United States v. Ullah

Summary

The United States Court of Appeals for the Second Circuit partially reverses, partially affirms, and remands Akayed Ullah’s criminal judgment arising from a 2017 subway-tunnel bombing in Manhattan. The court reverses the conviction under 18 U.S.C. § 2339B because the evidence did not establish that Ullah provided material support to ISIS under the statute’s personnel or service theories. It affirms convictions under 18 U.S.C. § 1992(a)(2) and § 924(c), concluding that the evidence supported the mass-transportation conviction and that any potential Yates error concerning the predicate crime of violence did not affect substantial rights.

Holdings

1. The evidence was insufficient to sustain Ullah's Count One conviction under either the personnel or service theory because his independent, lone-wolf attack, even though inspired by ISIS propaganda and intended to advance ISIS's goals, was not coordinated with or performed under ISIS's direction or control.
2. A person places a destructive device in, upon, or near a mass transportation vehicle by affixing the device to the person's body and boarding and riding the vehicle with it.
3. The government did not constructively amend the indictment by relying on the theory that Ullah placed the bomb on a subway while riding it.
4. The completed offense of unlawfully delivering, placing, discharging, or detonating an explosive in a public place or public transportation system with intent to cause death or serious bodily injury is categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A).
5. Even assuming the Count Six verdict was legally erroneous because the jury may have relied on both proper and improper predicate offenses, the error did not affect Ullah's substantial rights because the evidence established beyond a reasonable doubt that a rational jury would have convicted him based on the completed § 2332f(a)(1)(A) offense.
6. The district court did not commit reversible procedural error, and Ullah's sentence was substantively reasonable.

Questions Presented

1. Whether the evidence was sufficient to prove that Ullah provided or attempted to provide material support to ISIS as personnel or a service under 18 U.S.C. § 2339B.
2. Whether carrying a destructive device affixed to one's person while boarding and riding a subway constitutes placing the device in, upon, or near a mass transportation vehicle under 18 U.S.C. § 1992(a)(2).
3. Whether the government's reliance on the subway-placement theory constructively amended the indictment as to Count Five.
4. Whether the completed offense under 18 U.S.C. § 2332f(a)(1)(A) is a crime of violence supporting a conviction under 18 U.S.C. § 924(c).
5. Whether any Yates error arising from potentially improper predicate offenses affected Ullah's substantial rights, and whether the sentence was procedurally or substantively unreasonable.

Disposition

reversed_and_remanded