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Circuit Affirms Conviction of Al Qaeda Member Who Claimed He Was Denied His Right to Self-Representation

On April 24, 2019, the Second Circuit issued a per curiam decision in United States v. Hausa (Kearse, Jacobs, and Hall) affirming the conviction of Ibrahim Hausa—a member of Al Qaeda known as Spin Ghul (the “White Rose”)—on charges related to his participation in attacks on United States and coalition forces in Afghanistan, which resulted in the deaths of two U.S. soldiers.

On appeal, Hausa principally argued that he was denied his Sixth Amendment right to represent himself.  He also argued that his conviction for conspiring to murder U.S. nationals in violation of 18 U.S.C. § 2332(b)(2) should be reversed because the government failed to prove that this conspiracy occurred within the United States.  The Court readily disposed of both these arguments in a brief opinion.

Background

Hausa fought against U.S. and coalition forces in Afghanistan as a member of Al Qaeda and freely admitted to participating in attacks against U.S. soldiers in interviews with law enforcement that were recorded after Hausa had waived his Miranda rights.  In particular, he recounted participating in an April 25, 2003 ambush in which he launched rockets, fired his machine gun, and threw grenades at U.S. soldiers.  That ambush resulted in the deaths of two U.S. soldiers.  Several other soldiers were seriously wounded.

Hausa eventually left Afghanistan and traveled to Nigeria, where he planned to expand Al Qaeda’s presence and bomb the U.S. Embassy.  While in Africa, Hausa fled to Libya with the intention of traveling to Europe to carry out additional terror attacks.  He was arrested in Tripoli and detained by Libyan authorities until 2011.  After his release, Hausa boarded a ship to Italy.  While on board, Hausa attacked law enforcement officers and was arrested by Italian authorities.  He was thereafter extradited to the United States to stand trial on five counts related to his attacks on U.S. soldiers: (1) conspiracy to murder U.S. nationals, in violation of 18 U.S.C. § 2332(b)(2); (2) conspiracy to bomb a government facility, in violation of 18 U.S.C. § 2332f; (3) conspiracy to provide material support to Al Qaeda, in violation of 18 U.S.C. § 2339B; (4) provision and attempted provision of material support to Al Qaeda, in violation of 18 U.S.C. § 2339B; and (5) illegal use of an explosive to commit a federal felony offense, in violation of 18 U.S.C. § 844(h).

During pretrial proceedings in the Eastern District of New York, Hausa expressed a desire to represent himself and in a series of conferences the district court sought to assess his competence to stand trial and his purported waiver of his right to counsel.  Each time the district court attempted to make this inquiry, Hausa obstructed the court’s efforts and disrupted proceedings by refusing to answer the court’s questions, shouting profanities at the judge, and demanding transfer to an unspecified international court.  At defense counsel’s urging, the district court held a competency hearing and found that Hausa was competent to stand trial after three psychiatric evaluations demonstrated that Hausa was able to assist in his defense if he wanted to do so.  The district court concluded that Hausa’s obstruction and refusal to answer the court’s questions were “deliberate and conscious.”

Despite finding Hausa competent to stand trial, the district court acknowledged that it had been unable to determine whether Hausa’s waiver of his right to counsel was “knowing and intelligent” because Hausa had refused to answer any of the court’s questions related to that inquiry.  The district court reduced its Faretta warnings to writing and asked Hausa to review them before the next conference, but Hausa refused to accept the copy of the warnings.  Eventually, Hausa refused to attend any further court proceedings.  On one subsequent occasion when the marshals had to use force to bring Hausa to court, he tore off all of his clothes while en route to the court (despite being shackled) so that he was left wearing nothing but underwear.

The district court denied Hausa’s request to proceed without counsel.  Hausa was convicted by the jury on all counts and sentenced to life imprisonment.

The Court’s Analysis

Recognizing that a defendant’s waiver of counsel must be made knowingly and intelligently, the Court observed that district courts should engage a defendant seeking such a waiver in an on-the-record discussion in order to ensure that the defendant understands the ramifications of that decision.  Although Hausa argued that his waiver was knowing and intelligent, the Court held that the trial court did not err in concluding that it was not possible to make that determination in light of Hausa’s conduct. 

The Court observed that the “chaotic atmosphere” that Hausa created through his obstructive conduct made it uncertain as to whether he paid attention to anything that the trial court said to him.  By refusing to answer any of the court’s questions aimed at assessing his understanding of the risks of self-representation, the Court found that Hausa was at fault in preventing the court from conducting its necessary inquiry.  Because the trial court was prevented by Hausa from fulfilling its obligation to ensure that Hausa’s waiver was knowing and intelligent, the Court held that there was no error in denying Hausa’s waiver.

The Court also noted that even if Hausa’s waiver had been knowing and intelligent, the trial court could have denied the waiver based on Hausa’s obstructive behavior.  In that regard, the Court remarked that the right to self-representation is not a license to abuse the dignity of the courtroom, as Hausa had done throughout pretrial proceedings.

Finally, the Court summarily rejected Hausa’s contention that a conviction under 18 U.S.C. § 2332(b)(2) requires evidence that the conspiracy to murder a U.S. national occurred within the jurisdiction of the United States.  The Court looked to the statutory text, which clearly applied to those who conspire to kill U.S. nationals “outside the United States.”

Discussion

The Court’s decision in Hausa does not announce any new rule of law.  It does, however, likely bring to a close the long saga involving Hausa, a man with personal connections to many senior Al Qaeda members.  See Ellen Nakashima, “A Person of Murderous Zeal”: Al-Qaeda Operative Given Life Sentence for Deaths of U.S. Troops, Wash. Post, Feb. 16, 2018.

The Court’s decision further reinforces the protections in the American legal system for all defendants, even those who seek to obstruct the administration of justice.  And it highlights the Court’s unwillingness to tolerate disruptive behavior, which may be why the Court ultimately observed that the district court was entitled to reject Hausa’s waiver of counsel based on his obstruction alone.  To be sure, there is a constitutional right to self-representation, but this does not encompass a right to disrupt the proceedings so thoroughly that the public’s interest in a fair and speedy trial cannot be guaranteed.  The Court reasonably understood Hausa’s behavior as a political statement made against the government and its courts, not as part of an attempt to defend against the serious charges in this case.