In the Second Circuit, National-Security-Based Offenses May Be Considered Especially Heinous—And Why That Matters for Those Doing Business Abroad

In a new year that’s bringing a presidential election and a Senate impeachment trial, expect a lot of conversations about national security in Washington in 2020.  In the meantime, I’m also following two national-security criminal cases out of New York that the Second Circuit recently remanded for resentencing: United States v. Mumuni and United States v. Pugh

Both Mr. Mumuni and Mr. Pugh were convicted and sentenced in the Eastern District of New York under 18 U.S.C. Section 2339B (and other statutes).  Section 2339B makes it a crime to provide “material support” to terrorist organizations.  The convictions aren’t at issue on remand, so the question isn’t whether these men will go to prison—the question is for how long.

But the question of how long, and why, matters—and not just to Mr. Mumuni and Mr. Pugh.  “Material support” under the statute covers a broad range of conduct—including, but not limited to, “financial services,” “training,” and “expert advice or assistance.”  As a result, it’s always presented some unique—and serious—legal risks to U.S. individuals and entities operating in parts of the world where terrorist groups are active.  And more recent legal developments in the United States are placing more individuals and entities at risk of being accused by the government—and by private parties—of providing material support to terrorists.  In this legal climate, it’s important to look at decisions that U.S. federal judges are making in these cases—including decisions about what punishment is appropriate for violations of Section 2339B.

Pugh and Mumuni presented two very different sentences.  Mr. Pugh was sentenced to 35 years, the maximum advisory sentence under the United States Sentencing Guidelines.  The Second Circuit vacated that sentence because the judge failed to give any reasons why a shorter sentence would have been insufficient.  (Judge Calabresi’s concurring opinion discussing the government’s use of the obstruction-of-justice charge in Mr. Pugh’s case to drive up the maximum available sentence is also worth a read.)  Mr. Mumuni, on the other hand, was sentenced to 17 years—decades below the advisory range for his case under the Guidelines, which provided for a minimum of 85 years.  The Second Circuit also vacated that sentence—and a majority (two of the three judges) agreed in a written opinion that, under those circumstances, a 17-year sentence was so low that it “shock[ed] the conscience” and could not stand.

It’s not surprising that terrorism cases would invite intense disagreement about how the underlying conduct should be punished.  That’s especially true for Mr. Mumuni, who’d also pled guilty to attempted murder of an FBI agent.  Most of the majority’s opinion in Mumuni was focused on that attempted-murder conviction and the belief that that offense warranted a much harsher sentence.

But at the very end of that opinion, the majority also brought up the material-support conviction—and held that the fact that Mr. Mumuni’s was a terrorism case should have outweighed the other mitigating factors that the district judge considered, including the fact that no actual physical injury occurred.  The third judge, Judge Hall, filed a separate opinion dissenting on this point and others, but he agreed that remand was appropriate for the district court judge to explain her reasoning behind the sentence more fully.

We don’t know yet how the district judges will resentence Mr. Pugh and Mr. Mumuni.  They retain a lot of discretion in resentencing notwithstanding the directives from the Second Circuit. We don’t know whether they’ll consider that there was no physical injury involved in either case.  We don’t know whether they’ll weigh any other mitigating factors, which federal judges routinely do at sentencing.  And we don’t know whether they’ll decide—as the majority in Mumuni suggested might be appropriate—to impose higher sentences solely because the case is a terrorism case.

But for individuals and groups who are lawfully operating in parts of the world where the U.S. government believes terrorist groups are active, what the courts decide in this space matters.  Other branches of government—and even private parties—have been expanding the universe of legal risks for these individuals and groups, including non-profits involved in humanitarian and peacebuilding work abroad.  Recent examples include:

• Expanding authority given by the President to the Treasury Department’s Office of Foreign Assets Control (OFAC), which administers counterterrorism sanctions that carry civil and criminal penalties for violations;

• Proposed legislation in Congress which, if passed, would require additional due diligence and regulatory disclosures of confidential and privileged information about ownership, with harsh civil and criminal penalties for noncompliance (you also can read the ABA’s opposition here), and

• False Claims Act lawsuits brought by the U.S. government and private qui tam plaintiffs against nonprofits, alleging that their grants from the United States Agency for International Development were obtained on the basis of false certifications of compliance with the material-support laws.

As the other branches of government—and private parties—are taking steps to expand criminal and civil liability under the material-support laws, the more the judiciary will be called upon to enforce those laws.  In Pugh and Mumuni, we’ll see how at least two district judges respond.