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United States v. Pugh

United States Court of Appeals, Second Circuit

August 29, 2019

United States of America, Appellee,
v.
Tairod Nathan Webster Pugh, Defendant-Appellant.

          Argued: February 4, 2019

          Appeal from the United States District Court for the Eastern District of New York. No. 15-cr-00116 - Nicholas G. Garaufis, Judge.

          Jo Ann M. Navickas, Samuel P. Nitze, Mark E. Bini, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee.

          Susan G. Kellman, Sarah Kunstler, Brooklyn, New York, for Defendant-Appellant.

          Before: Droney and Calabresi, Circuit Judges, and Underhill, Chief District Judge.[*]

         Appeal from a judgment of conviction and sentence of the United States District Court for the Eastern District of New York (Garaufis, J.). Pugh was charged with attempting to provide material support to a foreign terrorist organization (count one) and obstruction of justice (count two). At trial, the government admitted into evidence, over Pugh's objection, a draft letter that Pugh had purportedly written to his wife which, inter alia, professed his allegiance to the Islamic State. Pugh was convicted by a jury on both counts and sentenced to 180 months of incarceration on count one, and 240 months of incarceration on count two, the sentences to run consecutively, for a total effective sentence of 420 months of incarceration, the maximum allowable sentence. Pugh contends that the letter addressed to his wife should have been excluded from evidence pursuant to the marital communications privilege and, therefore, he is entitled to a new trial. Pugh also contends that neither of his two convictions was supported by sufficient evidence and, therefore, should be vacated. Lastly, Pugh contends that his sentence was procedurally and substantively unreasonable because the court (1) failed to sufficiently articulate its reasoning for imposing the statutory maximum sentence, and (2) failed to provide Pugh sufficient opportunity to address the court. We disagree with most of Pugh's arguments, but agree that further articulation of the sentence determination is required.

         Accordingly, we AFFIRM the district court's judgment of conviction, VACATE the sentence, and REMAND for resentencing.

         Judge Calabresi concurs in a separate opinion.

         Underhill, District Judge:

         Defendant-appellant Tairod Nathan Webster Pugh appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (Garaufis, J.), after a jury found him guilty of attempting to provide material support to a foreign terrorist organization and obstruction of justice. Pugh advances three arguments in this appeal: (1) the district court erred in denying his motion to exclude from evidence a draft letter purportedly written to his wife; (2) the evidence was insufficient to support either conviction; and (3) his sentence was procedurally and/or substantively unreasonable. We disagree with most of Pugh's arguments, but agree that the court's articulation of its reasoning for imposing the maximum permissible sentence was insufficient.

         Accordingly, the judgment of conviction is affirmed, the sentence is vacated, and the case is remanded for resentencing.

         BACKGROUND

         The jury could have found the following facts. Pugh is a United States citizen and Air Force Veteran who moved to the Middle East to work as a civilian contractor for different aerospace companies after he left the military. While living overseas, Pugh began researching the Islamic State of Iraq and the Levant ("ISIL" or "ISIS") and downloading propaganda materials, as well as discussing ISIS tactics and activities online via Facebook. While abroad, Pugh also met and married an Egyptian woman, referred to as "M.H.S." On January 10, 2015, Pugh flew from Cairo, Egypt to Istanbul, Turkey. Upon arrival at the Turkish airport, Pugh was denied entry into the country and apprehended by Turkish authorities. At the airport in Turkey, Pugh attempted to destroy, or succeeded in destroying, many of the electronic devices he was carrying with him, including a computer, multiple USB drives, and an iPod. Pugh was returned to Egypt where his electronic devices were given to the United States authorities. A search of his laptop revealed internet searches, videos, and pictures relating to ISIS and its presence in, inter alia, Turkey and Syria, as well as a letter purportedly drafted by Pugh to his wife in which he pledges his allegiance to ISIS. On January 15, 2015, Pugh was returned to the United States where he was briefly detained for questioning in Customs, and was released that day. He was arrested the next day at his father's home in New Jersey.

         Pugh was arraigned on March 18, 2015 on a two-count indictment charging him with attempting to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1) (count one); and obstruction and attempted obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(1) and (c)(2) (count two). Pugh pleaded not guilty and elected to go to trial. A seven-day jury trial was conducted, and at the close of the government's case, Pugh moved for a judgment of acquittal on both counts, pursuant to Federal Rule of Criminal Procedure 29. Pugh renewed his motion at the close of his case. The district court denied the motion on both occasions. On March 9, 2016, the jury found Pugh guilty on both counts, and he once again renewed his Rule 29 motion post-verdict, which the court again denied. Pugh was sentenced on May 31, 2017 to 180 months of incarceration on count one and 240 months of incarceration on count two, the maximum sentence under each statute[1], to run consecutively, for a total effective sentence of 420 months. This appeal followed.

         DISCUSSION

         Pugh filed the instant appeal in which he argues: (1) the district court erred in denying his motion to exclude a draft letter purportedly written to his wife; (2) the evidence was insufficient to support either conviction; and (3) his sentence was procedurally and/or substantively unreasonable. Additional facts will be set out below where necessary.

         I. Admission of the Letter

         Pugh argues first that the district court erred in denying his motion in limine to exclude, pursuant to the marital communications privilege, the use of a draft letter found on his laptop. We disagree.

         The following additional facts are relevant to this claim. Pugh, who speaks only English, met and married an Egyptian woman, M.H.S., who speaks only Egyptian Arabic. The couple communicated mostly via Facebook Messenger with the help of Google Translate and/or bilingual acquaintances who would translate messages between the pair. When Pugh's laptop was searched, pursuant to a search warrant, authorities found a saved document which purported to be a draft letter, addressed to M.H.S., which the parties refer to as the "My Misha Letter." In the letter, Pugh expressed a desire to "use [his] talents and skills … to establish and defend the Islamic State." App'x at 55. Further, the letter states, in relevant part: "I will escort you into Paradise and when you see the home paid for by my blood and your tears you will know it was all worth it"; "I defied my friends and family to become a Muslim, now I will defy Muslims to be a Mujahid[2]"; and "I am a Mujahid. I am a sword against the oppressor and a shield for the oppressed." Id.

         Pugh's attorney moved to preclude the draft letter pursuant to the marital communications privilege. The government, in opposition, argued that Pugh failed to establish that the letter was protected by the privilege because: (1) Pugh failed to establish that his Egyptian marriage would be recognized by the United States; (2) Pugh failed to establish that he intended the draft letter to be a marital communication; and (3) because Pugh and M.H.S. needed the assistance of interpreters to communicate, the letter was not intended to be kept confidential, even if Pugh did intend to send it.

         The district court issued a ruling on February 12, 2016 in which it rejected the government's argument that there was no marital privilege because Pugh's marriage was not valid or, even if it was valid, the couple was separated, breaking the privilege. Ultimately, though, the court denied Pugh's motion and found the "My Misha Letter" admissible for two reasons: (1) the draft letter was not intended to be a communication; and (2) even if it was, it was not intended to be confidential. The court determined that Pugh failed to establish that he intended to send the draft letter to his wife and, therefore, it was not a communication. As support, the court highlighted that Pugh and his wife routinely communicated via Facebook, and that there was "no indication that Pugh even once, much less regularly, typed his messages using a program on his laptop and then copied them into Facebook." App'x at 87. Further, the court stated that there was "no indication that Pugh had sought to have the letter translated (either by a third-party or using translation software), as would have been required for M.H.S. to understand the document." Id. The court further found that "the draft letter [was] inconsistent with Pugh's professed reasons for travelling to Turkey," to find employment. Id.

         Alternatively, the district court found that, even if the draft letter was intended to be a communication, it was not intended to be kept confidential. The court concluded that using "an ad hoc network of informal translators destroys the marital communication privilege" and is "inconsistent with the scope of the marital communications privilege." App'x at 95, 99. As support, the court found that the letter, if sent, was likely to be translated by a translator, rather than Google Translate, given its length and contents, and that the couple was "unlikely to employ a trusted, confidential translator" to translate the message for them. Id. at 90- 91. The court determined that "where a married couple evidences an intent to disclose communications to an ad hoc network of family, friends, and strangers for translation, the privilege is forfeited." Id. at 92.

         On appeal, Pugh argues that the district court erred in both of its determinations: that the letter was not a communication and, even if it were, that the letter was not intended to be confidential.

         The parties disagree about the standard of review we should apply in reviewing the district court's ruling. The government asserts that a claim of privilege should be reviewed for abuse of discretion. Pugh asserts that the applicable standard of review is that which applies to a denial of a suppression motion: factual findings are reviewed for clear error, and legal conclusions are reviewed de novo. We need not decide which standard applies, because the tests are very similar and lead to the same result in this case.

         "A court abuses its discretion if (1) it relies on an erroneous view of the law, (2) its decision rests on a clearly erroneous finding of fact, or (3) its decision-though not necessarily the product of a legal error or a clearly erroneous factual finding-cannot be located within the range of permissible decisions." United States v. Yannai, 791 F.3d 226, 242 (2d Cir. 2015). A review of the district court's evidentiary rulings is deferential. United States v. Hendricks, 921 F.3d 320, 326 (2d Cir. 2019). Issues of law are reviewed de novo. United States v. Sewell, 252 F.3d 647, 650 (2d Cir. 2001). Questions of fact are reviewed for "clear error," which is "deferential" and "does not entitle [a reviewing court] to overturn a finding simply because [the court is] convinced that [it] would have decided the case differently." Glossip v. Gross, 135 S.Ct. 2726, 2739 (2015) (internal quotation marks omitted).

         "[T]he applicability of a privilege is a factual question, [but] determining the scope of a privilege is a question of law." United States v. Mejia, 655 F.3d 126, 131 (2d Cir. 2011) (internal quotation marks omitted). The distinction, then, is "whether the district court based its decision on a consideration of the application of the privilege to the communication or on an understanding of the privilege's scope." Id. A determination is factual when it "involves the application of the … privilege as our case law has already developed it to the novel set of facts before us … [rather than] address[ing] the scope of the privilege itself in a novel way." Id. (question of whether communicating through client's sister waived attorney-client privilege was factual).

         "The confidential communications privilege … [shields] communications made in confidence during a valid marriage…." In re Witness Before Grand Jury, 791 F.2d 234, 237 (2d Cir. 1986). The purpose of the privilege is to provide "assurance that all private statements between spouses-aptly called the best solace of human existence-will be forever free from public exposure." Id. (internal citations and quotation marks omitted). Courts have noted, however, that "privileges contravene the fundamental principle that the public … has a right to every man's evidence…. As such, they must be strictly construed and accepted only to the very limited extent that … excluding relevant evidence has a public good transcending the ...


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