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United States v. Muhtorov

United States District Court, D. Colorado

August 30, 2018




         On January 21, 2012, Defendant Jamshid Muhtorov was arrested at O‘Hare Airport in Chicago as he attempted to board a flight to Istanbul, Turkey, with a one-way ticket. In his possession were $2, 865 in cash, two new iPhones, a new iPad, and his personal cellphone containing numerous terrorist propaganda videos. The government had previously intercepted statements by Muhtorov that he intended to travel to the "wedding" or the "wedding house" from Turkey and that he desired to support the Islamic Jihad Union (IJU), a designated foreign terrorist organization. From his intercepted conversations, it is apparent that Muhtorov frequently used the word "wedding" in association with violent jihad and in relation to the activities of the IJU.

         On June 21, 2018, a jury found Muhtorov guilty of three counts of providing material support to a foreign terrorist organization under 18 U.S.C. § 2339B, namely (1) conspiring and (2) attempting to provide $300 to the IJU, and (3) providing or attempting to provide himself as personnel to that same organization. The jury acquitted Muhtorov of a fourth material support count-attempting to provide communications equipment and services to the IJU.

         Muhtorov‘s codefendant, Bakhtiyor Jumaev, was also found guilty of (1) conspiring and (2) attempting to provide material support in the form of $300 to the IJU. A little over a month ago, I sentenced Jumaev to the 76 months and 3 days he had already spent in detention. See United States v. Jumaev, No. 12-cr-00033-JLK, 2018 WL 3490886, at *21 (D. Colo. Jul. 18, 2018). In doing so, I stressed that Jumaev‘s conduct placed him among the least culpable offenders who have been convicted under the material support statute. See Id. That is not the case with Muhtorov, however. Muhtorov was calculated and at times devious. He encouraged others, including Jumaev, to support the IJU and terrorist ideals generally. He also swore his allegiance to the IJU and told his daughter to pray that he become a martyr. Still, Muhtorov‘s actions do not come close to the severity of those of the most culpable offenders. Like Jumaev, he did not plot to commit specific acts of violence, nor did he engage in planning acts of violence in the United States. Nor does the evidence reveal any concrete path known to or established by Muhtorov to achieve his intended goal of supporting the IJU. Indeed, he was a self-described braggart who craved attention and admiration from others, making the resoluteness of his actions and intentions questionable.

         In examining Muhtorov‘s individual circumstances and reaching the conclusions detailed below, I have considered the initial and revised Presentence Investigation Reports (ECF Nos. 1929 and 1957) and Muhtorov‘s Objections (ECF No. 1951) and the Addendum (ECF No. 1958) to the Report. I have reviewed as well the government‘s Amended Sentencing Statement (ECF Nos. 1944-1, 1944-2), Muhtorov‘s Sentencing Statement (ECF No. 1949), his Supplement thereto (ECF No. 1950), his Memorandum Regarding Sentencing Guidelines (ECF No. 1918), his Motion for Variant Sentence and Downward Departure (ECF No. 1955), the letter from him as a Supplement thereto (ECF No. 1956-1), and the government‘s eleventh-hour Response to Muhtorov‘s filings (ECF No. 1961) that I have stricken. Before deciding the appropriate sentence, I have also listened to and reflected on the statements of the prosecution and defense counsel and Muhtorov‘s allocution.



         Muhtorov was born in 1976 in Jizzakh, Uzbekistan, which at that time was part of the Soviet Union. His mother was a teacher and his father a surgeon. He was the eldest of five siblings-three boys and two girls.

         In 1991, when Muhtorov was about 15, the Soviet Union collapsed, and Islam Karimov became the President of Uzbekistan. Steven Swerdlow, an expert on the human rights history of Uzbekistan, described the country‘s human rights record under Karimov as "atrocious" and "abysmal," commenting that it was "by far one of the worst and most repressive situations of human rights on earth." Trial Tr. at 1429:6-12. During this time, the Uzbek government stamped out free expression, imprisoned thousands of people on false charges, and tortured detainees. Id. at 1429:21-1431:14. Uzbekistan further promulgated some of the world‘s most restrictive laws on religion, under which individuals were forced to practice their religion within the strict confines required by the Uzbek government. Id. at 1437:3-13.

         Under these circumstances, Tohir Yuldashev and Juma Namangani formed the Islamic Movement of Uzbekistan (IMU) with the purpose of toppling Islam Karimov‘s regime. Trial Tr. at 168:5-25. The Islamic Jihad Union, the organization Muhtorov sought to support, splintered from the IMU in late 2001 or early 2002, seeking to focus its efforts globally instead of on Uzbekistan alone. Trial Tr. at 161:20-21, 167:11-13. The IJU has been affiliated with al-Qaeda and the Taliban and has fought U.S. and coalition forces in Afghanistan. Trial Tr. at 162:14-17, 163:1-5, 169:12-19. In its heyday around 2006, the organization had about 100 to 200 members, but its numbers dwindled substantially after that time. Trial Tr. at 202:17-19, 203:13-16.

         Muhtorov went on to attend a polytechnical university and to graduate with a degree in construction engineering. In 2001, he married his wife Nargiza and went to work for the Uzbek human rights organization Ezgulik. As a human rights advocate, Muhtorov fought to protect farmers‘ rights, appearing in court and meeting with representatives from various non-governmental organizations and foreign embassies.

         On May 13, 2005, in the Uzbek city of Andijan, government troops opened fire on a peaceful protest. It is estimated that between 700 and 1, 000 people were killed at what has become known as the "Andijan Massacre". Afterwards, Muhtorov publicized reports from the incident and spoke out in opposition to the Uzbek government‘s actions. As a result of this advocacy, he was beaten on two occasions. The second time, in November 2005, his nose was broken and he lost consciousness. Muhtorov‘s family paid a hefty price for his work as well. His mother and his brother, Hurshid, were terminated from their jobs, and his sister and father were arrested.

         Eventually, Muhtorov believed the threat from the Uzbek government was serious enough that he fled to Kyrgyzstan. His wife and two children joined him there. During the months he lived in Kyrgyztan, Muhtorov began researching the various sects of Islam, including the Hizb ut-Tahrir, Tabligh, and Akromiya sects. He continued his inquiry in the years that followed, studying the Salafi sect and ultimately embracing his curiosity about terrorist sects. He had never been permitted to explore such interests in Uzbekistan.

         While in Kyrgyzstan, Muhtorov and his family applied for and were granted admission to the United States as political refugees. In February 2007, they moved to Denver, Colorado, where he found employment first as a janitor in a casino and then in a meat packing plant. In search of a better-paying job, he decided to obtain his commercial truck driver‘s license, which led him to meet Jumaev. In December 2009, a friend of Muhtorov arranged for him to stay in Jumaev‘s apartment in Philadelphia, Pennsylvania, while he studied to take his commercial license exam.

         Jumaev and Muhtorov had similar backgrounds. Both were from Uzbekistan and had come to the United States after experiencing brutality at the hands of the Uzbek authorities. Over the months that passed after Muhtorov returned home, they developed a long-distance friendship in which they discussed a wide variety of topics, including their families, Islam, current events, and the immigrant experience in the U.S. They also conversed about the IJU and the IMU, the history of those terrorist organizations, and related propaganda videos they found online. In speaking about these organizations, they often used ambiguous code words, like wedding, resort, Switzerland, alpinists, and sportsmen. Muhtorov also took the precaution of employing anonymizers[1] to access terrorism-related websites and instructed Jumaev how to do the same. Gov‘t Trial Ex. 19A at 3-7.

         From 2009 to his arrest in this case, Muhtorov communicated over the internet with the website administrator for, the the IJU‘s website. Trial Tr. at 1250:4-7. Muhtorov developed such a relationship with the website administrator that he sent pictures of his young children and of himself with a beard. Gov‘t Trial Exs. 111A at 1, 116A at 1, 116B at 1, 530 at 1, 530A at 1.

         In February 2010, Jumaev was detained by U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) for overstaying his visa. Jumaev borrowed money from friends and acquaintances to pay his bond, including $500 from Muhtorov. After his arrest, Jumaev struggled to manage his and his family‘s debts, so he did not pay Muhtorov back for many months.

         Muhtorov repeatedly hinted to Jumaev about his need to at least partially repay the loan. By March 2011, Muhtorov informed the IJU that "Abu Bakr," Jumaev‘s moniker, had promised to send him $300 for the organization. Gov‘t Trial Ex. 107A at 2. Muhtorov then relayed to Jumaev that the IJU had written him that it was in dire need of financial support. Gov‘t Trial Ex. 125A at 2. Jumaev gathered $300 and used a friend‘s check to send the money to Muhtorov. After a few days passed, Jumaev pressed Muhtorov on whether he had received the "wedding gift." Gov‗t Trial Ex. 128A at 1. Shortly after, the check was delivered.

         Although Muhtorov‘s wife spent the $300 from Jumaev on their family‘s expenses, Muhtorov continued to tell others about Jumaev‘s "wedding gift" for the IJU. Muhtorov informed the website administrator for the IJU that a brother had sent him a $300 "wedding gift" and asked what he should do with it. Gov‘t Trial Ex. 112A at 1. Similarly, he told a Confidential Human Source for the FBI that a brother had sent him $300 for the IJU, but the IJU would not tell him how to get the money to it. Gov‘t Trial Ex. 157A at 7.

         Soon after receiving Jumaev‘s check, Muhtorov emailed the IJU website administrator an oath of allegiance stating that he would perform any task for the organization even if it meant risking death. Gov‘t Trial Ex. 107A at 1.[2] The evidence shows that the IJU only ever requested that he upload and distribute terrorist propaganda materials and help them to acquire satellite internet equipment. Gov‘t Trial Exs. 100A at 2, 101A at 1, 105A at 2, 109A at 1-3, 118A at 1, 124A at 1. Instead of carrying out the assignments himself, Muhtorov sought assistance from the FBI Confidential Human Source. Gov‘t Trial Exs. 121A at 1, 157A at 2-11, 158A at 2, 162A at 16-22, 167A at 13-14.

         Muhtorov frequently sent money to his parents and his brother Hurshid, who was in Kazakhstan attempting to obtain refugee status in Canada. Muhtorov‘s parents urged him to assist his brother with the immigration process. In August 2011, Muhtorov told Hurshid:

You will go to Istanbul Turkey. I will talk to the brothers and solve your living arrangements and other things. We will submit your documents there. You will have an interview. I will find all your documents there . . . . There is an Islamic school there. You will study for 45 days and then you will leave . . . . You will come to America. You will come with my documents. Do you understand? You will come here as Jamshid.

Def. Trial Ex. 697A at 7.

         On January 16, 2012, Muhtorov purchased a one-way ticket to Istanbul, Turkey, that was to depart five days later. He told countless contradictory stories about the length, destination, and purpose of his trip to every listening ear he could find. In a call to his pregnant wife on January 19, 2012, he instructed her to prepare to leave the U.S. by filing for their tax refund as soon as possible, selling their furniture, and buying tickets for her and the children to meet him in Turkey. Gov‘t Trial Ex. 152A at 24, 33. Shortly before that call, he reminded his eight-year-old daughter: "Remember, I told you to pray for your Daddy to become a martyr . . . Don‘t pray, ‗Don‘t let him leave!‘ It will be a curse for me . . . . Pray and say, ‗Make my father a martyr, one of real martyrs.‘" Gov‘t Trial Ex. 146A at 1.

         Muhtorov discussed his travel plans with Jumaev for months until Jumaev complained: "Sir[, ] I envy you. You too are leaving to a wedding. I want to go to the wedding, too." Gov‘t Trial Ex. 131A at 3. Less than two weeks before Muhtorov was to travel, Jumaev told him: "You are going to die either way. You are going to die here as it is and you are going to die there as it is. What‘s the difference? The only one difference is that death over there is better!" Gov‘t Trial Ex. 149A at 26. Muhtorov responded: "It is so." Id.

         To his friend Mustafa, Muhtorov claimed he would not be coming back from Turkey even though he had led his wife to believe he would. Gov‘t Trial Ex. 153A at 6-7. To the Confidential Human Source, Muhtorov first explained that he would leave for Turkey and take his family along, placing his children in a madrasa there while he determined how to proceed further. Gov‘t Trial Ex. 156A. As he became more eager to travel, Muhtorov described his feeling to the Source, saying: "[I]f God is protecting me now, then He will protect me at the wedding house as well . . . . I can‘t help it. I‘m getting so excited." Gov‘t Trial Ex. 166A at 3. Then, days before leaving, he reported to the Source that the IJU wanted him to work in the propaganda and recruitment unit and not to "deploy to the wedding." Gov‘t Trial Ex. 168A at 12.

         Muhtorov told his former employer that he was going to Istanbul to help his brother and asked if he would be able to get his job back. He did not say, however, that he would in fact be returning. Trial Tr. at 1414:21-1415:9, 1416:9-12. In contrast, he indicated to the taxi driver who drove him to the airport that he would only be gone for ten days to two weeks. Trial Tr. at 801:10-13.

         So as not to "have all kind of problems at the airport," Muhtorov shaved off his beard before his flight. Gov‘t Trial Ex. at 9. On January 21, 2012, the day he was to fly out, he hired a taxi driver to spend three to four hours driving him around Chicago. At Muhtorov‘s direction, they went to Best Buy so he could purchase an iPad, to a mosque, to an Arabic restaurant, to an Apple Store where he picked up two new iPhones, and then to the airport. He paid the driver $600.

         Muhtorov was arrested that afternoon at O‘Hare Airport in Chicago. In his possession were $2, 865 in cash and the two new iPhones and iPad. His luggage contained suits, bags of candy, immigration forms, documents regarding his work with Ezgulik, and a letter from Jewish Family Service of Colorado, among other items. He was also carrying his cellphone, on which he had downloaded many violent terrorist propaganda videos. After being advised of his rights, he admitted to FBI agents that he knew the IJU was a terrorist organization and that he had been in communication with the IJU website administrator.

         At trial, Muhtorov testified on his own behalf. His counsel advanced the argument that he was playing "Jamshid the jihadi warrior" out of boredom and did not intend to follow through with his claims or actually support terrorism. His testimony supported this claim to some extent, but otherwise, provided no clear narrative regarding his actions.[3] In his testimony, he acknowledged he had the same principal goal as the IJU-to overthrow the Uzbek regime, specifically that of Islam Karimov, and he claimed he only communicated with the IJU and downloaded their videos to discover their strategy towards Uzbekistan. Trial Tr. at 1222:18-1223:16.



         I begin by calculating the applicable U.S. Sentencing Guidelines range for Muhtorov. I do so because I must, see Gall v. United States, 552 U.S. 38, 49 (2007), even though-as I have previously notified the parties and explained in sentencing Jumaev-I find the Guidelines illogical and inadequate in this case. See Jumaev, 2018 WL 3490886, at *8-13. Even if the following calculation is in error, however, it has no impact on the ultimate sentence. See United States v. Sabillon-Umana, 772 F.3d 1328, 1334 (10th Cir. 2014) (acknowledging that remanding for resentencing does not help the defendant or enhance the integrity of judicial proceedings when a district judge analyzes a case under alternative theories and indicates he or she would arrive at the same sentencing conclusion either way); United States v. Gieswein, 887 F.3d 1054, 1062-63 (10th Cir. 2018).[4]

         A. Calculation of Guidelines Range

         U.S. Sentencing Guideline (U.S.S.G.) § 2M5.3(a) sets the Base Level for a conviction under 18 U.S.C. § 2339B at 26. Muhtorov‘s three counts are grouped together under the Guidelines because they involve a common criminal objective and constitute part of a common scheme or plan. See U.S.S.G. § 3D1.2. Muhtorov has no known criminal history, making his Criminal History Category I. Without any specific offense characteristics increase, adjustments, or departures, Muhtorov‘s Guidelines range is 63 to 78 months‘ imprisonment.

         The Guideline for convictions under 18 U.S.C. § 2339B provides for a two-level increase "[i]f the offense involved the provision of (A) dangerous weapons; (B) firearms; (C) explosives; (D) funds with the intent, knowledge, or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C); or (E) funds or other material support or resources with the intent, knowledge, or reason to believe they are to be used to commit or assist in the commission of a violent act . . . ." U.S.S.G. § 2M5.3(b)(1).

         Muhtorov contests the application of this increase. I find the government has demonstrated by a preponderance of the evidence that it is applicable. Muhtorov cites United States v. Dhirane, Nos. 17-4205, 17-4226, 2018 WL 3421085, at *7 (4th Cir. July 16, 2018), to emphasize that he must have known or had reason to believe that his support-$300 and providing himself as personnel-"would be used to assist in acts of violence by the terrorist organization." Muhtorov Sentencing Statement at 17-18. In focusing on the "would be used" portion of that statement, Muhtorov loses the significance of the word "assist." As found by Congress and endorsed by the Supreme Court, "[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Holder v. Humanitarian Law Project, 561 U.S. 1, 47 (2010) (quoting Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 301(a)(7), 110 Stat. 1247, note following 18 U.S.C. § 2339B (Findings and Purpose)). Muhtorov knew or had reason to believe that the $300, even if it went to feed the orphans of IJU fighters, would "assist" in acts of violence by freeing up other money to support that cause. Likewise, he knew or had reason to believe that offering himself as personnel to the organization, even as a propagandist or recruiter, would "assist" others in the organization to engage in violent activity. Therefore, Muhtorov‘s offense level is subject to a two-level increase under U.S.S.G. § 2M5.3(b).

         The Guidelines inquiry does not end there; the facts of this case and the parties compel me to consider numerous other adjustments and departures. First, I must evaluate the application of the so-called Terrorism Enhancement found in U.S.S.G. § 3A1.4. Since the government again contends the Obstruction of Justice Enhancement in § 3C1.1 is applicable, I must also iterate the unmet requirements of that provision. After resolving those issues, I consider Muhtorov‘s requests to reduce his offense level for acceptance of responsibility and depart based on his lack of criminal history, his prior good works and commitment to public service, and the immigration consequences he faces.


         1. § 3A1.4: Terrorism Enhancement

         The Terrorism Enhancement in U.S.S.G. § 3A1.4 provides:

(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant‘s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.

U.S.S.G. § 3A1.4. Thus, the Enhancement functions by both increasing the offense level at least 12 levels and moving the defendant to the highest Criminal History Category.

         It applies when the predicate offense either "(1) ‗involve[s]‘ a federal crime of terrorism or (2) [is] ‗intended to promote‘ a federal crime of terrorism." United States v. Awan, 607 F.3d 306, 313 (2d Cir. 2010). A "federal crime of terrorism" is defined, for the purposes of the Enhancement, as "an offense that-(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of-[a list of enumerated offenses, including] (i) section . . . 2339B (relating to providing material support to terrorist organizations) . . . ." Application Note 1 to U.S.S.G. § 3A1.4; 18 U.S.C. § 2332b(g)(5).

         I first consider whether Muhtorov‘s predicate offenses "involve" a federal crime of terrorism. Since his offenses are enumerated in 18 U.S.C. § 2332b(g)(5)(B), I need only find that they were "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." 18 U.S.C. § 2332b(g)(5); Awan, 607 F.3d at 316-17. "‗Calculation‘ is concerned with the object that the actor seeks to achieve through planning or contrivance . . . Section 2332b(g)(5)(A) does not focus on the defendant but on his ‗offense, ‘ asking whether it was calculated, i.e., planned-for whatever reason or motive-to achieve the stated object." Awan, 607 F.3d at 317. I find by a preponderance of the evidence that Muhtorov had the specific intent to influence the Uzbek government by providing the IJU with $300 and himself as personnel.

         At trial, Muhtorov admitted he had the goal of overthrowing the Uzbek regime and was interested in the IJU because they had the same goal. Trial Tr. at 1222:18-1223:1. He communicated with the IJU‘s website administrator for years, eventually offering to assist with any task even if he had to risk death. He enrolled others in his schemes with the IJU, including Jumaev and the FBI Confidential Human Source. He used anonymizers and code words. For nearly a year before setting his plans in motion, he discussed his travels to Turkey, all the while waiting for an "invitation to the wedding". He then shaved his beard immediately before he embarked to avoid trouble in the airport. He was calculated.

         Even if Muhtorov did not directly intend to influence, affect, or retaliate against a government, which I find he did, his offenses "intended to promote" the commission of federal crimes of terrorism by others, namely IJU members. "[A]n offense is ‗intended to promote‘ a federal crime of terrorism when the offense is intended to help bring about, encourage, or contribute to" such a crime. Awan, 607 F.3d at 314. I find Muhtorov‘s conspiracy and attempt to provide $300 and his attempt to provide himself as personnel were carried out with the intent to encourage or contribute to the IJU‘s commission of federal crimes of terrorism. Muhtorov had in-depth knowledge of and supported the IJU‘s mission and activity. See, e.g., Gov‘t Trial Ex. 125A at 2-3; Trial Tr. at 1222:24-1223:1. He knew what the organization was up to, i.e., federal crimes of terrorism, and he endeavored to assist it.

         Thus, Muhtorov‘s offenses qualify under either prong of the Terrorism Enhancement. As the Enhancement requires, his offense level is subject to a 12-level increase and he is placed in Criminal History Category VI.

         2. § 3C1.1: Obstruction of Justice Enhancement

         The government argues, as it did for Jumaev‘s sentencing, that the Obstruction of Justice Enhancement in U.S.S.G. § 3C1.1 mandates that I increase Muhtorov‘s offense level by two levels. The enhancement is only applicable if the government demonstrates by a preponderance of the evidence that:

(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant‗s offense of conviction and any relevant conduct; or (B) a closely related offense . . . .

U.S.S.G. § 3C1.1. The government highlights two examples of conduct covered by the adjustment-committing perjury "if such perjury pertains to conduct that forms the basis of the offense of conviction" and "providing materially false information to a judge or magistrate judge." Application Note 4 to U.S.S.G. § 3C1.1.

         To establish that Muhtorov has committed perjury for the purposes of the Enhancement, the government must show his conduct fulfills the elements of the criminal statute. "A witness testifying under oath or affirmation violates [the criminal perjury statute] if []he gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993). Additionally, as observed in United States v. Massey, 48 F.3d 1560, 1573 (10th Cir. 1995), "it has long been a requirement in the Tenth Circuit that the perjurious statement be identified, at least in substance." The government claims Muhtorov‘s perjurious statements are: "that the $300 payment from JUMAEV was repayment of a debt and not intended for the IJU; that he continued assisting the IJU in order to earn their trust as part of carrying on a fantasy persona; and, that he did not travel in order to join the IJU." Gov‘t‘s Am. Sentencing Statement at 12, ECF No. 1944-1. The government argues that the jury‘s verdict demonstrates that it rejected Muhtorov‘s testimony on these matters.

         However, the Supreme Court has cautioned: "[N]ot every accused who testifies at trial and is convicted will incur an enhanced sentence under § 3C1.1 for committing perjury . . . . [The accused‘s] testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or to prove lack of intent." Dunnigan, 507 U.S. at 95. The prosecution demands I dismiss Muhtorov‘s statements as fabrication. I am unwilling to do so and have no legal basis to conclude the jury did. The facts were fairly uncontested, and there is no indication that Muhtorov had the willful intent to provide false testimony. His defense propounded the legitimate question: Was he engaging in make-believe and only posing as a violent jihadist ...

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