highlighted in the dissent, as they glossed over Alhaggagi's possession of...