UNITED STATES OF AMERICA v

UNITED STATES OF AMERICA v.OMAR AHMAD ALI ABDEL RAHMAN, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 1997

I. Constitutional Challenges

A. Seditious Conspiracy Statute and the Treason Clause….

B. Seditious Conspiracy Statute and the First Amendment

Rahman, joined by the other appellants, contends that the seditious conspiracy statute is an unconstitutional burden on free speech and the free exercise of religion in violation of the First Amendment. First, Rahman argues that the statute is facially invalid because it criminalizes protected expression and that it is overbroad and unconstitutionally vague. Second, Rahman contends that his conviction violated the First Amendment because it rested solely on his political views and religious practices.

1. Facial Challenge

a. Restraint on Speech. Section 2384 provides:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall be fined under this title or imprisoned not more than twenty years, or both.

As Section 2384 proscribes "speech" only when it constitutes an agreement to use force against the United States, Rahman's generalized First Amendment challenge to the statute is without merit. Our court has previously considered and rejected a First Amendment challenge to Section 2384…the question was squarely controlled by the Supreme Court's then-recent decision in Dennis v. United States, (1951). In Dennis, the Court upheld the constitutionality of the Smith Act, which made it a crime to advocate, or to conspire to advocate, the overthrow of the United States government by force or violence. The Dennis Court concluded that, while the "element of speech" inherent in Smith Act convictions required that the Act be given close First Amendment scrutiny, the Act did not impermissibly burden the expression of protected speech, as it was properly "directed at advocacy [of overthrow of the government by force], not discussion."

After Dennis, the Court broadened the scope of First Amendment restrictions on laws that criminalize subversive advocacy. It remains fundamental that while the state may not criminalize the expression of views--even including the view that violent overthrow of the government is desirable--it may nonetheless outlaw encouragement, inducement, or conspiracy to take violent action…And in Brandenburg v. Ohio (1969) the Court held that a state may proscribe subversive advocacy only when such advocacy is directed towards, and is likely to result in, "imminent lawless action."

The prohibitions of the seditious conspiracy statute are much further removed from the realm of constitutionally protected speech than those at issue in Dennis and its progeny. To be convicted under Section 2384, one must conspire to use force, not just to advocate the use of force. We have no doubt that this passes the test of constitutionality.

Our view of Section 2384's constitutionality also finds support in a number of the Supreme Court's more recent First Amendment decisions. These cases make clear that a line exists between expressions of belief, which are protected by the First Amendment, and threatened or actual uses of force, which are not.

b. Vagueness and Overbreadth...[claims rejected by the court]

2. Application of Section 2384 to Rahman's Case

Rahman also argues that he was convicted not for entering into any conspiratorial agreement that Congress may properly forbid, but "solely for his religious words and deeds" which, he contends, are protected by the First Amendment. In support of this claim, Rahman cites the Government's use in evidence of his speeches and writings.

There are two answers to Rahman's contention. The first is that freedom of speech and of religion do not extend so far as to bar prosecution of one who uses a public speech or a religious ministry to commit crimes. Numerous crimes under the federal criminal code are, or can be, committed by speech alone....

The evidence justifying Rahman's conviction for conspiracy and solicitation showed beyond a reasonable doubt that he crossed this line. His speeches were not simply the expression of ideas; in some instances they constituted the crime of conspiracy to wage war on the United States under Section 2384 and solicitation of attack on the United States military installations, as well as of the murder of Egyptian President Hosni Mubarak under Section 373.

For example:

Rahman told Salem he "should make up with God . . . by turning his rifle's barrel to President Mubarak's chest, and kill[ing] him."

On another occasion, speaking to Abdo Mohammed Haggag about murdering President Mubarak during his visit to the United States, Rahman told Haggag, "Depend on God. Carry out this operation. It does not require a fatwa . . . You are ready in training, but do it. Go ahead."

The evidence further showed that Siddig Ali consulted with Rahman about the bombing of the United Nations Headquarters, and Rahman told him, "Yes, it's a must, it's a duty."

On another occasion, when Rahman was asked by Salem about bombing the United Nations, he counseled against it on the ground that it would be "bad for Muslims," but added that Salem should "find a plan to destroy or to bomb or to . . . inflict damage to the American Army."

Words of this nature--ones that instruct, solicit, or persuade others to commit crimes of violence--violate the law and may be properly prosecuted regardless of whether they are uttered in private, or in a public speech, or in administering the duties of a religious ministry. The fact that his speech or conduct was "religious" does not immunize him from prosecution under generally-acceptable criminal statutes.

Rahman also protests the Government's use in evidence of his speeches, writings, and preachings that did not in themselves constitute the crimes of solicitation or conspiracy. He is correct that the Government placed in evidence many instances of Rahman's writings and speeches in which Rahman expressed his opinions within the protection of the First Amendment. However, while the First Amendment fully protects Rahman's right to express hostility against the United States, and he may not be prosecuted for so speaking, it does not prevent the use of such speeches or writings in evidence when relevant to prove a pertinent fact in a criminal prosecution. The Government was free to demonstrate Rahman's resentment and hostility toward the United States in order to show his motive for soliciting and procuring illegal attacks against the United States and against President Mubarak of Egypt.

Furthermore, Judge Mukasey properly protected against the danger that Rahman might be convicted because of his unpopular religious beliefs that were hostile to the United States. He explained to the jury the limited use it was entitled to make of the material received as evidence of motive. He instructed that a defendant could not be convicted on the basis of his beliefs or the expression of them--even if those beliefs favored violence. He properly instructed the jury that it could find a defendant guilty only if the evidence proved he committed a crime charged in the indictment.

We reject Rahman's claim that his conviction violated his rights under the First Amendment.