## Facts

- The FBI investigated Tarik Shah for jihad-related activity and used a confidential informant and an undercover agent posing as an al Qaeda representative to record conversations.
- Shah repeatedly described Rafiq Sabir, a U.S.-citizen physician who worked in Saudi Arabia, as his partner in jihad-related efforts.
- In May 2005, Sabir met with Shah, the confidential informant, and the undercover agent, who represented himself as an al Qaeda recruiter.
- Sabir stated he would soon return to Riyadh and offered to provide medical assistance to mujahideen, giving personal and work phone numbers so fighters could contact him.
- Sabir participated in a bayat ritual, swearing allegiance to al Qaeda and obedience to Osama bin Laden.
- Abdulrahman Farhane, a New York City imam, was also implicated in the same operation based on recorded discussions of providing support in his religious capacity.
- Farhane and Sabir were indicted in the Southern District of New York for conspiracy to provide, and providing or attempting to provide, material support to al Qaeda under 18 U.S.C. § 2339B.
- A jury convicted both defendants; they appealed challenging § 2339B’s constitutionality (as applied) and the sufficiency of the evidence, with Sabir specifically contesting the conspiracy and attempt findings.

## Issues

1. Whether 18 U.S.C. § 2339B (material support to a designated foreign terrorist organization), including the “personnel” category, is unconstitutionally vague or overbroad on its face or as applied to Sabir’s offer of medical services.
2. Whether the evidence was sufficient to prove Sabir’s conspiracy to provide material support (agreement and knowing participation).
3. Whether the evidence was sufficient to prove Sabir’s attempt to provide material support, including whether his conduct constituted a substantial step beyond mere preparation.
4. Whether the evidence and asserted trial errors required reversal of Farhane’s convictions under § 2339B.

## Decision

- The Second Circuit affirmed the judgments of conviction and sentences.
- The court held § 2339B was not unconstitutionally vague or overbroad, either facially or as applied to Sabir’s conduct.
- The court held the evidence was sufficient to support Sabir’s convictions for both conspiracy and attempt to provide material support to al Qaeda.
- The court rejected Farhane’s challenges and upheld his conviction based on evidence of knowing participation in a material-support conspiracy.

## Legal Principles

- Section 2339B criminalizes knowingly providing, attempting to provide, or conspiring to provide “material support or resources” (including “personnel”) to a designated foreign terrorist organization, with a scienter requirement tied to the organization’s designation or terrorist activity.
- Vagueness and overbreadth challenges fail where the statute, particularly as construed by controlling precedent, gives fair notice that coordinated support to a foreign terrorist organization (as opposed to independent advocacy) is prohibited.
- The statute contains no general “medical” or humanitarian exemption that would immunize a deliberate offer to serve as on-call personnel for a designated terrorist organization.
- For conspiracy, the government must prove an agreement to provide prohibited support and the defendant’s knowing and intentional participation; direct proof is not required and may be inferred from coordinated acts and statements.
- For attempt, the government must prove intent to commit the substantive offense and a substantial step strongly corroborative of that intent; meeting with an apparent agent of the organization, providing concrete contact information, and taking an oath of allegiance can together permit a rational finding of a substantial step.

## Conclusion

The Second Circuit sustained § 2339B’s application to coordinated offers of services to a designated foreign terrorist organization and affirmed convictions where the record supported both an agreement to provide “personnel” and conduct the jury could treat as a substantial step toward doing so.


United States v. Farhane, 634 F.3d 127 (2d Cir. 2011)