[00:00:01] Speaker 02:
Good morning.

[00:00:02] Speaker 02:
Eric Fish, appearing for Mr. Khrushchev.

[00:00:04] Speaker 02:
I was going to take eight minutes for my initial argument and reserve four for my colleague, Mr. Chin.

[00:00:09] Speaker 02:
He'll be handling the argument that the Assad regime was not a government.

[00:00:13] Speaker 02:
And then I'd like to reserve three minutes for rebuttal.

[00:00:16] Speaker 02:
So Mr. Khrushchev's case should be sent back for resentencing.

[00:00:20] Speaker 02:
Mr. Khrushchev received a 12-year sentence for attempting to send $13,000 to an entity that at the time was a designated foreign terrorist organization.

[00:00:30] Speaker 02:
That sentence was based on a 12-point super enhancement that brought his guidelines from 57 to 71 months to 30 years to life.

[00:00:40] Speaker 02:
To be clear, attempting to send money to HTS does make one guilty of material support.

[00:00:46] Speaker 02:
And sending money knowing or having reason to believe that it will be used for weapons makes the medium enhancement appropriate, which we don't contest on appeal.

[00:00:56] Speaker 02:
But to find the super enhancement, the district court needed to find

[00:01:00] Speaker 02:
specific intent.

[00:01:02] Speaker 02:
The super enhancement requires that the crime be calculated, that is the sending of money, be calculated to intimidate, coerce, or retaliate against government conduct.

[00:01:12] Speaker 02:
And in applying this super enhancement, the sentencing judge stated an incorrect legal standard, made inadequate factual findings, and did not sufficiently explain the reasons for the enhancement.

[00:01:23] Speaker 02:
So starting first with the legal standard, the judge at sentencing stated during the argument

[00:01:30] Speaker 02:
that the defense's argument concerning specific intent hinges on the judge accepting Mr. Khrushchev's primary motivation was supporting journalistic efforts.

[00:01:41] Speaker 02:
The judge also repeats that in the statement of reasons for the sentence.

[00:01:46] Speaker 02:
That is not a correct statement of the law.

[00:01:48] Speaker 02:
The law requires that the enhancement only applies where the money is provided with the specific intent

[00:01:57] Speaker 02:
to retaliate against, intimidate, or coerce a foreign government.

[00:02:02] Speaker 02:
Based on that legal error, this court should apply de novo review and send the case back for resentencing.

[00:02:09] Speaker 02:
In addition, the government argued at sentencing, and the judge seemed to accept, and the government continues to argue on appeal, that simply sending the money to HTS, knowing what HTS was doing, being aware of its activities, was sufficient to apply the enhancement.

[00:02:26] Speaker 02:
But this enhancement,

[00:02:27] Speaker 02:
focuses on the specific intent of the crime.

[00:02:31] Speaker 05:
That is... So just to understand what your position is here, suppose the defendant had said, and everyone agrees that this was truthful, my intent in sending this money is to support combat operations by HTS against the Assad government.

[00:02:48] Speaker 05:
Setting aside whether the Assad government is a government, would that be sufficient for this enhancement?

[00:02:55] Speaker 02:
It could be, Your Honor.

[00:02:55] Speaker 02:
We would also need a finding as to which conduct was being retaliated against, intimidated, or coerced.

[00:03:01] Speaker 02:
So some examples of sort of heartland cases for this enhancement.

[00:03:07] Speaker 02:
United States versus Aloe Mer, this is from the Third Circuit.

[00:03:10] Speaker 02:
The enhancement was appropriately found for attempts to materially support a terrorist group where the defendant plotted to bomb a church in retaliation against the Nigerian government's conduct in killing members of the terrorist group.

[00:03:22] Speaker 02:
So there you have retaliation.

[00:03:24] Speaker 02:
You have specific intent that is the attempted material support is for, you know, specific retaliation and you have conduct.

[00:03:32] Speaker 05:
Okay.

[00:03:32] Speaker 05:
So then let me vary the hypothetical a little bit.

[00:03:35] Speaker 05:
Suppose he said,

[00:03:37] Speaker 05:
This money is intended to support combat operations against the Assad regime because I want them overthrown because of their human rights abuses against people in Syria.

[00:03:48] Speaker 02:
I think that would be sufficient, Your Honor.

[00:03:50] Speaker 02:
Okay.

[00:03:50] Speaker 02:
If the specific intent was oriented towards particular conduct and retaliatory, yes.

[00:03:55] Speaker 05:
And why is the, I mean, given the deference that we have to apply to the district court's factual findings, why isn't the evidence sufficient to allow the court to have inferred that that was essentially what he had in mind?

[00:04:10] Speaker 02:
Well, Your Honor, as this court instructed in the Al-Haggagi case, the key question is not, the focus is not on the offender, it is on the offense.

[00:04:19] Speaker 02:
The key question is, was the provision of the dollars calculated to achieve the particular objective specified in the statute?

[00:04:28] Speaker 02:
And in this case, as in al-Haggagi, we have the record reflect statements communicated between the defendant and the person that he's sending money to that he does not know what the money is being used for.

[00:04:43] Speaker 02:
I'm giving it to you.

[00:04:45] Speaker 02:
You decide what it's for.

[00:04:47] Speaker 02:
There's also

[00:04:49] Speaker 02:
a statement from the Mr. Fuzimitov, the kind of HTS intermediary, that the money is going to be used for journalistic efforts for the Amalife program.

[00:04:59] Speaker 02:
Those statements are focused on the provision of the dollars themselves.

[00:05:03] Speaker 02:
Now, there are other statements.

[00:05:05] Speaker 05:
Right, there are other statements.

[00:05:06] Speaker 02:
Yes, of course.

[00:05:06] Speaker 02:
There are other statements that Dartmouth will no doubt emphasize.

[00:05:09] Speaker 05:
Yeah, we're going to use the assets to carry out jihad.

[00:05:11] Speaker 05:
And he says, yes, I'm trying to act with that intent.

[00:05:15] Speaker 05:
We have the evidence that he was looking up information about the helmets and tactical gear.

[00:05:24] Speaker 05:
So couldn't the district court infer from that

[00:05:28] Speaker 05:
an intent to have at least some of the money, maybe not all of it, but some of it, used for combat operations?

[00:05:35] Speaker 02:
So, Your Honor, just as in al-Haggagi, the general sort of beliefs of the defendant and the defendant's general support for the activities of the designated terrorist organization aren't enough to support application of the enhancement to the crime.

[00:05:50] Speaker 02:
The question is whether in providing the dollars, the defendant had the union of act and intent.

[00:05:56] Speaker 02:
That is, whether the actual provision of money was calculated for a particular purpose.

[00:06:01] Speaker 02:
Right.

[00:06:01] Speaker 05:
But we don't need him to put it in the memo line on the check.

[00:06:07] Speaker 05:
We can infer the intent from the surrounding circumstances.

[00:06:11] Speaker 05:
And what I'm saying is, why don't the statements that I just pointed to allow the district court, maybe not require the district court, but allow the district court to draw that inference?

[00:06:20] Speaker 02:
Well, so as in al-Haggagi, so in al-Haggagi, there were also statements in support of ISIS.

[00:06:27] Speaker 02:
In al-Haggagi, there was also sort of engagement with online extremist material.

[00:06:32] Speaker 02:
This court in al-Haggagi specifically instructed that the focus is not on the defendant, but on the offense.

[00:06:39] Speaker 02:
Right.

[00:06:39] Speaker 02:
And that this court in Al-Haggagi found it decisive or at least very important to the result that Mr. Al-Haggagi didn't know how the social media accounts were going to be used, that he had simply created email accounts and social media accounts for ISIS members without knowing what kind of media campaign it was going to be used for.

[00:06:57] Speaker 02:
similar statements here, similar communications here between uh... mr kurashev and the uh... the intermediary that he does not know what you're going to use it for, you asked me for it i'm providing it to you.

[00:07:09] Speaker 02:
I think that those statements are the only kind of relevant ones as this court has provided in al-haggagi.

[00:07:16] Speaker 00:
Yes?

[00:07:16] Speaker 00:
There are some statements in al-haggagi that seems confusing to me in terms of applying

[00:07:25] Speaker 00:
the law here as it's set for it, because statements in al-Haggagi that says you don't look at motivation, but you're supposed to look at specific, you do, it requires specific intent.

[00:07:38] Speaker 00:
Having trouble dissecting motivation from specific intent for the reasons that Judge Miller has said in terms of all, we have all these statements where he's, I think we can

[00:07:53] Speaker 00:
somebody could draw inference like the district court did that in donating the money, what was the purpose?

[00:08:03] Speaker 00:
It was to promote HTS's war efforts, right?

[00:08:09] Speaker 00:
And therefore, I guess, coerce or influence the Syrian government.

[00:08:17] Speaker 00:
trying to figure out why that isn't enough, because I do see in places where Al-Ghaghi also says has to be a direct connection to the, I guess, adverse effects on the government in question here, which could be the Syrian government.

[00:08:35] Speaker 00:
And so I'm just trying to figure out how to do that in light of the statements here.

[00:08:42] Speaker 00:
light of the references to the Syrian government, how sure, how tight it has to be in terms of direct correlation or connection?

[00:08:53] Speaker 02:
So, in al-Haggagi, this court focused on statements made in connection with the provision of the social media accounts.

[00:09:01] Speaker 02:
That is, with the creation of the email accounts and the social media accounts.

[00:09:04] Speaker 02:
This court

[00:09:05] Speaker 02:
discounted and kind of downplayed other statements, other background evidence of engagement with extremism, other statements that Mr. Alhagy supported ISIS, supported a caliphate, et cetera.

[00:09:16] Speaker 02:
I think the court should do the same here.

[00:09:18] Speaker 02:
So in this case, there are statements directly connected to the sending of the dollars that indicate that Mr. Khrushchev does not know what they will be used for, has no preference about what they will be used for.

[00:09:29] Speaker 02:
As the court stated at sentencing, and it's brief, there are multiple different purposes, some of which

[00:09:34] Speaker 02:
that HTS could have put the money towards, some of which involve providing funds for humanitarian aid, some of which involve media work, purchasing cameras, et cetera, and some of which potentially involve purchasing weapons.

[00:09:47] Speaker 02:
The defendant does not know what purpose his money is going to, has no particular intent with respect to that purpose.

[00:09:54] Speaker 02:
And so I think the distinction drawn in al-Haggagi between sort of the defendant's broader background beliefs and larger support of the designated terrorist organization

[00:10:03] Speaker 02:
are distinguished from the evidence of the specific purpose the defendant has in committing the crime, which in this case is the provision of funds.

[00:10:12] Speaker 05:
You said he doesn't know what the funds are being used for, but Fazimatov told him you are using your assets to carry out jihad.

[00:10:20] Speaker 05:
Doesn't that mean that he knew that that's what the money was being used for?

[00:10:24] Speaker 02:
So that is sort of a general statement of support for the side of HTS in this conflict.

[00:10:33] Speaker 02:
Certainly, as most, as did the US government, Mr. Al-Haggagi did not like the Assad regime.

[00:10:42] Speaker 02:
But the statements that I think are kind of most relevant

[00:10:45] Speaker 02:
Under oligarchy are the ones specifically connected to the provision of funds that is that there are no for no particular purpose doesn't know what they're being sent to sent for and in addition.

[00:10:58] Speaker 02:
You know so we're not contesting the medium enhancement right it's not sufficient.

[00:11:02] Speaker 02:
that Mr. Khrushchev has reason to believe that the funds could be used for weapons.

[00:11:09] Speaker 02:
What we need is a finding of specific intent that Mr. Khrushchev wants the funds to be used to intimidate, coerce, or retaliate against a government.

[00:11:17] Speaker 02:
And in addition, I do want to get to sort of our third issue, which is that this court should even

[00:11:25] Speaker 02:
sort of all of these, this discussion aside, remand for a lack of adequate explanation of the sentence.

[00:11:33] Speaker 02:
In the cases we cited, Arcila Ramirez, and in the Fourth Circuit case, United States versus Chandia, appellate courts reversed sentences that were enhanced by this enhancement because the district court did not make adequate factual findings about what the specific intent was, what conduct was being retaliated against, coerced or intimidated,

[00:11:56] Speaker 02:
And that's the case here.

[00:11:57] Speaker 02:
We don't know which verb the district judge found, whether it was intimidation, coercion, or retaliation.

[00:12:03] Speaker 02:
The judge didn't specify.

[00:12:04] Speaker 02:
The judge simply stated that Mr. Khrushchev was trying to affect what the Syrian government was doing.

[00:12:09] Speaker 02:
We also don't know what conduct.

[00:12:11] Speaker 02:
It would be, you know, much easier to argue this case on appeal if we had particular detailed factual findings about how exactly Mr. Kurishev's conduct, you know, matches the enhancement.

[00:12:25] Speaker 05:
Did you object in the district court that the explanation of the sentence or the explanation of the enhancement was inadequate?

[00:12:31] Speaker 02:
So there wasn't a point at which, after the explanation was given, the defense lawyer stood up and said, I object to your explanation.

[00:12:41] Speaker 02:
I do think that in this kind of issue, that the cases we cite in our brief reflect that appellate courts should give somewhat less deference to district courts' failure to adequately explain the sentence because it limits appellate review.

[00:12:56] Speaker 02:
So irrespective of what standard of review, formally speaking, you end up applying, I do think for this particular kind of issue where the sentencing issues were debated extensively, where there was a discussion of what the factors were,

[00:13:10] Speaker 02:
And then the district judge imposes the enhancement without adequate explanation.

[00:13:16] Speaker 02:
I do think that that should be given somewhat more searching review than an ordinary type of plain error issue.

[00:13:23] Speaker 02:
Unless there are further questions.

[00:13:38] Speaker 03:
Good morning.

[00:13:38] Speaker 03:
May it please the court, Gabriel Chen for Mr. Khrushchev.

[00:13:42] Speaker 03:
The Assad regime was not a government for purposes of the 3A1.4A super enhancement.

[00:13:48] Speaker 03:
And therefore, the judgment should be reversed and remanded for resentencing without the enhancement.

[00:13:54] Speaker 03:
The relevant facts are remarkable and undisputed.

[00:13:57] Speaker 03:
Years before the conduct at issue in this case, the United States derecognized the Assad regime.

[00:14:02] Speaker 03:
We withdrew our embassy, expelled.

[00:14:04] Speaker 03:
Assad's diplomats from this country.

[00:14:06] Speaker 03:
We recognized another group as the legitimate representatives of the Syrian people.

[00:14:11] Speaker 03:
We made war against the Assad regime through military strikes and funding opposition groups.

[00:14:16] Speaker 03:
The U.S.-supported campaign worked, and now the people to whom Mr. Khrushchev contributed are the leaders of Syria.

[00:14:23] Speaker 03:
They've met with President Trump, Secretary Rubio, and others.

[00:14:27] Speaker 03:
The government cites no cases holding

[00:14:29] Speaker 03:
that the rogue Assad regime is a government for purposes of the super enhancement when the issue was raised.

[00:14:35] Speaker 03:
And we are aware of none other than the U.S.

[00:14:39] Speaker 03:
versus Khan Fifth Circuit decision, which acknowledged the decision but did not rule.

[00:14:45] Speaker 03:
You have asked a number of advocates today, Your Honors, for their best case.

[00:14:50] Speaker 03:
And I would say our best case is this.

[00:14:54] Speaker 03:
The Department of Justice National Security Division has access to every material support of terrorism and related case which has ever been prosecuted.

[00:15:04] Speaker 03:
And I was curious, I will admit, whether they would bring forward a list of dozens or hundreds of unpublished decisions or all rulings that I was unable to find where the enhancement was applied to an unrecognized regime, a cartel, a warlord,

[00:15:20] Speaker 03:
ISIS, but they didn't.

[00:15:22] Speaker 03:
This is the dog that didn't bark, and there's a reason for that, and that is that the statutes defining government frequently say that it applies to unrecognized regimes when unrecognized regimes are covered.

[00:15:39] Speaker 03:
Congress has so legislated explicitly in all of the definitions that we found in Title 18, based on the cannon against surplusage

[00:15:49] Speaker 03:
based on the interpretive canon against absurdity, at least as a matter of lenity, this court should not construe the word government in its widest conceivable meaning.

[00:16:01] Speaker 05:
It's not its widest conceivable meaning.

[00:16:05] Speaker 05:
The ordinary language understanding of a government is like the people who are exercising authority over some territory, right?

[00:16:13] Speaker 05:
And those could be people who are doing a good job of it, people who are not.

[00:16:18] Speaker 05:
people who the United States recognizes, people in the United States don't.

[00:16:21] Speaker 05:
But I just didn't.

[00:16:23] Speaker 05:
In terms of the ordinary meaning of the word government, I don't think is restricted to those governments that are recognized as sovereigns by the United States of America.

[00:16:32] Speaker 05:
Is it?

[00:16:33] Speaker 03:
I think, Your Honor, that it means government for purposes of US law.

[00:16:38] Speaker 03:
I think MS-13, ISIS, the Sinaloa cartel exercise authority over certain territory to the exclusion of other

[00:16:47] Speaker 03:
entities.

[00:16:49] Speaker 03:
They have armed forces.

[00:16:51] Speaker 03:
They exact taxes under the people under their jurisdiction.

[00:16:55] Speaker 03:
But they're not a government, I would submit, for purposes of the super enhancement.

[00:17:00] Speaker 03:
This court and other federal courts use the word church government, government of the union, for labor union, student government.

[00:17:08] Speaker 03:
Government is used in a wide variety of contexts.

[00:17:11] Speaker 03:
This one, I submit, your honor,

[00:17:15] Speaker 03:
is in the victim enhancement area of the US sentencing guidelines.

[00:17:22] Speaker 03:
And therefore, I think under the canons of interpretation, it's appropriate to say that we're talking about governments that the United States has some interest in protecting.

[00:17:37] Speaker 00:
Thank you.

[00:17:39] Speaker 03:
Thank you.

[00:17:53] Speaker 01:
Man please the court Joseph meant on behalf the United States.

[00:17:57] Speaker 01:
There was no error plane or otherwise.

[00:17:59] Speaker 01:
And curse have sentencing in this court should affirm.

[00:18:03] Speaker 01:
After a lengthy discussion with the parties the district court correctly concluded.

[00:18:06] Speaker 01:
The curse has own words show that he had the necessary intent to trigger the section 3 a 1.4 enhancement.

[00:18:13] Speaker 01:
I'd like to start with the one issue that curse have raised below before turning to his unpreserved issues.

[00:18:18] Speaker 01:
On this issue, I wanted to begin by highlighting two exchanges between Khrushchev and Fazimanov, the HTS fundraiser that he sent money to.

[00:18:26] Speaker 01:
Judge Miller already recounted one of them, where Fazimanov explained that Khrushchev should trust in Allah knowing he's using his assets to carry out jihad.

[00:18:37] Speaker 01:
And Khrushchev's response was, yes, brother, I am trying to act only with this intent.

[00:18:41] Speaker 01:
The second exchange after Fezimanov was complaining about how much money he had needed to spend, Khrushchev's response was, war is an expensive pleasure.

[00:18:50] Speaker 01:
I think that these two exchanges explain not only that Khrushchev knew where his money was going, but that he intended the money to be used to further HDS's battle against the Syrian government.

[00:19:03] Speaker 00:
Do we need more direct evidence to directly connect that statement to the Syrian government?

[00:19:11] Speaker 01:
I don't know that you do, but here you have it.

[00:19:14] Speaker 01:
You can look at paragraph 34 of the PSR where Khrushchev explains his motivations for what he did.

[00:19:20] Speaker 00:
But how do we reconcile that with Alhagahee that says we don't look at his motivations?

[00:19:26] Speaker 00:
We have to look at the specific act, which in this case is the money being transferred.

[00:19:31] Speaker 00:
I'm really trying to understand this.

[00:19:35] Speaker 00:
The money being transferred, that money being transferred,

[00:19:39] Speaker 00:
has to go toward retaliation or coercion or something toward that government, the subject government, here's the Syrian government.

[00:19:48] Speaker 00:
And here we have statements that he made, and I acknowledge the one, using your assets to carry out jihad, which is a statement made by Fazimodav, and his response,

[00:20:05] Speaker 00:
I am trying to act with only this intent, but it seems like a posimotor.

[00:20:12] Speaker 00:
Was more of working with his HTS or what was and that's one group That was directly I guess are trying to subvert the Syrian government, but they are also doing other things other governments and Mr. Fozzy Modof himself was

[00:20:39] Speaker 00:
A journalist had other things.

[00:20:41] Speaker 00:
I mean, so and he's giving him the money.

[00:20:43] Speaker 00:
And so I'm just wondering in light of not just our case in Al-Haggagi, but also what I'm seeing how the Second Circuit applied this, how the Fourth Circuit applied this.

[00:21:00] Speaker 00:
Is this enough?

[00:21:02] Speaker 01:
It is enough here, Your Honor.

[00:21:04] Speaker 01:
And again, I would point back

[00:21:05] Speaker 01:
Paragraph 34 of the PSR is Khrushchev explaining what motivated his offense.

[00:21:10] Speaker 01:
It's not these general statements in the time period in which he was sending this money.

[00:21:14] Speaker 01:
And he says he did it because he wanted to change what the Syrian government was doing against its people.

[00:21:19] Speaker 01:
Now, as my friends on the other side know, there were lots of people that were opposed to what the Syrian government was doing against its own people, but they had different reactions to that.

[00:21:31] Speaker 01:
What Khrushchev chose to do was to fund a terrorist organization that was fighting that government.

[00:21:35] Speaker 00:
And that's how we know that his funds were met the necessary... Do we know that his funds that he gave to Fozzy Modav, who then gave to HTS, went to some act against the Syrian government?

[00:21:50] Speaker 00:
Do we know that?

[00:21:51] Speaker 01:
We don't have that kind of tracing, no.

[00:21:53] Speaker 00:
And then that's why I'm wondering, I mean, even by preponderance of the evidence, was there a finding of that?

[00:22:01] Speaker 00:
Is there enough of a preponderance of evidence to show that?

[00:22:05] Speaker 01:
So this was an attempt to charge, Your Honor.

[00:22:07] Speaker 01:
We don't have to trace the funds all the way through.

[00:22:09] Speaker 01:
We look at what his offense of attempting to provide that money was calculated to do.

[00:22:15] Speaker 01:
And here, that offense of giving money to a terrorist organization, knowing that that organization is fighting the Syrian government, and that is what you have chosen as your response to the Syrian government's activities that have deeply offended you and many other people, that together, those three points are sufficient to trigger the enhancement.

[00:22:33] Speaker 01:
And I want to emphasize that first point that everybody agrees that Khrushchev was trying to influence the Syrian government here.

[00:22:40] Speaker 01:
That was conceded by defense counsel at page 35 of the E.R.

[00:22:47] Speaker 01:
And it's part of paragraph 34 of the PSR as well.

[00:22:50] Speaker 01:
The only dispute was whether he was trying to influence through intimidation, coercion, or retaliation.

[00:22:56] Speaker 01:
And so if we all agree, we start from the premise that he was doing these actions to influence the Syrian government, that also explains the error in his claim that there was some sort of legal error in either the district court's question or the government's arguments.

[00:23:09] Speaker 01:
Once you have an expressed intent to alter the Syrian government's activities,

[00:23:15] Speaker 01:
If you choose to act on that intent by giving money to an organization that is conducting terrorist activities against that government, that's enough to trigger the enhancement.

[00:23:25] Speaker 00:
Let's go back a little bit on the weapons, because I think in the sentencing memorandum, you say that Khrushchev intended to provide funds to purchase weapons that were intended to be used in the commission of violent acts against the Syrian army and other opponents of HTS.

[00:23:45] Speaker 00:
Do you agree?

[00:23:45] Speaker 00:
Is that true?

[00:23:46] Speaker 00:
Yes.

[00:23:46] Speaker 00:
All right.

[00:23:47] Speaker 00:
So it seems like you acknowledge that HTS had opponents other than the Syrian government.

[00:23:54] Speaker 01:
That's absolutely true.

[00:23:56] Speaker 00:
All right.

[00:23:58] Speaker 00:
So maybe I'm not reading this right, but if I'm reading this

[00:24:02] Speaker 00:
At least one way to read what Al-Ghaghi says, I'm just trying to figure out then how can you connect Khrushchev's transmitted funds to Fahzi Madoff, to HTS's specific efforts against the Syrian government?

[00:24:19] Speaker 00:
And isn't that what's required here?

[00:24:21] Speaker 01:
I don't think that sort of earmarking is what is required.

[00:24:25] Speaker 01:
I would point actually to the 11th Circuit decision in Arcila Gomez that they point to, because on remand in that case, the district court made the appropriate findings.

[00:24:36] Speaker 01:
And the facts of that case, I think, highlight the way that that problem can be addressed.

[00:24:42] Speaker 01:
The defendant there was providing weapons to ELN, which is a terrorist organization in Colombia.

[00:24:50] Speaker 01:
large drug organization.

[00:24:52] Speaker 01:
But his primary defense and the reason he said the enhancement didn't apply was he said this was a commercial transaction.

[00:24:58] Speaker 01:
I was mostly looking to get money for giving these guns and whether they were going to use these guns for their drug running efforts or for their efforts against the Colombian government.

[00:25:06] Speaker 01:
I didn't really care.

[00:25:07] Speaker 01:
But the 11th circuit affirmed the district court's finding on remand the enhancement was appropriately applied because the sort of natural result of this conduct that's what the calculated term I think is best read to mean and I know you were struggling with what it means to have not have a motive but to be calculated to do something and I think that's the best way of that I can think of to explain it that calculated deals with what is the likely results of your actions versus motive is why you're doing them.

[00:25:37] Speaker 01:
And it sets aside this possibility that you could come in and say, I was just doing it to get paid and for the money if.

[00:25:44] Speaker 01:
you were also, like we have here, admitting that you were doing it in response to being offended by the Syrian government's conduct.

[00:25:51] Speaker 00:
It seems like you, I mean, looking at the Second and the Fourth Circuit, I know you point out the Eleventh Circuit, like you might need to determine this calculation, you might need more of a plan or more specifics regarding, you know, that.

[00:26:09] Speaker 00:
I mean, obviously we say it's for the bomb attack,

[00:26:14] Speaker 00:
That's pretty clear, but here.

[00:26:17] Speaker 00:
I'm just trying to figure out where the evidence is that Khrushchev specifically intended his funds to go to HTS's military efforts against the Syrian government.

[00:26:33] Speaker 00:
That was calculated to achieve that object.

[00:26:38] Speaker 01:
Again, I would come back to we know that Khrushchev intended to influence the Syrian government with these funds.

[00:26:45] Speaker 01:
So that sort of sets aside the funds going to other opponents of HTS and then you look at what would HTS do with these funds not necessarily what fuzzy model would do with these funds because the reason Khrushchev was giving these funds to fuzzy model of was.

[00:27:01] Speaker 01:
to respond to the Syrian government's activities.

[00:27:05] Speaker 00:
I tried to look at the record on this and it seems to me, but maybe you can help me, the only time Khrushchev appears to mention the government, the Syrian government, is in his statement to the court about seeing the human rights abuses of the Russian and Syrian government and being motivated by that.

[00:27:25] Speaker 00:
And under al-Hukagi, which adopts the Second Circuit's reasoning in Awan, it seems like they're telling us the focus should be, or the appropriate focus is not on what reason or motive that the defendant has, but on whether Khrushchev's offense, giving the money here to Fazimanov, was calculated or planned to achieve the object of influencing the Syrian government.

[00:27:54] Speaker 00:
I know it sounds repetitive, but

[00:27:56] Speaker 00:
How is that been established or is there enough for the district court to have thought that it was to infer that that has established when Fahzi Murdoch used some of Khrushchev's money for media work and presumably some of Khrushchev's money could have gone, I mean, we don't know, to a motorcycle or a rifle.

[00:28:25] Speaker 00:
I guess HGS could have used the motorcycle rifle in its military defense over attacks from other terrorists or non-governmental groups.

[00:28:34] Speaker 00:
We don't know that it went for the Syrian government.

[00:28:38] Speaker 01:
So on the motorcycle, Fazi Madoff did say that the motorcycles were for Mujahids.

[00:28:43] Speaker 01:
But again, I don't want to get hung up on those particular facts because I don't think that's where your question's going.

[00:28:48] Speaker 01:
The best response that I can give is to contrast this case with a hug because the interesting sort of unusual thing about a hug is yes he had these statements about supporting ISIS but at the same time he had made a bunch of other statements exactly the opposite and what the court in a hug he said particularly because it was applying the.

[00:29:08] Speaker 01:
clear and convincing standard at the time was that there wasn't sufficient evidence that Al-Haggagi actually wanted ISIS to succeed in any of its efforts.

[00:29:16] Speaker 01:
He was just trying to bolster his credibility in order to be allowed to continue bothering people in these chat rooms.

[00:29:23] Speaker 01:
And that this was entirely apart from ISIS's activities.

[00:29:27] Speaker 01:
And the court rejected the factual finding that Al-Haggagi was trying to promote ISIS or help it achieve its goals.

[00:29:34] Speaker 01:
Versus here, we know that Khrushchev wanted

[00:29:37] Speaker 01:
to help HDS help achieve their goals.

[00:29:41] Speaker 01:
I want to very briefly touch on Khrushchev's second and third claims while I have a little bit of time.

[00:29:48] Speaker 01:
On the government piece, I think that this can pretty simply be resolved by applying the standard statutory principle that when there's an undefined term, you apply the term's ordinary meaning.

[00:29:59] Speaker 01:
And Khrushchev doesn't dispute that principle.

[00:30:02] Speaker 01:
that the ordinary meaning definitions that we've set forth in our brief are the appropriate ones for the government and crucial to that is recognition is not an element of any of those definitions.

[00:30:12] Speaker 01:
It's as Judge Miller pointed out the ability to exercise governing power over a territory.

[00:30:19] Speaker 01:
Now there may be some more difficult hypotheticals on the edges of that definition, but for purposes of this case,

[00:30:26] Speaker 01:
The Assad regime is not one of those difficult hypotheticals.

[00:30:29] Speaker 01:
And you only have to look to Khrushchev's lead authority on this issue, the National Defense Authorization Act, where it refers to the Assad government in saying, we will not recognize it.

[00:30:41] Speaker 01:
And that, I think, lends further credence to the ordinary meaning of government does not hinge on this three-factor test that Khrushchev has asked this court to adopt.

[00:30:51] Speaker 01:
And then finally on the adequacy of the district court's explanation, I would simply point the fact point this court to the fact that we've been discussing at great length the particular statements that Khrushchev made and that's because the district court cited those.

[00:31:05] Speaker 01:
Specifically as its reason for making the finding that it did and that's why I think that there's sufficient Explanation here to permit appellate review particularly given the plain-error standard that this court would apply if the court doesn't have any further questions I would urge the court to affirm So

[00:31:33] Speaker 02:
There was no statement of purpose by Mr. Khrushchev with respect to the funds.

[00:31:36] Speaker 02:
The statement in the pre-sentence report that the government refers to concerns Russia.

[00:31:42] Speaker 02:
And the sentencing judge did not make findings with respect to Russia at the sentencing hearing.

[00:31:47] Speaker 04:
I think to the extent that this court maybe isn't... What do you make of the statement that he knew, well, we just quoted, it was wrong to give him money because he was doing more than media activism.

[00:31:59] Speaker 04:
He was raising money for the wrong things.

[00:32:01] Speaker 02:
Right, so that goes to the knowledge enhancement, Your Honor.

[00:32:04] Speaker 02:
It does not go to the specific intent enhancement, the knowledge enhancement, the having reason to believe and knowing one.

[00:32:12] Speaker 02:
It does not, however, and is not a statement about Mr. Khrushchev's purpose in providing the funds.

[00:32:17] Speaker 02:
In addition, this court is absolutely correct.

[00:32:21] Speaker 02:
HTS was engaged in conflict with many other entities, including ISIS at the time.

[00:32:25] Speaker 02:
And the funds could have gone to many other purposes.

[00:32:28] Speaker 02:
We also don't have any idea.

[00:32:29] Speaker 02:
where the funds went to this is an attempt case so there's no way of kind of knowing what purpose they were sent to.

[00:32:37] Speaker 02:
And ultimately, to the extent this court has questions or is sort of uncertain about which statements matter, what findings were made, what specific conduct was being retaliated against, coerced or intimidated, I think remand to the district court for a new sentencing hearing is appropriate.

[00:32:55] Speaker 02:
And then we can generate more kind of robust factual findings.

[00:32:59] Speaker 02:
Unless there are further questions, I will rest.

[00:33:02] Speaker 02:
Thank you.

[00:33:03] Speaker 00:
Thank you very much.

[00:33:05] Speaker 00:
Mr. Fish, Mr. Chen, Mr. Menta, appreciate your arguments here today.

[00:33:13] Speaker 00:
The case of United States versus Marat Khrushchev is now submitted.

[00:33:18] Speaker 00:
That concludes our docket for today.

[00:33:21] Speaker 00:
We are adjourned.

[00:33:22] Speaker 00:
Thank you.