Ninth Circuit Dumps Sentencing Enhancement Handed To Defendant For Opening Social Media Accounts For ISIS Sympathizers

Legal Issues

from the decades-in-jail-for-sock-puppet-construction dept

The FBI is still creating terrorists — finding loud-mouthed online randos to radicalize by hooking them up with undercover agents and informants seemingly far more interested in escalating things than defusing possibly volatile individuals.

The Ninth Circuit Court has, fortunately, decided to roll back a ridiculous sentencing enhancement added to another one of the FBI’s homegrown extremists. The terrorism enhancement in this case was triggered by this: the defendant’s opening of six social media accounts for alleged ISIS sympathizers.

The details of the case — contained in the court’s reversal [PDF] of the sentencing enhancement — show Amer Alhaggagi was a bit of a troll. The son of Yemeni immigrants, Alhaggagi was born in California but spent a lot of his life traveling back and forth to Yemen to spend time with his mother. He was raised in a Muslim home but that upbringing didn’t really make him a Muslim. He didn’t seem to have much interest in adhering to the religion’s rules and instead drifted towards the internet, where he developed a “sarcastic and antagonistic persona.”

This is how things were going before the FBI got involved:

In 2016, at the age of 21, Alhaggagi began participating in chatrooms, and chatting on messaging apps like Telegram, which is known to be used by ISIS. He chatted both in Sunni group chats sympathetic to ISIS and Shia group chats that were anti-ISIS. He trolled users in both groups, attempting to start fights by claiming certain users were Shia if he was in a Sunni chatroom, or Sunni if he was in a Shia chatroom, to try to get other users to block them. He was expelled from chatrooms for inviting female users to chat, which was against the etiquette of these chatrooms, as participants in those chats followed the Islamic custom of gender segregation.

One can only imagine what would have happened to Alhaggagi if the FBI hadn’t decided to step in. Probably something way less interesting than what happened when it did. The internet is full of trolls, even the parts of the internet most people don’t access. But an FBI source happened to be hanging out in a chatroom when Alhaggagi attempted to stir up the crowd there with some extremist chatter.

In one Sunni chatroom, in late July 2016, Alhaggagi caught the attention of a confidential human source (CHS) for the FBI when he expressed interest in purchasing weapons. In chats with the CHS, Alhaggagi made many claims about his ability to procure weapons, explaining that he had friends in Las Vegas who would buy firearms and ship them to him via FedEx or UPS. Alhaggagi also made disturbing claims suggesting he had plans to carry out attacks against “10,000 ppl” in different parts of the Bay Area by detonating bombs in gay nightclubs in San Francisco, setting fire to residential areas of the Berkeley Hills, and lacing cocaine with the poison strychnine and distributing it on Halloween. He claimed to have ordered strychnine online using a fake credit card, of which he sent a screenshot to the CHS, bragging that he engaged in identity theft and had his own device-making equipment to make fake credit cards.

In isolation, this sounds horrifying. Given the context of Alhaggagi’s internet trolling, it was just more bullshit. As the court notes, his online persona was not especially well-crafted and prone to delivering contradictory claims during the same chatroom conversations.

One minute his persona was selling weapons, the next he claimed to need them, all in the same chatroom. His persona allegedly had associates in Mexican cartels who could get him grenades, bazookas, and RPGs, offered to join a user in Brazil to attack the Olympics, and was considering conducting attacks in Dubai.

This isolated braggadocio led to 24-hour surveillance by the feds and the insertion of an undercover agent into Alhaggagi’s life. The FBI’s confidential informant pushed Alhaggagi to meet with the undercover agent and things kind of took off from there. The pair discussed bomb-making and visited a storage space to supposedly be used to store bomb stuff. Alhaggagi said other ridiculous things, like detailing a plan to become a cop so he could obtain more weapons. On the third visit, the FBI stocked the storage space with fake explosives. On the drive back, Alhaggagi pointed out good locations for bombs.

Then he stopped meeting with the undercover agent. Alhaggagi claimed seeing the explosives in the storage space made it clear he’d taken this too far. From that point on, he never contacted the undercover agent again.

The FBI searched his home in November of 2016, finding evidence showing Alhaggagi was back to trolling, rolling into ISIS-related chatrooms to say bad things about the US government. It also found that he had opened up Twitter and Gmail accounts for some people in the chatroom, who were alleged ISIS sympathizers. Some of these accounts were later linked to ISIS’s propaganda organization. Agents also found online searches related to bomb-making, strychnine, and flammable devices/substances.

The “material support” alleged here was the opening of social media and email accounts. But the court doesn’t find the government’s arguments persuasive. The government had the burden of proving Alhaggagi knew these accounts would be used to “intimidate or coerce” the US government or “retaliate” against it via violent acts.

The lower court simply shrugged and said there was no other possible use for the accounts, given that they were created for people in a pro-ISIS chatroom. But that shrug of indifference added decades to Alhaggagi’s sentence. The probation office’s pre-sentencing report suggested 48 months. The government countered with its terrorism enhancement, asking for a 396-month sentence. That’s a difference of 29 years. The court settled on 188 months with 10 years of supervised release.

The Appeals Court reminds the government that the enhancement doesn’t automatically apply to material support for terrorism charges. It also notes the government fell short on the burden of proof.

The district court’s conclusion rests on the erroneous assumption that in opening the social media accounts for ISIS, Alhaggagi necessarily understood the purpose of the accounts was “to bolster support for ISIS’s terrorist attacks on government and to recruit adherents.” Unlike conspiring to bomb a federal facility, planning to blow up electrical sites, attempting to bomb a bridge, or firebombing a courthouse—all of which have triggered the enhancement— opening a social media account does not inherently or unequivocally constitute conduct motivated to “affect or influence” a “government by intimidation or coercion.” 18 U.S.C. § 2332b(g)(5)(A). In other words, one can open a social media account for a terrorist organization without knowing how that account will be used; whereas it is difficult to imagine someone bombing a government building without knowing that bombing would influence or affect government conduct.

The lower court stretched the definition beyond credulity to add more than a decade to the defendant’s sentence.

The district court’s “cause and effect” reasoning is insufficient because the cause—opening social media accounts—and the effect—influencing government conduct by intimidation or coercion—are much too attenuated to warrant the automatic triggering of the enhancement. Instead, to properly apply the enhancement, the district court had to determine that Alhaggagi knew the accounts were to be used to intimidate or coerce government conduct.

The FBI found a malcontent wandering the internet and when the troll refused to keep participating in the “blow shit up” charade, it raided and arrested him for material support. Then, for the crime of opening social media accounts, the government wanted to lock him up for more years than he’d been alive. And, for all the effort — the 24-hour surveillance, the undercover agent, and the confidential informant — the FBI came no closer to heading off a terrorist attack or taking down a terrorist organization.

Filed Under: 9th circuit, amer alhaggagi, fbi, isis, own plots, own terrorists, sentencing enhancements, social media, trolling, trolls