STATE of Tennessee, Appellee, v. Donna MAXEY, Appellant.

Court of Criminal Appeals of Tennessee, at Nashville.

Dec. 8, 1994.

Gary Howell, Columbia, for appellant.

Charles W. Burson, Atty. Gen. and Reporter, Cecil H. Ross, Asst. Atty. Gen., Criminal Justice Div., Nashville, Mike Bottoms, Dist. Atty. Gen., Robert C. Sanders, Asst. Dist. Atty. Gen., Columbia, for appellee.

OPINION

SUMMERS, Judge.

The Circuit Court at Maury County entered a jury verdict finding Donna Maxey1 guilty of the crime of the rape of a child pursuant to T.C.A. § 39-11-402 (1991) and T.C.A. § 39-13-522 (Supp.1994). The court imposed a sentence of fifteen years. Pursuant to T.R.A.P. 3(b) Maxey has appealed and presents the following issues:

(1) Is the evidence sufficient to support the jury’s verdict?

(2) Were the trial court’s jury instructions erroneous?

(3) Did the court err in refusing to find Maxey an especially mitigated offender?

For the reasons stated herein, we reverse the jury verdict and dismiss the charge against Maxey.

In a separate case, Todd Hampton pled guilty to simple rape of the victim in this appeal, a twelve year old female. The state indicted Maxey, the victim’s former aunt, charging her with rape of a child, contending that she was responsible for Hampton’s crime. The jury convicted Maxey and she has appealed, arguing that the evidence is insufficient to support a finding that she intended that Hampton rape the victim.

The facts basic to this appeal are undisputed. On the evening of the offense, the victim’s mother reluctantly gave the victim permission to spend the night with Maxey at Maxey’s stepfather’s house. Maxey and the victim went to Maxey’s stepfather’s house for approximately twenty minutes and then went to Maxey’s sister’s trailer. Todd Hampton, twenty years old, and Dale Adcock, Maxey’s nephew, were at the trailer. Maxey brought a half gallon of whiskey into the trailer and Hampton, Adcock, Maxey, and the victim began drinking. After two or three drinks, the victim became drunk and got sick. Max-ey and apparently Hampton and Adcock drove the victim around the block in an attempt to sober her up by exposing her to fresh air. In a further attempt to sober up the victim, they placed her in a cold shower. After borrowing some clothes from Hampton, the victim went into the back bedroom of the trailer and went to sleep. Maxey and Ad-cock apparently continued drinking in the living room. The victim testified that when she woke up, Hampton was having sexual intercourse with her. The victim further testified that she told Hampton to get off of her and he did. Hampton testified that he went to the bedroom first, that the victim followed him into the bedroom; and they had consensual sexual relations. Hampton entered into a plea agreement with the state wherein he pled guilty to simple rape and testified at the trial of Maxey.

T.C.A. § 39-11-402 reads in pertinent part:

A person is criminally responsible for an offense committed by another if:

(2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or

(3) Having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.

On appeal, Maxey contends that there is insufficient evidence to support the jury’s verdict that she “intended” that Hampton rape the victim. T.C.A. § 39-11-402(2) requires proof of intent to promote or assist the commission of the offense. Subsection (3) requires intent to benefit in the proceeds or results of the offense or intent to promote or assist the commission of the offense. T.C.A. § 39-ll-302(a) (1991) states that a person acts intentionally with respect to the nature of conduct or to a result of conduct when it is a person’s conscious objective or desire to engage in the conduct or cause the result. The Sentencing Commission Comments to this definition explain that “[i]nten-tional conduct or an intentional result occurs when the defendant wants to do the act or achieve the criminal objective. A defendant acts knowingly, on the other hand, when he or she is aware of the conduct or is practically certain that the conduct will cause the result, irrespective of his or her desire that the conduct or result will occur.” The plain terms of T.C.A. § 39-11-402(2), (3) indicate that proof of negligence or recklessness does not suffice to make a person criminally liable. The intent required by these subsections is demanding. It is necessary that the defendant “in some way associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree.” Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim.App.1976). The defendant must “knowingly, voluntarily and with common intent unite with the principal offenders in the commission of the crime.” State v. Foster, 755 S.W.2d 846, 848 (Tenn.Crim.App.1988).

When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). Our review of the record reveals the following evidence on the intent issue. Maxey provided the victim with alcohol and placed her in the situation where she was raped. Maxey attempted on two occasions to sober np the victim. When the victim told Hampton that she was sixteen, Maxey indicated to the contrary to Hampton by smiling and shaking her head negatively. Maxey told Hampton that the victim liked him. After the victim went to the bedroom, Maxey asked Adcock to go into the back bedroom and check on the victim. Adcock testified that he returned and told Maxey that the victim and Hampton were having sex. There is no evidence that Maxey took any action at this time. This being the extent of the evidence, we conclude that it is insufficient to establish that Maxey intended that Hampton rape the victim.

The state concedes that no Tennessee court has ever held that a person who merely exposes another to an unreasonable risk of criminal attack by a third party has intended that attack. The state further concedes that a review of the record indicates that there was virtually no evidence having any tendency to show that Maxey knew that Hampton intended to rape the victim and that there was no evidence that could support a reasonable jury verdict in finding beyond a reasonable doubt that she intended such a result. Accordingly, we reverse the jury verdict and dismiss the charge against Maxey.

In light of our resolution of the first issue on appeal, it is unnecessary that we address the remaining two issues. We feel compelled, however, to comment on a portion of the trial court’s jury instructions which is as follows:

As heretofore stated, the defendant is charged in the indictment with the offense of rape of a child. Any person who commits the offense of a rape of a child is guilty of a felony. For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements. (1) that Larry Todd Hampton had unlawful sexual penetration of the alleged victim or the alleged victim had unlawful sexual penetration of Larry Todd Hampton, and (2) that the alleged victim was less than thirteen years of age, and (3) that the defendant acted intentionally, knowingly, or recklessly.

On appeal, Maxey argues that the use of the word “recklessly” in the third portion of the instructions impermissibly misled the jury as to the mens rea necessary for conviction under T.C.A. § 39-11-402 authorizing criminal liability for the conduct of another. We agree. As we discussed supra, this statute requires a mens rea of intent. Evidence of a mens rea of recklessness is insufficient to support a conviction under this statute. A preferable instruction in these circumstances would have provided as follows: (3) that the defendant acted with the necessary intent to be criminally responsible for the offense committed by another.

Reversed and dismissed. Costs assessed to the state.

WADE and WELLES, JJ., concur.

1

. The defendant’s name in the indictment appears as Maxie. Everywhere else in the record, it appears as Maxey.

WILCOX v. JEFFERY.

[King's Bench Division (Lord Goddard, C.J., Humphreys and Devlin, JJ.), January 26, 1951.]

Alien­ - Breach of condition of leave to land - Aiding and abetting- Presence of music critic at concert - Leave to musician subject to condition not to take employment - Performance at concert - Aliens Order, 1920 (S.R. & O., 1920, No. 448), art. 18 (2).

On Dec. 11, 1949, one H., a musician and a citizen of the United States, was granted permission to land in the United Kingdom under art. 1 (4) of the Aliens Order, 1920, on condition that during his stay he would not take any employment, paid or unpaid. The appellant was present at the airport when H. landed and knew what condition had been imposed. That night H. attended a concert in a London theatre, and, on the invitation of the organisers of the concert, he gave a performance on the saxophone with other musicians. The appellant was present in the theatre throughout the concert, having paid for admission thereto, and later he wrote a laudatory commentary on H.’s performance in a magazine of which he was owner and managing editor and also published in the magazine a number of photographs.

HELD: the appellant’s presence at the concert was not accidental, and in the circumstances it was open to the magistrate to that his presence was an encouragement to H. to commit an offence against art. 1 (4) of the Order, and, therefore, under art. 18 (2), to convict him of aiding and abetting.

R. v. Coney (1882) (8 Q.B.D. 534), applied. [As to CRIMINAL RESPONSIBILITY FOR AIDING AND ABETIING OFFENCES, see HALSBURY, Hailsham Edn., Vol. 9, pp. 30-32, paras. 30, 31; and FOR CASES, see DIGEST, Vol. 14, pp. 91-94, Nos. 605-638, and Digest Supp., and 2nd Digest Supp.

AS TO THE CONDITIONAL LANDING OF ALIENS, see HALSBURY, Hailsham Edn., Vol. 1, p. 476, para. 805.]

Case referred to:

(1) R. v. Coney, (1882), 8 Q.B.D. 534; 51 L.J.M.C. 66; 46 L.T. 307; 46 J.P. 404; 15 Digest 645, 6870.

CASE STATED by a metropolitan magistrate. 

At a court of summary jurisdiction sitting at Bow Street Magistrate’s Court the appellant, Herbert William Wilcox, owner and managing editor of a monthly magazine entitled "Jazz Illustrated,” was charged with aiding and abetting one Coleman Hawkins, a citizen of the United States, in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land in the United Kingdom, namely, that Hawkins should take no employment paid or unpaid during his stay, contrary to art. 18 (4) of the Order. It was proved or admitted that on Dec. 11, 1949, Hawkins arrived at a London airport and was met by, among others, the appellant. The appellant was present when an immigration officer interviewed two other persons who had previously applied for permission for Hawkins to perform at a concert in London, but had been told by the Ministry of Labor that their application had been refused. At that interview it was stated that Hawkins would attend the concert and would be spotlighted and introduced to the audience, but would not perform. The appellant said he was not connected with the persons responsible for organising the concert and that he had only gone to the airport to report Hawkins’ arrival for his magazine. The immigration gave permission to Hawkins to remain for three days in this country, making it a condition that he should not take any paid or unpaid employment. The appellant was aware that such a condition had been imposed. Later the same day the appellant attended the concert, paying for admission. Hawkins was seated in a box, but after being "spotlighted" he went on the stage and played the saxophone. A description of the performance by Hawkins with several pages of photographs was later published in the appellant’s magazine. The magistrate was of the opinion that the appellant aided and abetted the contravention of the Order by Hawkins and imposed a fine of £25 and £21 costs.

Rountree for the appelant. 

J.M.G. Griffith-Jones for the respondent.

LORD GODDARD, C.J.: This is a case stated by the metropolitan magistrate at Bow Street Magistrate’s Court before whom the appellant, Herbert William Wilcox, the proprietor of a periodical called "Jazz Illustrated,” was charged on an information that “on Dec. 11, 1949, he did unlawfully aid and abet one Coleman Hawkins in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land, to wit, that the said Coleman Hawkins should take no employment paid or unpaid while in the United Kingdom, contrary to art. 18 (2) of the Aliens Order, 1920.” Under the Aliens Order, art. 1 (1), it is provided that

". . . an alien coming . . . by sea to a place in the United Kingdom -- a) shall not land in the United Kingdom without the leave of an Immigration officer. . .”

It is provided by art 1 (4) that:

“An immigration officer, in accordance with general or special directions of the Secretary of State, may, by general order or notice or otherwise, attach such conditions as he may think fit to the grant of leave to land, and the Secretary of State may at any time vary such conditions in such manner as he thinks fit, and the alien shall comply with the conditions so attached or varied . . .”

If the alien fails to comply, he is to be in the same position as if he has landed without permission, i.e.,he commits an offence.

The case is concerned with the visit of a celebrated professor of the saxophone, a gentleman by the name of Hawkins who was a citizen of the United States. He came here at the invitation of two gentlemen of the name of Curtis and Hughes, connected with a jazz club which enlivens the neighbourhood of Willesden. They, apparently, had applied for permission for Mr. Hawkins land and it was refused, but, nevertheless, this professor of the saxophone arrived with four French musicians. When they came to the airport, among the people who were there to greet them was the appellant. He had not arranged their visit, but he knew they were coming and he was there to report the arrival of these important musicians for his magazine. So, evidently, he was regarding the visit of Mr. Hawkins as a matter which would be of interest to himself and the magazine which he was editing and selling for profit. Messrs. Curtis and Hughes arranged a concert at the Princes Theatre, London. The appellant attended that concert as a spectator. He paid for his ticket. Mr. Hawkins went on the stage and delighted the audience by playing the saxophone. The appellant did not get up and protest in the name of the musicians of England that Mr. Hawkins ought not to be here competing with them and taking the bread out of their mouths or the wind out of their instruments. It is not found that he actually applauded, but he was there having paid to go in, and, no doubt, enjoying the performance, and then, lo and behold, out comes his magazine with a most, laudatory description, fully illustrated, of this concert. On those facts the magistrate has found that he aided and abetted.

Reliance is placed by the prosecution on R. v. Coney (1) which dealt with a prize fight. This case relates to a jazz band concert, but the particular nature of the entertainment provided, whether by fighting with bare fists or playing on saxophones, does not seem to me to make any difference to the question which we have to decide. The fact is that a man is charged with aiding and abetting an illegal act, and I can find no authority for saying that it matters what that illegal act is, provided that the aider and abettor knows the facts sufficiently well to know that they would constitute an offence in the principal. In R. v. Coney (1) the prize fight took place in the neighbourhood of Ascot, and four or five men were convicted of aiding and abetting the fight. The conviction was quashed on the ground that the chairman had not given a correct direction to the jury when he told them that, as the prisoners were physically present at the fight, they must be held to have aided and abetted. That direction, the court held, was wrong, it being too wide. The matter was very concisely put by CAVE, J., whose judgment was fully concurred in by that great master of the criminal law, STEPHEN, J. CAVE, J., said (8 Q.B.D. 540):

"Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.”

There was not accidental presence in this case. The appellant paid to go to the concert and he went there because he wanted to report it. He must, therefore, be held to have been present, taking part, concurring, or encouraging, whichever word you like to use for expressing this conception. It was an illegal act on the part of Hawkins to play the saxophone or any other instrument at this concert. The appellant clearly knew that it was an unlawful act for him to play. He had gone there to hear him, and his presence and his payment to go there was an encouragement. He went there to make use of the performance, because he went there, as the magistrate finds and was justified in finding, to get "copy" for his newspaper. It might have been entirely different, as I say, if he had gone there and protested, saying: “The musicians’ union do not like you foreigners coming here and playing and you ought to get off the stage." If he had booed, it might have been some evidence that he was not aiding and abetting. If he had gone as a member of a claque to try to drown the noise of the saxophone, he might very likely be found not guilty of aiding and abetting. In this case it seems clear that he was there, not only to approve and encourage what was done, but to take advantage of it by getting "copy" for his paper. In those circumstances there was evidence on which the trate could that the appellant aided and abetted, and for these  reasons I am of opinion that the appeal fails.

HUMPHREYS, J.: I agree that there was evidence sufficient to justify the finding of the magistrate.

DEVLIN, J.: I agree, and I wish to add only a word on the application of R. v. Coney (1). Counsel for the appellant sought to distinguish that case on the facts inasmuch as in R. v. Coney (1) the performance, which was a prize fight, was illegal from beginning to end, whereas in the case we are considering the bulk of the concert was quite legal, the only part of the performance which was illegal being that which involved Mr. Hawkins. That, however, is not, in my judgment, a distinction which affects the application to this case of the principle in R. v. Coney (1). It may well be that if a spectator goes to a concert he may explain his presence during an illegal item by saying that he hardly felt it necessary to get up and go out and then return when the performance resumed its legality, if I may so call it. It is conceivable that in such circumstances (and I should wish to consider it further if it ever arose) the presence of a person during one item might fall within the accidental or casual class which was envisaged by CAVE, J. Here there was abundant evidence, apart from the mere fact of the appellant's presence, that he was making use of this item in the performance and that his attendance at that item was, therefore, deliberate. In those circumstances I think the principle in R. v. Coney (1) applies, and that the magistrate was justified in drawing the inference which he did draw.

Appeal dismissed with costs.

Solicitors: Elliot & Macvie, (for the appellant); Treasury Solicitor (for the respondent). 

102 Ala. 25

State ex rel. Attorney General
v.
Tally, Judge, &c.^[*]

November Term, 1893.

This was an impeachment proceeding against John B. Tally, Judge of the Ninth Judicial Circuit of Alabama, and was commenced in the Supreme Court by an information filed on the part of the State by William L. Martin, as Attorney-General, founded upon a report of the grand jury of Jackson county. The facts of the case are sufficiently stated in the opinion.

WILLIAM L. MARTIN, Attorney-General, and R. W. WALKER, for the State. All the evidence as to any relations between R. C. Ross and Annie Skelton should be excluded from consideration. The knowledge or information on this subject which the Skeltons had on the day of the killing, they had had for at least a month prior to that time. So long a cooling time having elapsed, evidence of such knowledge was not admissible for the purpose of reducing the grade of the homicide from murder to manslaughter, the only purpose for which such evidence is admissible in any case.—Hooks [28] v. State, 99 Ala. 166; Fields v. State, 52 Ala. 354; Reese v. State, 90 Ala. 627.

A witness should not be permitted to testify as to his uncommunicated intentions.—Lewis v. State,  96 Ala. 6, and cases there cited.

The charge of willful neglect of duty was fully made out. The respondent, with knowledge that Ross had returned to Scottsboro, that the Skeltons were "on the war path" for him, saw thee of the Skeltons on horseback, with guns, early Sunday morning, starting hurriedly out of town, evidently on some war-like mission. With knowledge of their previous threat to kill Ross, even if that threat was conditional, it can not be imagined that any other thought entered respondent's mind when he witnessed the demonstration than that the Skeltons were starting out in pursuit of Ross, intent upon killing him. After stopping and talking to Bob Skelton, respondent, according to his own admission, went into his house, there learned the truth of the matter, and then walked out to his front gate, and was there seen by witnesses for the State standing watching the Skeltons as they rode out of town. Under the circumstances, with the knowledge the respondent then had. The acts of the Skeltons in his presence as clearly amounted to a threat to kill Ross as if respondent had admitted that Bob Skelton, in the interview near respondent's barn, had fully developed their plans and purposes. The acts in respondent's presence "reasonably threatened murder."—Jones v. State, 100 Ala. 88; Martin v. State, 89 Ala. 115; Hayes v. Mitchell, 69 Ala. 452. The defendant then had the authority to order the Skeltons into an undertaking to keep the peace. Code, §4697. Certainly, the highest law officer in the county should be held to some degree of diligence in the performance of so grave a duty.—2 Wharton Crim. Law, (7th Ed.), 2526, 2528.

Anyone coming into a conspiracy at any stage of the proceedings, with knowledge of its existence, is regarded in law as a party to all the acts done by any of the other parties, before or afterwards, in furtherance of the common design. No pre-arrangement is necessary. One, who with knowledge 01' information of the unlawful design of others, is present, actually or constructively, abetting or assisting , or ready to [29] aid, abet or assist, is a guilty participant.—United States v. Sacia, 2 Fed. Rep. 755, 757-58; Tanner  v. State, 92 Ala. 1; Martin v. State, 89 Ala. 115; Spies v. People, 122 Ill. 1. The words "aid" and "abet" comprehend all assistance rendered by acts, words of encouragement or support, or presence, actual or constructive, to render assistance, should it become necessary.— Raiford v. State, 59 Ala. 106. Where an effort to do a criminal act fails of consummation, simply because of obstructions in the way, not apparent to the person making the effort, which rendered the crime incapable of accomplishment by him, such abortive effort is a criminal attempt, where the law makes a mere attempt to do such act criminal. Mullen v. State, 45 Ala. 43; People v. Moran, 20 Amer. St. Rep. 732.

WILLIAM RICHARDSON, D. D. SHELBY, JOHN A, LUSK, GEORGE C. HUNT and AMOS GOODHUE, for respondent. There is a total absence of any evidence that the respondent at any time was in consultation with the Skeltons or either of them, concerning the killing of Ross. He is shown to have been in consultation with Robert S. Skelton on the evening before the homicide, but this in no way concerning the killing of Robert C. Ross, but was regarding the ascertaining of the whereabouts of a sister, whom the defendant with the Skeltons desired to rescue from a life of shame and disgrace, and save from becoming the subject of a public scandal. It is true, circuit judges are magistrates and conservators of the peace.—Code of Alabama, 1875, Art, VI, Par. 16; 1 Cooley's Blackstone, 350; Code of 1886, § 4680. But there are only certain contingencies under which they are authorized to exercise their power as such, in the manner in which it is charged this defendant neglected to act. 1. When complaint on oath is made to them charging the commission of an offense has been threatened.—Code of Ala., 1886, § 4681, et seq.; 2 Amer. & Eng. Encyc. of Law, 516, § 2; and, 2, when an offense is committed or threatened in the presence of such magistrate, or when he sees such acts as show a reasonable ground for the arrest.—Code of 1886, § 4697; Jones v. State, 100 Ala. 88; Code 1886, § 4265. There is in the evidence in this case, total absence of any threat and any act in the presence or within the knowledge of this respondent, on the part of either of the four named [29] Skeltons, to do Ross any harm whatever. He had no knowledge or suspicion of such a thing except after they had gone beyond any opportunity on the part of anyone in Scottsboro to interpose any obstacle. There is no evidence in the record sustaining the smallest fragment of the first count and its four specifications so far as they relate to this defendant.

The second count in the information, is a charge of murder alleging in the several specifications substantially the same thing, but, under the pleadings and the evidence in this case, depending solely on the proof being made that the respondent entered into a conspiracy with the four Skeltons to murder the said Robert C. Ross. If the respondent was not an accessory before the fact to the killing of Ross, he is not guilty of any crime alleged in the information. He either conspired with the four named Skeltons to murder Ross, or he had nothing to do with his death, and should be acquitted. An accomplice is a person who knowingly, voluntarily and with common intent with the principal unites in the commission of a crime.—Tanner v. State, 92 Ala. 1; Wharton's Crim. Ev., § 440. There can be no pretention that the defendant united in the commission of any offense; he did no act that aided, abetted or encouraged the Skeltons in doing anything they did. The telegram had nothing whatever to do with bringing about the death of Ross. In no way did it aid in the killing. It was not instrumental in causing delay in the delivery of the message of E. H. Ross to the man slain, in no way facilitated the pursuit by the Skeltons. In this case, if there be a previously formed purpose or conspiracy to commit the offense, the acts, declarations and conduct of each conspirator done or expressed in promotion or in relation to the accomplishment of the crime, becomes the act, declaration or conduct of each co-conspirator, and may be given in evidence against him. But to do this, a prima facie case of conspiracy must be shown.—McAnally v. State, 74 Ala. 16. A prima facie case or evidence is that which is received or continues until the contrary is shown.—19 Amer. & Eng. Encyc. of Law, 83; Troy v. Evans, 97 U. S. 3; Kelly v. Jackson, 6 Pet. (U. S.) 622; Wharton's Crim. Ev., § 698, and note 2. The respondent is charged with being an [31] accessory to a crime. It must appear that the crime was in fact committed.—Poston v. State, 12 Tex. App. 408. There is no prima facie case made, there is no conspiracy, and the evidence as to all that the Skeltons did and said should be excluded.—McAnally's Case, supra.

An accessory before the fact, as charged in this information, is one who, being absent at the time the crime is committed, yet procured, counselled or commanded another to commit it.—1 Arner. & Eng. Encyc. of Law, 61,also page 67, and note, Hughes v. State, 75 Ala. 31; Griffith v. State, 90 Ala. 583; 1 Amer. & Eng. Encyc. of Law, 452 and note 3. There is absolutely no evidence in this case that the respondent procured the Skeltons to commit the deed charged, or that he counselled it or commanded it.

The mere passive non-interference does not render one guilty of a crime committed by others.—3 Coke 529, and note; Jackson v. State, 20 Tex. App. 190; Mulvey v. State, 43 Ala. 316. Mere approving a murder committed in one's presence or within one's knowledge does not make him an accessory or an accomplice.—Wharton's Crim. Ev., 440; State v. Cox, 65 Mo. 29; 1 Amer. & Eng. Encyc. of Law, 62, and note 1; Connaughty v. State, 1 Wis. 169; People v. Woodward, 45 Cal. 293; 13 Amer. Rep. 176 and notes; White v. People, 81 Ill. 333; Cooper v. Johnson, 81 Mo. 483; Notsfinger v. State, 7 Tex. App. 301; Rucker v. State, 7 Tex. App. 549; State v. Hann, 40 N. J. L. 228; Ellizando v. State, 30 S. W. Rep. 560

In order to make one an abettor it must be proven that he was in a situation in which he not only rendered assistance in some manner in the commission of the offense, but it must be proven that he was in this position by agreement with the perpetrator of the crime, or with his previous knowledge, consenting to the crime, and for the purpose of rendering him encouragement in the commission of it—Knapp' s Case, 20 Amer. Dec. 504. Or to assist him by the doing of some act whereby the party who is regarded as the principal and is the principal actor in the commission of a crime is encouraged, or it is made easier for him to do the principal act or effect the primary purpose.—1 Amer. & Eng. Encyc. of Law, 453 and note; Wiley v. McRee, 2 Jones (N. C.) 349 Raiford v. State, 59 Ala. 106; Griffith v. State, 90 Ala. 568. To hold one liable with [32] others as principal in the commission of an offense, there must be combination of act and intent.—Ronntree v. State, 10 Tex. App. 110. One is not guilty of aiding and abetting merely because present and seeing an offense committed, if he does not interfere. He must do or say something showing his consent and contributing to its execution.—State v. Hayward 10 Amer. Dec. 607, note. There must be some affirmative act or encouragement to make him guilty as an accomplice.—Amer. & Eng. Encyc of Law, 575.

If the telegram of the respondent to Huddleston, not being sent with the consent, knowledge or approval of the Skeltons, and not being addressed or directed to them, and not being delivered to them, nor brought to their knowledge, and being in no way interposed between the deceased and any means of escape which may have offered themselves to him, the telegram in no way contributed to, facilitated or brought about the death of Ross, and, therefore, the defendant is not guilty of any of the specifications in the information.— Frank v. State, 27 Ala. 37; Jordan v. State, 79 Ala. 12; Turner v. State, 97 Ala. 57; Cabbell v. State, 46 Ala. 195. In order to ho1cl the respondent responsible as a participant in the crime, if crime it be, on the part of the Skeltons to have killed Ross, the State must show beyond a reasonable doubt that the act of the defendant in sending the telegram to Huddleston contributed to and facilitated the killing of Ross by said Skeltons. And that the act and conduct of the respondent was anticipated by or expected on the part of the Skeltons by reason of a previously formed arrangement or agreement between  them and the respondent, that he would so act, or do other acts of a character calculated to aid and facilitate the killing of Ross.—Hickam's Case, 8 S. W. Rep.252; 6 Criminal Law Magazine and Report, 414.

McCLELLAN, J.—The evidence was taken ore tenus in this case. There were many witnesses. Much difficultyand delay in securing their attendance at Montgomerywere apprehended. To facilitate the hearing ofthe case and to subserve the convenience and necessitiesof the witnesses, the judges of this court, at the requestand in accordance with the agreement of the respondent [33] and the State consented to take the evidence and hear the arguments of counsel in the cause at Huntsville near the scene of the acts and omissions laid against the respondent in the information. And the evidence was there taken, and the arguments were there heard. This, we were and are of opinion, we might well do at the request and in accordance with the agreement referred to, in view of the control which the statute gives respondents m such cases over the manner of taking testimony. But we were not unmindful of section 3, article IV of the constitution, which is in this language: “The Supreme Court shall be held at the seat of government, but if that shall become dangerous from any cause, it may adjourn to a different place;" and we wore careful, while sitting at Huntsville as individual members of the court and not as the court itself, to avoid the attempted exercise of all judicial power. Hence it is that we made no rulings as to the admissibility of testimony except of a tentative and advisory nature, and hence it is also that much incompetent testimony was received subject to objections noted at the time and is now to be stricken out and excluded, either expressly or by tacitly disregarding it in reaching the conclusions we shall announce. This course, under the circumstances the triers of the facts and the judges of the competency of proposed testimony being the same and under a necessity for the most part to know what the offered testimony is before passing upon its admissibility, whether the ruling is to be presently or subsequently made, involved no prejudice to either party; and we believe facilitated the hearing in this instance.

Briefly stated, the information in this case contains two charges against John B. Tally as Judge of the Ninth Judicial Circuit. The first is willful neglect of duty while in office, in that, knowing the intent of Robert, John, James and Walter Skelton to take the life of R. C, Ross, and having the opportunity to intervene in his official capacity to prevent the execution of that intent he willfully failed and neglected to do so. The second count charges complicity on the part of Tally in the murder of Ross, by the hands of said Skeltons. Tally was a brother-in-law to all of the Skeltons named except John, having married their sister who was a cousin to John. The [34] grievance they had against Ross lay in the fact that the latter had seduced or been criminally intimate with a sister of three of them and of Mrs. Tally. This abstract fact was, in our opinion, competent evidence in this case against Tally as tending to connect him with the motive which actuated the Skeltons to the killing of Ross; and the fact appears in this case by evidence to which no objection was interposed. Much evidence on this subject, including several letters written by Ross to Miss Skelton, was offered by the respondent, objected to by the State, and received subject to the objection because of the circumstances, to which we have adverted, under which the evidence was taken. All this must now yield to the objection noted at the time, and be excluded from the case. It was proved that both the Skeltons and Tally had full knowledge of the liaison between Ross and Miss Skelton—had had possession of and read all the implicatory letters from him to her—long before the killing of Ross. Had they, immediately upon the receipt of these letters and upon coming, in this or other way, to a knowledge of Ross's misconduct toward her, been moved by the tumult of passion, which the law holds such intelligence sufficient to provoke and engender, to take the actual life of Ross, and had taken his life while under the actual dominion of this overmastering passion before cooling time had elapsed, all this evidence would have been competent as negativing the premeditation and malice which are essential elements of murder, and thereby reducing the grade of their offense to manslaughter. But the amplest cooling time had elapsed. If their passion continued, it was without justification of law. And whether as a matter of fact life was taken in a passion so continuing or not, the offense of the Skeltons, and of Tally, if he participated in the homicide, was and could be in nowise and to no extent or degree justified, mitigated or extenuated by the fact of Ross's relations with their sister; and they are each and all guilty or not of murder as the other and only evidence in the case, wholly apart from and exclusive of the relations of Ross and Miss Skelton, may or may not satisfy beyond a reasonable doubt minds charged with the investigation that they killed, or participated in the killing of, Ross under circumstances that would have imported murder had the perpetrators been wholly without griev [35] ance, real or fancied, against him. All this testimony is, therefore, entirely irrelevant and immaterial to any issue that can possibly exist in this case, and it is excluded.—Hooks v. State, 99 Ala. 166; McNeill v. State, 15 So. Rep. 352, infra.

It has been many times decided by this court, and may now be considered the settled rule with us, though most of the adjudged cases in other jurisdictions hold the contrary, that a witness cannot depose to his uncommunicated intention. And upon this rule the testimony of the respondent as to the purpose and intention which actuated him in the sending of a certain telegrams, and of the witness Huddleston that, upon receiving certain telegrams from E. H. Ross and the respondent on the morning of February 4, 1894, he "went down to the hotel to see if Mr. Ross was there—to see if he had come there; went down to advise with him and to see what the trouble was, and also to deliver the message," must now be stricken out.—Wheless v. Rhodes, 70 Ala. 419; Whizenant v. State, 71 Ala. 383, Stewart v. State, 78 Ala. 436, Fonville v. State, 91 Ala. 39; Baldwin v. Walker, Ib. 428; E. T. V. & G. R. R. Co. v. Davis, Ib. 615; Lewis v. State, 96 Ala. 6.

The conversation between the respondent and Mr. J. E. Brown after and on the day of the homicide was in the nature of privileged communications between attorney and client, for though that relation was never established between these parties, what was then said by the respondent was with a view to the retainer of Mr. Brown, and is within the protection of the rule. That conversation and the circumstances under which it was had must now be excluded.—Hawes v. State 88 Ala. 37, 68. Without discussing at present other objections to the testimony which may be ruled upon in the course of this opinion,  we will proceed to state and consider the evidence with reference to the guilt or innocence of the respondent of the charges brought against him by the information, premising that we recognize the rule of conviction beyond a reasonable doubt as applicable to this case, and that our minds must be convinced to that degree of the guilt of the respondent before we can adjudge him guilty as charged.

Among the facts which the evidence establishes without conflict, direct or inferential, in this case, are the [36] following: About January 6, 1894, Ross left his home in Scottsboro surreptitiously under and because of an apprehension that his life was imminent peril at the hands of the Skeltons. He remained away from Scottsboro under this apprehension until Tuesday night, January 30th, when he returned on account of the illness of his wife. From that time till Sunday, February 4th, he remained in Scottsboro, secluded in his house. About 6 o'clock on that Sunday morning, just as the train passed Scottsboro going to Stevenson and beyond there to Chattanooga, Ross left Scottsboro in a hack for Stevenson, eighteen miles distant, intending to catch a tram there on another road and go on to Chattanooga. With him were his brother-in-law, Bloodwood, a negro man, John Calloway and the driver, one Hammons. All of the party were armed; Ross had a gun and a pistol, Bloodwood had a gun, and Calloway and Hammons each had a pistol. They arrived in Stevenson about 10:45 that morning, and driving to a point in a public road or street midway between an hotel and the passenger station of the two railroads that connect, or, rather, unite there, and thirty or forty yards from each, all the party alighted from the vehicle, except the driver, and took out their arms and baggage, the latter consisting of three valises. A person, William Tally, passing at the time from the hotel to the station, walked around the hack, which had stopped immediately in front of him; and met, shook hands and passed the usual salutations with Ross , who had gotten out on the side next the station, and then turned away and started on toward the station. Just at this juncture a shot was fired at Bloodwood, from behind the depot platform. This was followed by another from the same place, and then by other shots from two guns behind the platform and from a pile of telegraph poles a little way down the road in the direction from which the hack had come. Some one or more of these succeeding shots took effect in Ross's legs, and he fell. Bloodwood was also wounded and ran away. The team ran away with Hammons. Calloway does not appear to have been hit, but in some way he fell with and under Ross. They both arose almost immediately. The negro, Calloway, ran away. Ross managed to get to the side of a small oil house, a [37] short distance beyond where the hack had stopped, and took a position affording some shelter from persons behind the platform and telegraph poles. While standing there with his gun in his hand and looking in the direction of the telegraph poles, a man came to the corner of the house behind him and shot him with a Winchester rifle through the head from back to front. He fell in the throes of death and died, then another man came up from behind the platform and, approaching closely, also shot him through the head with a Winchester rifle.

The man who fired the first and two of three other shots from behind the platform was Robert Skelton. The man who fired the other shots from that position was James Skelton. The man who fired from the telegraph poles was Walter Skelton. John Skelton it was who reached the corner of the oil house behind Ross, shot him in the back of the head and killed him. And it was Robert who came up after he was dead, and again shot him in the head. Some of the Skeltons were seen about the station in Scottsboro when the east bound train passed that morning just at the time Ross started overland to Stevenson. Soon after that they heard of Ross's flight, and, as soon as they could get together, arm and mount themselves, they started in pursuit on horseback. They were fearful that Ross would turn off the Stevenson road and go across the Tennessee river as he had done on the occasion of his previous flight, and hence they were afraid to take any short cuts by resorting to which they could have, as Ross continued in the Stevenson Road, overtaken him much sooner than they did; but in their uncertainty as to his destination they thought it best to follow the tracks of his vehicle. Doing so they came in sight, and within a little distance of the hack as it was crossing a creek a mile from Stevenson. The hack was a close one and its occupants did not see them. A railroad crosses the creek at this point along side of the public road. They could have attacked the Ross party at this point, and Walter Skelton testifies that he then said to his companions: "Let's surround them and demand of him where Annie is," but that they said: "No, that would probably bring on a fight, and some one of us get killed." Instead of this, Robert and James dismounted, left their horses and ran along the railway track to Stevenson where they arrived and took positions behind the platform [38] almost immediately after the Ross party had arrived and stopped. Walter and John Skelton kept in the road behind the hack and fifty or sixty yards distant from it. They too were afoot at this time. Walter stopped at the pile of telegraph poles which he seems to have reached about the time the hack stopped and before anyone alighted from it. John, in same way, got beyond the hack and finally to the oil house without, so far as the evidence discloses, being seen by anybody until just before he shot and killed Ross. After the killing of Ross, Robert Skelton sent a telegram to the respondent at Scottsboro informing him that Ross was dead and that none of the Skeltons were hurt; and they all surrendered themselves to Huddleston, who was mayor of Stevenson, and were taken back to Scottsboro and confined in jail. Subsequently bail was allowed them and was given by Robert and James.  John and Walter were unable to give bail, and the former escaped, and is still at large. After this, Walter also gave bail. All these facts are undisputed. The evidence offered in justification or mitigation of the homicide, except the facts and circumstances of Ross's relations with Miss Annie Skelton which we have excluded, is that of Robert Skelton as follows: "About the time that I got to the depot) between the depot and the hotel, Mr. Ross was at the buggy speaking with Bill Tally. I walked up and saw that. In a little while, I don't know how long, Mr. Bloodwood drew his gun up at me. I dodged dawn, and then fired at Bloodwood;" and of Walter Skelton: "I was, I suppose, fifty or sixty yards behind the hack [when it stopped], and I was watching to see who got out. I saw Mr. Ross get out, talking to some one. Then I saw Mr. Bloodwood get out, and in a few minutes I saw him raise his gun across the hack, then take it down and about the same instant I heard a gun pop." The gun which Walter heard “pop" was that of Robert Skelton. Walter and James then joined in and Robert continued the fusilade. That Bloodwood did not shoot there is no reasonable doubt. That Ross or any other of his party fired a shot is not pretended. That Bloodwood snapped his gun in an effort to shoot there is some evidence, enough we will conclude to engender a reasonable doubt as to whether he did or not. But the conclusion that he attempted to shoot at Robert Skelton will not afford any [39] justification or excuse to the Skeltons or the respondent. They were in no danger from Bloodwood' s gun. If they were in danger, a safe avenue of retreat was open to each of them. Had there been danger and had the opportunity of retreat been wanting, they yet could not invoke the doctrine of self-defense, because their danger resulted from their awn wrongful and unlawful aggression. They were there to kill. It was Ross and Bloodwood and not they who were on the defensive. This conclusion can not be escaped even from their own standpoint. They say they pursued Ross to prevent his going to their sister and continuing criminal relations with her. How were they to do this; how could they do it but in the effective way they did do it, by stopping Ross at once and forever in his tracks. That they contemplated this means, conceding their purpose was to prevent the coming together of Ross and Miss Skelton, is beyond all question. It is shown by their conversation at the creek, when they said Ross would fight and some of them would be killed if they approached him with reference to Miss Skelton, and they then desisted only because the place and surroundings were not opportune. It is shown by the disposition they made of themselves around but concealed from Ross at Stevenson and the instantaneous fire they opened an him as soon as they were in their places of ambush, when, had their purposes been less deadly, had any sort of parley with Ross been desired, either for the purpose of diverting him from their sister or of ascertaining from him her, whereabouts, pacific means to that end were at hand in the person of William Tally, who had just spoken to Ross and was then coming directly towards the place of concealment of two of them, one of whom began the onslaught, and in the person of several other men then in and about the depot. Their purpose was to kill; its wickedness was unrelieved by aught of legal justification or excuse. They did kill; and their act was without any justification, mitigation or extenuation which the law knows or courts can allow to be looked to. It was murder.

What connection had the respondent with that murder? Was he, knowing the deadly intent of the Skeltons and their pursuit bent upon its execution, willfully neglectful of his duty as a magistrate in not exercising the power the law had clothed him with to stay their[40] hands? Or did he himself participate in the deed by commanding, directing, counselling or encouraging the Skeltons to its execution, or by aiding and abetting them in its commission? The evidence for the prosecution on these issues will be briefly stated. As has been seen, Judge Tally was the brother-in-law of Robert, James and Walter Skelton, and of Miss Annie Skelton, the wronged girl. It may be supposed, therefore, that he shared with the Skeltons, in some degree at least, the shame and mortification which had come upon them through Ross; and that the grievance against Ross was common to them all. It was shown that he knew all the facts known to the Skeltons and came to his knowledge of them soon after they did. They all lived in the same town with the intimacy usually incident to their relations. James Skelton lived with Judge Tally. On Friday before the Sunday of the homicide, Judge Tally returned to Scottsboro from Ft. Payne, where he had been holding court, by way of Chattanooga, Tennessee, and over the Memphis and Charleston railroad. On the train was Mr. Gregory, a lawyer of Scottsboro, who engaged Judge Tally in conversation. The latter spoke of some interesting murder Cases that he had been trying at Ft. Payne, and in this connection Gregory remarked to him that he thought they would have one or more killings in Scottsboro in a very short time. "The Judge [to quote the witness] asked me why, and I told him that Ross had come back and that the Skelton boys were on the war path, or some such thing, I don't remember just what it was. The Judge said he guessed not, that he supposed Ross would leave, or would not stay there, or something of that kind; and I told him I supposed so." On Saturday afternoon Judge Tally was in consultation with Robert Skelton, the eldest of the brothers, for something like a half hour in the latter's office. It is admitted by Judge Tally that this conversation had relation to Ross and Miss Skelton and the scandal connected with them. Tally staid at home that night. James Skelton also slept there. The next morning Tally's fifteen year old son went to a livery stable and got a horse, the hire of which was charged to, and subsequently paid by, Judge Tally. This horse was gotten for the purpose of being ridden and was ridden by Walter Skelton in pursuit of Ross. One witness testifies [41] that quite early on that Sunday morning before the Skeltons had assembled to go in pursuit of Ross, he saw a man whom he took to be Judge Tally passing a street some distance from Judge Tally's house, going in the direction of John Skelton's, but he was by no means sure that the man he saw was Judge Tally. J. D. Snodgrass, a witness far the State, testified that he saw three of the Skeltons, Robert, John and James, leaving Scottsboro that Sunday morning. When he first saw them, John and James were going along a side street upon which Judge Tally's barn and barn lot were situated. That the two last named had gotten beyond Tally's premises and were about turning out of this street, which ran north and south, into a street running east and west and passed in front of Judge Tally's residence. This residence was the second from the corner at the intersection of these streets. At this time Robert Skelton was on horseback near Tally's barn lot fence talking with Tally. He remained there only a very short time—the witness said probably a minute—after Snodgrass saw them. Tally was either inside his lot or in the street near his lot and on foot. At the end of this short time Robert rode on following John and James, turned east on the other street mentioned and passed by Snodgrass's house, which fronted on that street, going in the direction of Stevenson. He then observed that each of them had a gun. Another witness before this saw Walter Skelton following the Stevenson road on foot. This witness coming on down this street in front of Judge Tally's house, saw Tally standing at his front gate looking in the direction Walter Skelton was proceeding. Tally turned before he reached him and went into the house. Young Tally carried the horse which he had gotten from the livery stable to Walter on the road. Another witness passed down this street after they had all gone towards Stevenson, and he also saw Tally at his gate looking in that direction. Tally again turned and went into his house before this witness reached him. It was also in evidence that James Skelton left Tally's house that morning before breakfast, went down town, armed and mounted himself, came back to Tally's, hitched his horse in front of the house, set his gun against the front gate, went into the dining room to get something to eat before starting, then went out, remounted, and joined [42] Robert and John at the corner where these three were seen by Snodgrass. The flight of Ross and the pursuit of the Skeltons at once became generally known in the town of Scottsboro, and was well nigh the sole topic of conversation that Sunday morning. Everybody knew it. Everybody talked only about it. Everybody was impressed with the probability of a terrible tragedy to be enacted on the road to Stevenson, or at the latter point. The respondent was soon abroad. He went to the depot where the telegraph office was. He remained about there most of that morning. About nine o'clock that morning Dr. Rorex saw him there, and this, in the language of the witness, passed between them: "I said to Judge Tally that I thought we had better send a hack and a physician to their assistance up the Toad [referring to the Ross and Skelton parties then on the road to Stevenson]; that these parties might get hurt and they might need assistance. Judge Tally replied that his folks or friends could take care of themselves. I also said to him that I reckoned we ought to send a telegram to Stevenson and have all of them arrested, to which he made no reply. * * He said that he was waiting to see if anybody sent a telegram—or words to that effect—waiting or watching to see if anybody sent a telegram." And he did wait and watch. He was seen there by Judge Bridges just before the passenger train going west at 10:17 passed. He was there after it passed. E. H. Ross, a kinsman of the Ross who had fled and was being pursued, meeting the telegraph operator, Whitner, at the passenger station walked with him down to the freight depot where the telegraph office was. Judge Tally followed them. They went into the telegraph office and so did he. Ross was sitting at a table writing a message. It was addressed to R. C. Ross, Stevenson, Alabama. Its contents were: "Four men on horse back with guns following. Look out." Ross handed it to the operator to be sent. Tally either saw this message or in some way very accurately divined its contents. He called for paper and immediately wrote a message himself. Judge Bridges was still in the office. At this juncture Tally spoke to him, took him into a corner of the room and, calling him by his given name, said: "What do you reckon that fellow [the [43] operator] would think if I told him I should put him out of that office before he should send that message?" referring to the message quoted above which E. H. Ross had just given the operator. Judge Bridges replied: "Judge, I wouldn't do that. That might cause you very serious trouble, and besides that might cause, the young man to lose his position with the company he is working for." Judge Tally then remarked: ' 'I don't want him to send the message he has, and I am going to send this one." He then showed Judge Bridges a message addressed to William Huddleston at Stevenson, containing these words: "Do not let the party warned get away." This message was signed by Tally. Huddleston was the operator at Stevenson and a friend of Tally. The respondent then handed this telegram to the operator, remarked to him "this message has something to do with that one you just received," said he wanted it sent, and paid for it. He then started toward the door, but turned to the operator and said: "Just add to that message, 'say nothing.’” Tally then left the office. This message was sent just after that of E. H. Ross to R. C. Ross. The original of it was placed on a file in the office at Scottsboro. Two days after a search was made for it and it could not be found, and has never been found. The one man in the world most interested in its destruction, the respondent in this case, in the meantime had had an opportunity to abstract it, he having had access to this file and gone through the messages on it for the purpose, he said then and says now, of finding the address of a person to whom he had sent a message some days before. And on the preliminary examination of the Skeltons before the probate judge of Jackson county for the murder of Ross, Judge Tally was called and examined as a witness for them, and before a copy of this message was produced by the operator, and hence at a time when Judge Tally was not aware that a copy was in existence, this question was put to him: "You didn't send any dispatches that morning to Stevenson?" And his answer was: "Yes, sir. I sent one, but not about this matter. It was to a friend, about another matter, nothing concerning this case." And this friend was Mr. Huddleston. He further testified on that trial that he did not know Ed. Ross, did not see him going to the telegraph office that morning, and did not know whether Ed. Ross was in the telegraph office while he was on that [44] occasion or not. These telegrams of Ed. Ross and Tally were sent about 10:25 A. M. Tally then, his watch to prevent the sending or delivery of a telegram to R. C. Ross being over, went home. Soon after eleven o'clock the message before referred to came from Stevenson to Scottsboro, addressed to Judge Tally, and signed by Robert Skelton. It ran: "Ross dead, none of us hurt." This was taken to Judge Tally's house and there delivered to him, and he thereupon went to see Mr. Brown, and had the conversation which we have excluded.

The foregoing is substantially the case made by the evidence adduced by the State against the respondent, leaving out of view for the moment the evidence touching the effect which his message to Huddleston had upon occurrences at Stevenson.

Next we undertake a summary of the evidence for the defense. Judge Tally himself, and Robert, James and Walter Skelton were among the witnesses examined. The respondent admitted having a conversation on the train with Mr. Gregory, but he did not recall that Gregory said anything about the Skeltons being on the war path. He says he knew of the relations between Ross and Miss Skelton soon after the Skeltons were informed of them, and read the letters from him to her soon after they came to their possession. That he and Robert Skelton, at the time the latter showed him the letters, on January 6, 1894, held consultation as to what was best to be done in the matter. This is his account of what occurred and was said at that time in Robert Skelton's office: "Iasked Bob Skelton if he had such communications as it was reported he had, letters said to have been written by Mr. Ross to Annie. I asked him then if he would let me see the letters. He said he would; and got them and showed them to me, and I read them there in his office. He and his brother David Skelton and myself were the only persons present. During the time I was reading the letters we were speaking about the contents and discussing them, and he told me after I had read the letters—possibly during the time I was reading them—he gave me his ideas as to managing the trouble. He told me about his plans to get Annie home and to let Mr. Ross leave and make the best of it—let it die out and make the best of it. I told him that was decidedly the best thing to do. It [45] was best for him and would possibly save the publication generally of the scandal, and might possibly save my mother’s life. Annie's mother was paralyzed and helpless, and I suggested that exposure might possibly cost her her mother's life. Dave Skelton was sitting by and observing our conversation, and would occasionally have something to say; and he spoke of doing violence—spoke of killing him. I simply turned to him and said: ‘Dave, that won't do. This is the best management.' I desire to say just here that this is the only time that any member of the Skelton family ever said anything in my hearing about killing Ross. Not long after that, he left and I heard no further conversation about any violence." The respondent gives the following account of the conference he had with Robert Skelton on Saturday afternoon preceding the homicide: "I think I was on the street and Bob called me into his office, * * * and we engaged in conversation. I think that the first thing Bob mentioned to me was that he was thinking as to how he should find out where Annie was. He said he had been thinking about trying to get some one to go to Mr. Ross, and induce him or ask him to tell us where Annie was. I suggested to him the propriety of interviewing Mr. Brown about that, and gave him reasons why I suggested Mr. Brown." These reasons as given at the time by the witness he then repeats; and goes on to mention one or two other persons whose availability in getting this information was discussed, and says that after this he left Bob's office having been there he supposes fifteen or twenty minutes. In all this Judge Tally is corroborated by the evidence of Robert Skelton, and, in respect of their determination to do no violence to Ross, but to get the girl home and allow him to leave Scottsboro, he is further corroborated by the declaration proved by Mr. Gregory in substance that no violence would be done to Ross as he would leave Scottsboro. He denies having passed up the street when the witness Miller says he thought he saw him at an early hour Sunday morning, and no importance can be attached to the evidence of that witness, because, in the first place, his glance at the man was casual and hasty and he was himself not at all certain that it was Judge Tally he saw. In the next place even on the theory of the prosecution, there was no reasonable occasion for Judge Tally's being at that [46] place at that time, and, finally, the fact is denied on oath by the respondent. So that testimony may stand out of the case. In respect of the horse which Judge Tally's son procured at the livery stable, which was charged to and paid for by the respondent, and which Walter Skelton rode in pursuit of Ross, the testimony is that Mrs. Tally at the instance of Walter Skelton ordered this horse and sent her son for it, that she was in the habit of doing this, that it was charged to Judge Tally as was the custom, and that he, conceiving himself under a moral a and legal obligation to do so because the horse had been supplied to Mrs. Tally, paid the bill and this in the usual course, after the point now made on those facts had been suggested to him. The respondent admits on the stand that he saw and had a few words with Robert Skelton when the Skeltons were leaving Scottsboro Sunday morning as testified to by Mr. Snodgrass and this is the account of that interview: "When I first got up, I went down stairs and stepped out to the front gate just a minute. The only person I saw was Bob Skelton riding up the street towards the railroad [a street running north and south and not in the direction of Stevenson]. Bob was crossing the street going northwest [the direction in which John Skelton lived].  I walked back through the hall of my house and went down to the garden to the closet, and was there some time, I don't remember how long, some little time however. After I came out of the closet and while I was in the garden I saw Bob and John Skelton riding away going east on the street parallel with the railroad, and which ran back of Judge Tally's residence]. Istaid there and observed them and saw them after they had passed the barn of Mr. Harris on the corner. I saw them coming on the street south passing my barn—along the street that runs in front of my barn. When I saw them going in that direction I walked through my barn lot to the fence and saw them at the corner, [the intersection of this south and north street passing Tally's barn with the east and west street upon which his residence fronts]. About that time Jim Skelton joined them. I didn't notice where he came from. Then I called to Bob Skelton. He turned and rode back from where I saw them at the corner, * * * and I crossed the fence and met him near the corner of my [47] barn lot. He rode up within six or eight or ten feet, and I said to him: 'Bob, where are you going?' He said to me: 'Going up the road.' I asked him again: 'Where are you going?' and he answered: 'Up the road, and I am in a hurry.'  He turned and rode off, went back the way he came when I called to him."

Robert Skelton's testimony agrees with Judge Tally's fully as to this interview, only he added that he said further to Tally that he was in a hurry and did not want to talk. And they are both fully corroborated as to the circumstances under which this interview was had, its brevity and how it was brought about, by Mr. Shelley, an wholly disinterested witness, who saw John and Robert Skelton as they rode along the east and west street back of Judge Tally's premises—they passed the witness there—saw them turn south on the street in front of Judge Tally's barn, and proceed along that street beyond the point of the interview between Tally and Robert Skelton, then saw the latter riding back to where Tally was, sit there on his horse while the witness could have counted fifteen or twenty, then turn, rejoin the others and ride out east. And there is nothing in this account of this interview which materially conflicts with that given by J. D. Snodgrass. James Skelton, as has been said, lived at Judge Tally's. He slept there the night before the homicide and went thence, as we have seen, in pursuit of Ross. Judge swears he did not see him that morning except when he joined Robert and John at the corner about the time of the conversation between Robert and himself. It is shown by the evidence of Mr. Proctor, who slept with James the night before, that the latter arose and left the room quite early that morning. It was also shown that he was down town at an early hour. Judge Tally must have arisen after James went down town. The testimony and all the circumstances concur in showing that when James came back to the house, mounted and armed, and went in to get "a piece of meat and bread," as he expressed it, leaving his gun and horse at or near the front gate, Judge Tally was either in his garden back of his house, or more probably in his barn yard, which was back of an adjoining house. From neither of these positions could he see the horse or gun at the front, or James in the house. Judge Tally also testifies that he did not see [48] Walter Skelton at all that morning, or know of his son's going for a horse for him until the Skelton party had left Scottsboro. This is somewhat strange in view of the facts that Walter Skelton came to his house that morning, talked with Mrs. Tally, and induced her to procure a horse for him to ride in pursuit of Ross, and that young Tally was sent from the house to the livery stable for the horse. But it reasonably appears from the evidence that all this happened before Judge Tally got up. It is shown that Mrs. Tally's cook was sick and that she had to be up early to prepare breakfast, and did get up some time before Judge Tally. And the other testimony and the surrounding circumstances concur in showing that all that occurred at Judge Tally's house with reference to this horse occurred in the interval between the times Judge and Mrs. Tally arose.

The respondent further testifies that he did not see his wife after she arose that morning until he returned to the house from the barn lot where he had the interview with Robert Skelton; that he returned thence to his house, saw his wife and she then told him of the flight of Ross, which had been communicated to her by Walter Skelton, and of the pursuit of the Skeltons; and that he did not know and had received no information before this that Ross had gone, and that the Skeltons were pursuing him. At this juncture, it is to be borne in mind, all the Skeltons had left Scottsboro. And this, with proof of the respondent's good character, is the case of the defense so far as the first count of the information is concerned. On the evidence for the State which we here set out, taken in connection with this evidence for the respondent, can it be said that Judge Tally, when he was in the presence of Robert, and in sight of John and James Skelton that morning, knew of their intention to take the life of Ross, and that they were setting out to presently execute that intention as is charged in the several specifications under the first count? We think not. There is no affirmative evidence, such as declarations and the like on their part might have afforded, that they themselves ever entertained the purpose to take life prior to that morning except in the event Ross failed and refused to leave Scottsboro. And they might well have entertained such purpose without Tally's knowl [49] edge of it. It might well have been that, intending to kill Ross, the Skeltons would have concealed their design from Tally on account of his official position and notwithstanding his family relations with them. Again, there is no positive evidence, if they so intended prior to the day of the homicide, that Tally was ever informed or knew of their intention. True it may be said that he knew Ross had to leave there, and failing this the Skeltons would, or intended to, kill him; but only knowing this, the fact that Ross had gone, which fact according to the State's theory he must have known when the Skeltons left Scottsboro, it would have been but natural for him to have concluded, that as the condition upon which Ross was to live had been met, the conditional purpose to take his life was abandoned. True it is also that he had in some degree the same motive to destroy Ross that moved the Skeltons to his destruction in the sense that he, too, by reason of his marital relations, was a victim of the wrong that Ross had wrought upon them all; but this motive might well have impelled the Skeltons to the extreme to which they went in purpose and deed, while he was restrained by that respect for which his profession engenders, and by the environment of his high judicial position, from yielding in intent or action to the deadly impulse the wrong was conducive to. There is, we repeat, no affirmative evidence that Judge Tally knew, until after the Skeltons had gone, that they intended to take the life of Ross. There were circumstances proved which unexplained might have justified—indeed would have justified—the inference that he did. But explanations have been made which are either affirmatively satisfactory, or cast such reasonable doubt on the conclusions to which without the explanations the circumstances would have led us, that we do not feel justified in accepting the conclusions. For instance, the hiring of the horse which Walter rode: As presented by the State in all its baldness that fact was most incriminating. But when taken in connection with the facts that the horse was to serve an occasion which was born of the flight of Ross while Tally slept, and was subserved by the procurement of the horse before he arose, that it was charged to him because ordered by his wife and paid for by him, after the circumstances [50] of the hiring and use of the animal had been used in the public mind to connect him with the tragedy, because by the course of previous dealing between him and the livery-man in respect of orders by his wife he was under both a moral and a legal obligation to pay, its probative farce against him is utterly destroyed. The presence that morning at his house of Walter Skelton is a circumstance of suspicion and would be of incrimination, but for the fact, which is shown by other evidence than Tally's, and against which nothing has been offered affording a contrary inference even that Walter had come and gone before Tally got out of bed in an upstairs room. Again, the naked fact that James came there after Tally had arisen, armed and mounted has of course a natural tendency to show that Tally knew the purpose of such unwonted and warlike preparations  on that day when to ride about the country with guns is such an unusual thing. But according to the testimony, not only of Tally and Robert Skelton, but also ofMr. Shelley, a witness for the defense, and of Mr. Snodgrass, a witness for the State, the respondent was at that time in his barn lot, or next it in the side street, from which point he could see neither Walter Skelton in the house nor his gun standing against the front gate, nor his horse hitched in the street in front at the house and gate. The presence of Tally with Robert Skelton in the street near the farmer's barn as the Skeltons were starting on their chase of Ross, standing alone and unqualified, might prove much against him. But the evidence of himself and Robert Skelton, taken with that of Mr. Shelley, a disinterested witness, satisfies us that that meeting was momentary and wholly casual.  Skelton had passed Tally and was proceeding on his journey when Tally hailed him and had him came back. Clearly he had not come that way to see Tally. It is not pretended that they had met before on that morning, or had any communication after Ross's fight. Tally’s being there is reasonably accounted for without connecting his presence in any way with this Ross matter. Skelton's passing there was reasonable without any reference to Tally; it was his route to his destination. They were together about long enough for the words they give to have passed between them. They [51] were not together long enough, we should say, for such conversation as would naturally have passed had they been discussing the flight and pursuitofRoss, what the Skeltons intended todo, what Tally should do meantime at Scottsboro, and the like. The State's witness, Mr. Snodgrass, saw them there, and his evidence does not materially conflict with that of Shelley as tothe length of time they were together. We have already stated the conversation they had as testified toby Tally and Skelton. Though they are tothe last degree interested witnesses, there is nothing before us which would justify our reaching the conclusion with the necessary conviction ofmind that, aught was said other than the words they have deposed to. Moreover, it does not appear, but the contrary does appear upon all the evidence we have, much of which is not tainted by interest, that Tally had any information of Ross's flight when he was talking with Robert Skelton. It is clearly shown that James Skelton did not know it, indeed it had not transpired, when he left the house. It came first to the knowledge of Walter, and it may well be supposed that he and James and all ofthem made their preparations with all possible expedition, losing no time tohunt up and inform Tally. Walter and James were at Tally's house after they knew of it, but there is no evidence that Tally saw either of them. Tally's own and Walter's evidence that they did not see each other and proof of circumstances demonstrate that he did not see James until he was riding away. It is said that Tally must be held to have known the intention of the Skeltons to pursue and kill Ross from seeing Robert and John mounted and armed. How could he know this, how are we tobe justified in holding that he knew this when it is clearly shown that he did not know Ross had gone at all? And had he known that, how could he justify a conclusion that they were going to pursue and slay him as he left Scottsboro, when, according toall the evidence we have as to Tally's knowledge oftheir intentions, they all wanted him to leaveScottsboro and intended he should goin peace. Again, shall the inference of a murderous intent an Tally's part, or of his knowledge of such intent on the part of the Skeltons, be drawn from the mere fact that he was seen on two occasions talking with his brother-in-law in the latter's [52] office for half an hour? Obviously not. Shall the fact that one of these occasions was the day before the killing of Ross lead us to say that Tally knew the Skeltons intended to kill? Of course not. And even less, if possible, would such conclusions be justified when we consider that the only evidence of what passed in these conversations was to the effect, whatever else it may have imported, that Ross should not be killed if he did what he was manifestly trying to do when he was killed; leave Scottsboro.

Some other minor circumstances, really of no probative force—such as that Tally was seen at his front gate that morning, once before and once after the Skeltons had gone, that he saw Robert Skelton riding north on a street some distance from him , which fact he brought out himself, and the like—were put in evidence. These we will not stop to discuss. Nor do we deem it necessary to discuss in this connection—with reference to Tally's knowledge of the Skeltons' intent when he had the brief interview with Robert that morning—Judge Tally's conduct after the Skeltons had gone. That conduct is referable to the knowledge he then had, which had been first imparted to him by his wife, and which soon became the common knowledge of the town, that the Skeltons had gone in pursuit of Ross to kill him; and in our opinion what he did and said after that time will not serve to establish the scienter laid under the first count of the information. We conclude this part of the case by saying that we do not find that Judge Tally had any knowledge of the intention of the Skeltons to kill Ross before or at the time of their departure in pursuit of him, that, therefore, neither of the three specifications under the first count is proved, and we find him not guilty of the charge of willful neglect of official duty presented by that count.

The second count of the information charges that "John B. Tally, Judge of the Ninth Judicial Circuit of the State of Alabama, unmindful of the duties of his said office, was, before the filing of said report of said grand jury, and while in such office, guilty of an offense involving moral turpitude, to-wit, the offense of murder.” There are three specifications under this charge. The averments, among others, of the first specification, following averments of Ross's flight, the Skelton's pursuit and the killing of Ross by them at Stevenson with [53] malice, &c., are, "that said Tally was informed of the intention and purpose of the said Skeltons to unlawfully take the life of the said Ross, and said Tally held communications with said Skeltons touching their said purpose, and said Tally knew of the pursuit of said Ross by the said Skeltons as aforesaid, and had such knowledge at the time said Skeltons were making ready to set out in pursuit of said Ross, and at the time they did set out in such pursuit.” As we have already indicated we are not convinced of the truth of these averments, and as the other matters laid in this specification may be considered as well under the second and third specifications, we will direct our attention solely to them. The second specification charges that the Skeltons "unlawfully and with malice aforethought killed Robert C. Ross by shooting him with a gun," and "that the said John B. Tally, before the said felony and murder was committed, in manner and form aforesaid, on the day aforesaid and in the county and State aforesaid, did aid or abet the said" Skeltons, naming them, "in the commission of the said felony and murder." And the third specification charges "that on Sunday, the 4th day of February, 1894, in the county of Jackson, State of Alabama, the said John B. Tally unlawfully and with malice aforethought killed Robert C. Ross by shooting him with a gun." These charges of aiding or abetting murder and of murder direct, which amount to the same thing under our statute,(Code, § 3704), are, upon considerations, to which we have already adverted, to be sustained, if at all, by evidence of the respondent's connection with the homicide after the Skeltons had left Scottsboro in pursuit of Ross, since we do not find any incriminating connection up to that point of time. Being without conviction that Tally knew of the Skeltons' intention to take Ross's life until after they had departed on their errand of death, and there being no evidence or pretense that between this time and the homicide any communication passed between them and Tally, we reach and declare the conclusion that the respondent did not command direct counsel, instigate 01" encourage the Skeltons to take the life of Ross, and that in whatever and all that was done by them and him, respectively, there was no understanding, preconcert or conspiracy between them and him.

This narrows the issues to three inquiries—two of [54] fact, and one of law: First—a question of fact—Did JudgeTally on Sunday, February 4, 1894, knowing the intention of the Skeltons to take the life of Ross, and after they had gone in pursuit of him, do any act intended to further their design and aid them in the taking of his life? If he did, then, second—a question of law—Is it essential to his guilt that his act should have contributed to the effectuation of their design—to the death of Ross? And if so, third—another inquiry of fact—Did his act contribute to the death of Ross?

There can be no reasonable doubt that Judge Tally knew soon after the Skeltons had departed that they had gone in pursuit of Ross, and that they intended to take his life. Within a few minutes he was informed by his wife that Ross had fled and that the four Skeltons were pursuing him. He had seen three of them mounted and heavily armed. He knew the fourth, even keener on the trail than these, had gone on before. He knew their grievance. The fact that they intended to wreak vengeance in the way they did upon overtaking Ross, was known to all men in Scottsboro, as soon as the flight and pursuit became known. It was in the minds and on the tongues of everybody there. Nothing else was thought or talked of. When Dr. Rorex, voicing the universal apprehension, suggested to him that aid be sent up the road to the dead and wounded, Judge Tally, taking in the full force of the implication that there would be a fight to the death with the Skeltons as assailants, and not dissenting therefrom at all, said with the ken of prophesy, as a reason why he would not be a party to the execution of this humane suggestion, that his folks—the Skeltons—would take care of themselves. How well they took care of themselves—with what exceeding care they conserved their own safety—is shown by the event and the manner in which it was produced. To the other suggestion of Dr. Rorex, resulting from the universal knowledge that unless something was done an awful tragedy would be enacted, that "we telegraph to Stevenson and have them all arrested," and thus prevent the catastrophe, if perchance Ross should reach that point alive, Judge Tally made no direct response; but in the same connection he said:"I am waiting and watching here to see if anybody sends a telegram." What he meant by this is most clearly demonstrated by his subse [55] quent shadowing and following up Ed. Ross, and his conversation with Judge Bridges about putting the operator out of the office before he should send Ed. Ross’s message of warning to his kinsman, Robert C. Ross. This was the situation: Ross was in what he supposed to be secret flight from the Skeltons. He was unaware that his early departure had been seen by one of them. He did not know they were all in full pursuit to take his life. Under these circumstances, the pursuers had every advantage of the pursued. They could come upon him unawares. Being on horse back while he was in a vehicle, coming up to him they could well get beyond and waylay him. This they actually did. Having this tremendous advantage, accentuated by the fact that they were in no danger from Ross even if he saw them unless he was forced to defend himself—that his effort and intent were to get away and not to kill—Judge Tally might well feel satisfied with the posture of affairs, he might well feel assured that his folks would take care of themselves, as they did. All he wanted was that this situation, which portended the death of Ross and the safety of his folks, should not be changed. He would not agree that it should be changed so as to save Ross's life even though at the same time the safety of the Skeltons should be assured, as would have been the result had the authorities at Stevenson been fully advised at the time Dr. Rorex suggested the sending of a telegram there to arrest all parties. He was waiting and watching there to see that the situation was not changed by advice to Ross which would or might enable him to escape death at the hands of his folks. He waited long and watched faithfully, and his patience and vigil were rewarded. He saw Ed. Ross going toward the telegraph office. He at once concluded Ross was going there to warn his kinsman and give him a chance for his life. He followed. His purpose was to stop the message, not to let the warning even start on its journey. This he proposed to do by overawing the operator, a mere youth, or by brute force. Judge Bridges dissuaded him from this course, but he adopted another to destroy this one precarious chance of life which was being held out to Robert C. Ross. It would not do, Bridges advised him, to stop the warning by threatening or overpowering the opera [56] tor. The young man was a new comer and a stranger there, and a resort to moral suasion with him was therefore unpromising and hazardous. Not so with the operator at the other end of the line. He was Judge Tally’s friend of long standing. He, through whose hands Ed. Ross's message of warning was intended to pass, could be approached. And to him Tally addressed himself. Saying to Judge Bridges that he, the Scottsboro operator had a message which he, Tally, did not want sent, and which, under Judge Bridges' advice, Tally had concluded not to stop by threat or force; he adopted another means of stopping it short of the person to whom it was addressed. He telegraphed his friend, the operator at Stevenson, not to let Ross get away. His language was at first written: "Do not let party warned get away." This he handed to the operator to be sent to Stevenson, saying: "This message has something to do with the one you have," referring to Ed. Ross's message. What then passed through his mind we are left to conjecture; but upon further thought he added to the message these words: "Say nothing." What was the full import of this completed message, looking at its terms and the circumstances under which it was sent? One thing is most clear, from all the circumstances and upon the words themselves and in the light of those circumstances. The message beyond all question would never have been sent but for the sending of Ed. Ross's message. It was manifestly and confessedly the offspring of a purpose to thwart the efforts of Ed. Ross to warn his kinsman of the true situation. One element of this situation, which gave Judge Tally great satisfaction with it, was Robert Ross's utter ignorance of the danger he was in. He scouted all suggestions to interfere at all so long as this element of gravest peril to Ross and of assured safety to the Skeltons existed. It was to the end that this element of peril to the one and safety to the other party should not be eliminated that, he had waited and watched all morning to see if anybody attempted to eliminate it by advising the hunted of the oncoming, in deadly purpose, of the hunters, and to prevent by threats or force or in any other possible way the sending of a telegram to advise Ross of this important factor in the posture of affairs with which he had to deal, on the hazard of his life. At the last moment the idea [57] of resorting to threats and force was abandoned as unwise. There was no other way to stop the telegram in the Scottsboro office. It was therefore to go, and the only other way to prevent its reaching Ross was to have it stopped at the Stevenson office. Tally, being dissuaded from the former course, adopted the latter. His purpose was the same throughout, but there was a change in the means he had contemplated for its effectuation.

Whitner, the newcomer and stranger, could not be prevented or dissuaded from putting the message on the wire, but Huddleston, the lifelong friend, who was to take it off the wire, and whose duty it was to deliver it to Ross, might be commanded or persuaded to omit its delivery when he had taken it from the wire to "say nothing." And in that event Ross would remain in ignorance of his danger, the situation, which gave Judge Tally so much satisfaction as that he felt assured his folks could take care of themselves , and which he would not consent to interfere with as suggested by Rorex in a way to conserve the safety of both the Ross and Skelton parties, would remain unchanged, and Ross would go to his death, as he did, without a single chance to raise his hand in defense of his life. The telegram to Ross was: "Four men on horseback with guns following. Look out." Tally's telegram to Huddleston was: "Do not let party warned get away. Say nothing." "Get away" from what or from whom? From whom indeed and in all common sense but from the four men on horseback following with guns to take his life. They alone were in pursuit. They only were following the party warned. From them alone was Ross fleeing. From them only, by what he supposed to be secret flight across the country rather than attempt to board a train guarded by them against him, was he trying to get away. The law had no claim upon him; he had committed no offense of which it took cognizance, and no charge of crime had ever been made against him. Nobody on earth except the four men, the Skeltons, sought to prevent his getting away; and from these Judge Tally, seeing that a chance of escape was about to be afforded him, called upon his friend, Huddleston, to interpose, to destroy that chance and to prevent his getting away. Having formulated his command or request to Huddleston to prevent his getting away and [58] handed it to Whitner for transmission to Huddleston, the thought must have passed through his mind: “How is my command or request to be complied with; how is Huddleston to prevent Ross's getting away." He knew there was no ground to arrest Ross. He knew that Huddleston, although mayor of Stevenson, was utterly without authority or right to stay him for one moment of time. How then was he to proceed? One obvious means to this end presented itself to the respondent's comprehension as he pondered how the thing he wanted to be done could be accomplished. That was that Ross should not be advised of the contents of the dispatch of warning. This would maintain the status quo with which Judge Tally had evinced such complaisance and satisfaction, in which his “folks could take care of themselves," and out of which must result the death of Ross. And to suggest this effective means to his friend he makes Whitner, who then has the original message in his possession add to it the words: “Say nothing." Say nothing about what? Clearly about the subject matter of the two dispatches, nothing about the pursuit of the four men on horseback with guns, nothing about the warning to Ross. Say nothing so that the situation may remain unchanged. Say nothing so that Ross shall continue to be, as he is now, without the chance or hope of escape. In other words and in short, the substance and effect of what Tally said to Huddleston, taking the two dispatches and all the circumstances into the account, was simply this, no more or less: “Ross has fled in the direction of Stevenson. The four Skeltons are following him on horseback with guns to take his life. Ross does not know of the pursuit. An effort is being made to get the word to Ross through you that he is thus pursued 0in order that he may get away from them. If you do not deliver this word to him he cannot escape them. Do not deliver that message, say nothing about it, and thereby prevent his getting away from them." A most careful analysis of the voluminous testimony in this case convinces us beyond a reasonable doubt that this was what Tally intended to convey to Huddleston, and that his message means this and only this to all reasonable comprehension. Other meanings were suggested at the hearing in argument, and in testimony as to uncommuni [59] cated intention which has been excluded, but the suggestions are either entirely unreasonable in themselves or do not at all comport with the attendant circumstances. For instance, it is said that the language of Tally's telegram shows he contemplated that the message to Ross would be delivered. He said: "Do not let the party warned get away," implying, it is argued, that the party referred to had been or would be warned by the delivery of Ed. Ross's message. This view is entirely too literal and technical. The form of expression employed was incident to the brevity usual in telegraphic communication, and was manifestly intended merely as an identification of the version who was not to be allowed to get away. Tally did not care to put the name of this person in this message. He knew a message of warning had been sent to Ross. Ross was the man he did not want to escape; and he referred to him as the party warned in the sense that he was the party to whom the other message had been started. He meant and his message meant that Huddleston should not let the party warned, or intended to be warned, the party referred to in and by Ed. Ross's message, get away, and not that Huddleston was to look after party who had actually received the message of warning. Moreover, he spoke over the wires to Huddleston at the same time Ed. Ross's message was sent, and before there was any possible chance for the warning to have been given to R. C. Ross. He knew this. And it was at that juncture, when nobody had been warned in fact, that he referred to Ross as the party warned, when he could not have been the party warned in other sense than as being the party intended to be warned, and for whom a message of warning had been transmitted from Scottsboro to Stevenson but not delivered to Ross. And it would seem that he especially intended his command or request should be laid upon Huddleston just at this point, for he was careful to tell Whitner, the operator at Scottsboro, that his message was about the same matter as that of Ed. Ross—the warning of R. C. Ross—thus impressing upon him the propriety not to say necessity, of both being sent at the same time. They both were sent and received at the same time, i.e. in immediate succession; and Tally called upon his friend, Huddleston, not to let the person referred to in the other get away, and, as we have seen, [60] indicated to him that the way to prevent his escape was to "say nothing” about the other, and indeed either message. Again, it is suggested that Tally intended by his message to have Huddleston, who was mayor of Stevenson, arrest Ross. There are many elements of improbability, to say the least, about this. In the first place, the word "arrest" is a most common one and in most universal use. We cannot conceive of any man, and especially not of a lawyer and a judge, employing any other word—and especially when a resort is had to telegraphic communications—to express the idea which this suggestion imputes to Tally—a lawyer and a Judge. Then, as we have already seen, there were no grounds for Ross's arrest. Not only did Tally know this, but Huddleston also. The cause of Ross's flight and the Skeltons' pursuit was well known it seems, both in Scottsboro and Stevenson, and to even the most unlearned comprehension the circumstances involve Ross in no liability to arrest. It is said that Tally wanted Ross arrested because he feared that after getting the warning he would lie in wait and kill the Skeltons as they came into Stevenson. This idea is most farfetched in view of Ross's attitude throughout of being purely on the defensive, and not standing even upon that, but flying from the Skeltons, his whole purpose being to escape from them, and not to kill them. The message itself utterly excludes the possibility of any such interpretation and the existence of any such fear 01' intention in the mind of Judge Tally. The fear deposed to is, that Ross would entrench himself at Stevenson and kill the Skeltons as they came. The apprehension clearly evinced by the message was that if he got the warning he would get away, and not that he would tarry and fight. If he got away the Skeltons were in no danger. But Huddleston was besought not to prevent his waiting for and killing the Skeltons, nor to do anything in that line at all, but to prevent his getting away from the Skeltons as everybody knew he was endeavoring to do. Again, it surpasses understanding how Huddleston was to arrest Ross if he obeyed the final injunction of Judge Tally to "say nothing." And that the idea of having Ross arrested was not in Tally's mind further appears from the fact that he would not agree to that being done when it was suggested by Dr. Rorex earlier in the day. Specifically in [61] respect of the words "say nothing" in Tally's message, explanatory suggestions were made by him on the stand. As a reason for them he first said he hoped by their use to keep the scandal secret. As there was nothing in either of the despatches referring to the scandal, the force of this reasoning is not readily felt. But more than this, everybody in Scotsboro and Stevenson knew already a great deal more about the scandal than could possibly have gotten to them through Huddleston saying all he could about those dispatches. Everybody knew it, and Tally must have been fully aware of this general knowledge. Seeming to appreciate the impotency of this suggestion, which however was at first advanced with every appearance of being intended to cover and account for the whole matter, Judge Tally offered another. It was that he meant by using the words" say nothing" to keep Huddleston from disclosing his connection with the message. Why he should have laid such an injunction upon his friend Huddleston, and not upon Judge Bridges to whom he showed the message without these words, nor upon an entire stranger, young Whitner, at Scottsboro, is much more than we can understand. It also surpasses comprehension that he could have expected Huddleston to arrest Ross without saying to him or anybody else a word about the telegram on or because of which the arrest was made. There is nothing in all this. That Tally's message will bear the construction we have put on it and no other, we have no doubt at all, on the considerations we have advanced; and our view of its meaning and intent is strengthened by the respondent's self-consciousness of its bad purpose and intent which is shown by the facts, which the evidence leaves us no room to doubt, that he surreptitiously abstracted the original message from the files in the telegraph office, and swore on the preliminary examination of the Skeltons that he sent a telegram to Stevenson that morning "but not about this matter. It was to a friend about another matter; nothing concerning this case;"and his further testimony on that trial going to show that he did not know Ed. Ross, did not follow him to the telegraph office, and did not know whether he was in the office while he, Tally, was there or not.

We therefore, find and hold that John B. Tally, with full knowledge that the Skeltons were in pursuit of Ross [62] with the intent to take his life, committed acts, namely, kept watch at Scottsboro to prevent warning of danger being sent to Ross, and, with like purpose, sent the message to Huddleston, which were calculated to aid, and were committed by him with the intent to aid, the said Skeltons to take the life of Ross under circumstances which rendered them guilty of murder.

And we are next to consider and determine the second inquiry stated above, namely: Whether it is essential to the guilt of Judge Tally as charged in the second count of the information that the said acts, thus adapted, intended and committed by him; should in fact have aided the said Skeltons to take the life of the said Ross, should have in fact contributed to his death at their hands.

As the life of Ross was not taken by the hands of Tally, the criminal consequences of the homicide could only have been visited upon him at the common law, if at all, as a principal in the second degree or as an accessory before the fact; he could not have been charged, as he is in this information, directly with the crime of murder as a principal in the first degree. Our statute has abolished the common law distinctions between accessories before the fact and principals, and between principals in the first and second degrees in cases of felony, and provided that" all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors."—Code, § 3704. And though the respondent here is proceeded against by virtue of this statute as a principal in the first degree, the evidence, it being confessed that he did not personally, or in such other way as to make him a principal in the first degree at common law, take the life of Ross, must present him in the light either of an accessory before the fact or as a principal in the second degree, as those distinctions obtained before the enactment of the statute to which we have adverted, or he cannot be convicted. We have already stated our conclusion—and the considerations which led us to it—that Judge Tally did not command, direct, incite, counsel , or encourage the Skeltons to the [63] murder of Ross. We have failed to find, and have so stated, that he knew of their felonious purpose before their departure from Scottsboro in pursuit of Ross. Up to that time there was no instigation or incitement by him to the commission of the crime by them, and after that he did not see or communicate with any of them until after the death of Ross, and hence pending the pursuit he could not have encouraged or instigated them to kill Ross. Judge Tally was, therefore, not, on the view we take of the evidence, an accessory before the fact to the killing of Ross. To be guilty of murder, therefore, not being a common law principal and not being an accessory before the fact-to be concerned in the commission of the offense within the meaning of our statute—he must be found to have aided or abetted the Skeltons in the commission of the offense in such sort as to constitute him at common law a principal in the second degree.  A principal in this degree is one who is present at the commission of a felony by the hand of the principal in the first degree, and who being thus present aids or abets, or aids and abets the latter therein. The presence which this definition requires need not be actual, physical juxtaposition in respect of the personal perpetrator of the crime. It is enough, so far as presence is concerned, for the principal in the second degree to be in a position to aid the commission of the crime by others. It is enough if he stands guard while the act is being perpetrated by others, to prevent interference with them or to warn them of the approach of danger; and it is immaterial how distant from the scene of the crime his vigil is maintained provided it gives some promise of protection to those engaged in its active commission. At whatever distance he may be, he is present in legal contemplation if he is at the time performing any act in furtherance of the crime, 01' is in a position to give information to the principal which would be helpful to the end in view, or to prevent others from doing any act, by way of warning the intended victim or otherwise, which would be but an obstacle in the way of the consummation of the crime, or render its accomplishment more difficult. This is well illustrated by the case of State of Nevada v. Hamilton and Laurie, 13 Nev. 386, in which a plan was arranged between Laurie and others to rob the treasure of Wells, Fargo & Co., on the road between [64] Eureka and some point in Nye county. Laurie was to ascertain when the treasure left Eureka, and signal his confederates by building a fire on the top of a mountain in Eureka county, which could be seen by them in Nye county, thirty or forty miles distant. This signal was given by him, and his confederates, advised by it, met the stage, attacked and attempted to rob it, and in the attempt killed one of the guards. Laurie was indicted with the rest for murder, and put on his trial in Nye county, and made the point that inasmuch as a statute of Nevada required that an accessory before or after the fact should be tried in the county where his offense was committed, he could not be held under the pending indictment or tried in the county of Nye, where the robbery was attempted, and the murder committed. But the Supreme Court of that State held that, if he was an accessory before the fact, he was also in legal contemplation present and aiding and abetting at the fact, and was, therefore, a principal in the second degree, and indictable, triable and punishable in N ye county as principal in the first degree, under a statute like section 3704 of our Code. He was constructively present, though thirty or forty miles away, and he was guilty as a principal in the second degree in that from and across this distance he aided and abetted his confederates by the beacon lights which he set upon a hill. It was as if he had been endowed with a voice to compass the intervening space and to advise his accomplices of the approach of the treasure, or as if his words had been transmitted over a telephone or a telegraph line to the ears of his distant confederates. This treasure stage was proceeding on its way without notice to those in charge of it of the impending onslaught upon it. If it had been apprehended by Laurie and his confederates that the people of Eureka—those interested in the treasure, and in the lives of the guards who went with it—would, after its departure, become aware of the situation and dispatch a courier to overtake the stage and warn its occupants, and Laurie had remained there to give warning by signal lights or telegram of the departure of this courier so that he might be intercepted and his message stopped and the stage set upon unawares, and all this had been done, it cannot for a moment be doubted that on these facts also Laurie would have been present at the scene [65] of the attempted robbery in legal sense, and been guilty  thereof as a principal in the second degree, though he was all the while much further away in point of physical fact than the distance between Scottsboro and Stevenson. And this upon the principle, as stated by the Nevada court, that "Were several persons confederate together for the purpose of committing a crime which is to be accomplished in pursuance of a common plan, all who do any act which contributes to the accomplishment of their design are principals, whether actually present at its commission or not. They are deemed to be constructively present, though in fact they may be absent."—1 Bish. Cr. Law, § 650; 1 Chitty Cr. Law, p. 256; 1 Whar. Cr. Law, §§ 206 et seq.; Roscoe's Cr. Evidence, pp. 178-9; Raiford v. State, 59 Ala. 106; Griffith v. State, 90 Ala. 583.

So far, therefore, as presence goes Judge Tally, on guard at Scottsboro to prevent warnings being sent to Ross or intercepting or attempting to intercept messages of warning which had started on their flight, was in legal contemplation present at Stevenson, the scene of the homicide, standing over Huddleston to stay him in the performance of his duty of delivering warnings to Ross. He was constructively there, and hence, for all practical legal purposes, actually there. Being thus present, did he aid or abet the killing of Ross? What is meant by these terms, and what has one to do to bring himself within them? It is said in Raiford's Case, supra, that "the words aid and abet are pretty much the synonyms of each other;" and this has doubtless come to be true in the law though originally a different meaning attached to each. The legal definition of “aid” is not different from its meaning in common parlance. It means to assist, to supplement the efforts of another. Rap. & L. Law Dict., p. 43. "Abet" is a French word compounded of the two words a and beter, to bait or excite an animal; and Rapalje and Lawrence thus define it: "To abet is to incite or encourage a person to commit crime; an abettor is a person who, being present or in the neighborhood, incites another to commit a crime, and thus becomes a principal in the offense.”— Rap. & L. Law Dict., p. 4. By the amalgamation of the two words in meaning—by making synonyms of them—it may be said that to abet has come to mean to aid by [66] presence, actual or constructive, and incitement, and that to aid means not only actual assistance, the supplementing of another's efforts, but also presence for the purposes of such actual assistance as the circumstances may demand or admit of, and the incitement and encouragement which the fact of such presence for such purposes naturally imports and implies. So we have this definition of the two terms by the late Chief Justice Stone: "The words aid and abet, in legal phrase, are pretty much the synonyms of each other. They comprehend all assistance rendered by acts, or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.”— Raiford v. State, 59 Ala. 106. This definition was sufficient for the case then in hand, and it is in the form not infrequently found in the books. But it is incomplete. Mere presence for the purpose of rendering aid obviously is not aid in the substantive sense of assistance by an act supplementary to the act of the principal. Nor is it aid in the original sense of abetting, nor abetting in any sense, unless presence with the purpose of giving aid, if necessary, was preconcerted or in accordance with the general plan conceived by the principal and the person charged as an aider or abettor, or, at the very least, unless the principal knew of the presence, with intent to aid, of such person. For manifestly in such case, there being no actual, substantive assistance and no encouragement by words, the only aid possible would be the incitement and encouragement of the fact that another was present for the purpose of assistance, and with the intent to assist if necessary. And in the nature of things, the fact of presence and purpose to aid could not incite or encourage or embolden the principal unless he knew of the existence of that fact. That kind of aid operates solely upon the mentality of the actual perpetrator; when rendered at all it is by way of assurance to his mind in the undertaking he is upon, and it nerves him to the deed and helps him execute [67] it through a consciousness—a purely mental condition that another is standing by in a position to help him if help becomes necessary; who will come to his aid if aid is needed. And that there could be this consciousness without any knowledge of the fact of such other's presence and purpose can not be conceived. That one may be encouraged or incited to an act by a consideration of which he is wholly oblivious and which has never addressed itself to his mind, is far beyond the limit of finite comprehension. The definition we have quoted is, as an abstract proposition, clearly at fault. As applied in the concrete to cases of confederacy as it is, we undertake to say, whenever it is stated in this form, it is free from objection. But in the absence of confederacy, or at least of knowledge on the part of the actual perpetrator of a crime, one can not be a principal in the second degree who is present intending to aid and does not aid by word or deed. The definition must go further. It should appear by it that to be an aider or abettor when no assistance is given or word uttered, the person so charged must have been present by preconcert, special or general, or atleast to the knowledge of the principal, with the intent to aid him. This view is very clearly stated by Mr. Wharton. He says: "It is not necessary, therefore, to prove that the party actually aided in the commission of the offense; if he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able to readily to comp, to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law, he was aiding and abetting." (The italization is ours.)—1 Whart. Cr. Law, § 210, And the same idea is thus expressed by Mr. Stephens in his summary of Criminal Law: "The aiding and abetting must involve some participation; mere presence without participation, will not suffice if no act whatever is done in concert, and no confidence intentionally imported by such presence to the perpetrators.” See Connaughty v. State, 1 Wis. 143, 144. And Mr. Bishop says: "A principal in the second degree is one who is present lending his countenance and encouragement, or otherwise aiding, while another does the act.”—1 Bish. Cr. Law, 648. And Mr. Wharton further says: "Something [68] must be shown inthe conduct of the bystander, which indicates [to the perpetrator, manifestly] a design to encourage, incite, or, in some manner afford aid or consent to the particular act; though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone will be regarded as an encouragement. * * * The confederacy must be real; * * * mere consent to a crime when no aid is given, and no encouragement rendered does not amount to participation."—l Whart. Cr. Law, §§ 211 a, 211 c, 211 d. And to like effect are the following authorities: The People v. Woodward, 45 Cal. 293 ; White v. The People, 81 Ill. 333; Cooper v. Johnson, 81 Mo. 483; Notsfinger  v. State, 7 Tex. A pp. 301; True v. Commonwealth, 14 So. W. Rep. 684; 1 Am. & Eng. Encyc. of Law, p. 62; Whart. Cr. Ev., 440. Our own cases fully support these views. Thus in Wicks v. State, 44 Ala. 398, with reference to section 3704 of the Code it is said: "The testimony must show an actual participation

In the commission of the offense, else the party charged can not be convicted under this statute." And in Cabbell  v. State, 46 Ala. 195, a mob had overpowered an officer and taken his prisoner into a house, where they were assaulting him with intent to murder. The defendant, coming upon the scene at this juncture, and being informed that the mob was trying to kill the prisoner on account of the offense for which he had been arrested, said: "That is right, kill him ; God damn him. The question was whether on this evidence the defendant was an aider and abettor in the assault made by the mob; and upon this the court said: "It is not pretended that the defendant committed the assault—it was the act of the mob; nor was it seriously contended that he was in fact a member of that unlawful assembly. Consequently the words uttered by him can not be held to have encouraged or aided the persons by whom the assault was committed, unless addressed to or at least heard by them or some of them.” Here Cabbell had the guilty intent; he wanted the prisoner killed; and he did an act calculated to contribute to the execution of that intent; he uttered words of encouragement and incitement. But he was adjudged to be not guilty, because what he did, though with criminal [69] intent and calculated to accomplish or aid in the accomplishment of a criminal result, did not in point of fact contribute to that result. And this proposition is directly supported by Raiford v. State, supra, when the elliptical definition of aid and abet is rounded out, as we have shown it must be, and also in a general way by Frank v. State, 27 Ala. 37; Tidwell v. State, 70 Ala. 33; Jordan v. State, 79 Ala. 9, 13, and Griffith v. State, 90 Ala. 583.

We are therefore clear to the conclusion that before Judge Tally can be found guilty of aiding and abetting the Skeltons to kill Ross , it must appear that his vigil at Scottsboro to prevent Ross from being warned of his danger was by preconcert with them, or at least known to them, whereby they would naturally be incited, encouraged and emboldened—"given confidence"—to the deed, or that he aided them to kill Ross, contributed to Ross's death in point of physical fact by means of the telegram he sent to Huddleston.

The assistance given, however, need not contribute to the criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it. It is quite enough if the aid merely tenders it easier for the principal actor to accomplish the end intended by him and the aider and abettor, though in all human probability the end would have been attained without it. If the aid in homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a single chance of life, which but for it he would have had he who furnishes such aid is guilty though it can not be known or shown that the dead man, in the absence thereof, would have availed himself of that chance. As where one counsels murder he is guilty as an accessory before the fact, though it appears to be probable that murder would have been done without his counsel, and as where one being: present by concert to aid if necessary is guilty as a principal in the second degree, though had he been absent murder would have been committed, so where he who facilitates murder, even by so much as destroying a single chance of life the assailed might otherwise have had, he thereby supplements the efforts of the perpetrator, and he is guilty as principal in the second degree at common law, and is principal in the first degree under our statute, notwithstanding it may [70] be found that in all human probability the chance would not have been availed of, and death would have resulted anyway.

We have already said enough to indicate the grounds of the conclusion which we now announce, that Tally's standing guard at the telegraph office in Scottsboro to prevent Ross's being warned of the pursuit of the Skeltons was not by preconcert with them, and was not known to them. It is even clear, and more certain that they knew neither of the occasion nor the fact of the sending of the message by him to Huddleston. And hence they were not and could not have been aided in the execution of their purpose to kill by the keeping of this vigil, or by the mere fact of the forwarding of the message to Stevenson, since these facts in and of themselves could not have given them any actual, substantial help as distinguished from incitement and encouragement, and they could not have aided them by way of incitement and encouragement, because they were ignorant of them. And so we are come to a consideration of the effect, if any, produced upon the situation at Stevenson by the message of Judge Tally to Huddleston. Its effect upon the situation could only have been through Huddleston, and upon his action in respect of the delivery to Ross of the message of warning sent by Ed. Ross. This latter message reached Huddleston for Ross, we suppose, about five minutes—certainly not more than ten minutes—before Ross arrived at Stevenson. Immediately upon the heels of it, substantially at the same time, Tally's message to Huddleston was received by the latter. Ed. Ross's message imported extreme urgency in its delivery, and Tally's to Huddleston, though by no means so intended, emphasized the necessity and importance, from the standpoint of duty, for the earliest possible delivery of Ed. Ross's message to Robert C. Ross; and it was the manifest duty of Huddleston to deliver it at the earliest practicable moment of time.—Law of Telegraphy, Scott &; Jernigan, § 188. Huddleston appears to have appreciated the urgency of the case, and at first to have intended doing his duty. Upon receiving the two messages, he went at once without waiting to copy them to the Stevenson Hotel, which is located very near the telegraph office, in quest of Ross, upon the idea that he might have already arrived. We are to presume a purpose to do what duty [71] enjoins until the contrary appears; and we, therefore, should assume that Huddleston intended to deliver the message to Ross, or to inform him of its contents had he been in the hotel. Not finding him there J for he had not yet reached Stevenson, Huddleston returned to the door of the depot up stairs in which was the telegraph office. By this time the command which Judge Tally had laid upon him had overmastered his sense of duty and diverted him from his purpose to deliver Ed. Ross's message to Robert. Standing there at the door he saw a hack approaching from the direction of Scottsboro. He said then that he supposed Ross was in that hack. Wedo not think it was incumbent upon him, inasmuch as the hack was being driven directly to the depot, to go down the road to meet it, though the situation was then more urgent than was indicated by the telegrams in that the Skeltons were at that time skulking on the flanks of and immediately behind the hack; but there is no evidence that Huddleston knew this. But we do not doubt that it was Huddleston's duty to go out to the road along which the hack was being driven, at a point opposite his own position at the depot, and near to it, and there and then have delivered the message or made known its contents to Ross. The only explanation he offers for not then delivering the message or making known its contents to Ross was—not that he could not have done it, that was entirely practicable—but that he had not taken a copy of it; a consideration which did not prevent his going to the hotel for the purpose of delivery before he saw Ross approaching, and which, had his original purpose continued, we cannot believe would have swerved him from his plain duty at this juncture. Presuming that he would have done this because it was his duty to do it—a duty which he at first appreciated—and finding as a fact that he did not do it, the reason for his default is found in the injunction laid upon him by Judge Tally. He did not warn Ross because he did not want Ross to get away, and this because Judge Tally had asked him not to let Ross get away. So that as he stood there at the door he mapped out a course of action. He would not deliver the message immediately, if at all, but he would send off for the town marshal, and in the meantime he would call William Tally from over the way and confer with him as to what should be done; Ross to be [72] the while wholly unadvised of the contents of the message from his kinsman, and wholly ignorant of the pursuit of the Skeltons. So he sends a man in search of the marshal whose whereabouts, and of consequence the time necessary to find and bring whom to the station, were unknown; beckons to William Tally to come to him, then turns and goes up stairs into the telegraph office. He says he went up there to copy Ross's message for delivery to him. If this be true, this was only another factor, so we have seen, in the delay that Judge Tally's message had determined him upon, for while at first he was anxious to deliver the message or its contents uncopied to Ross, when he thought Ross might be at the hotel, and went there to find him for that purpose, when Ross was actually in sight of him and rapidly approaching him, he deemed it most important to copy the message before advising Ross. It was also into this up stairs office that he invited William Tally, and we cannot escape the conclusion that his purpose in going there before delivering the message was to have a consultation with William Tally as to what should be (lone before advising Ross, and also to give the marshal time to arrive, so that, should they conclude to adopt that course, they could have Ross arrested. And it cannot, we think, be doubted that he then had no purpose whatever of apprising Ross of the contents of the message, if ever, until he had had this conference with the brother of the man who had asked him not to deliver it at all. That this delay was to conserve such ulterior purpose as might be born of this conference, was wholly unwarranted and was caused by the telegram of Judge Tally to Huddleston, we believe beyond a reasonable doubt.

It remains to be determined whether the unwarranted delay in the delivery of the message to Ross, or in advising him of its contents, thus caused by Judge Tally with intent thereby to aid the Skeltons to kill Ross, did in fact aid them or contribute to the death of Ross by making it easier than it would otherwise have been for the Skeltons to kill him, by depriving him of some advantage he would have had had he been advised of its contents when his carriage stopped or immediately upon his alighting from it, or by leaving him without some chance of life which would have been his had Huddleston done his duty.

[73] The telegram, we have said, should have been delivered, or its contents made known, to Ross at the time the hack came opposite where Huddleston was and stopped. Huddleston and William Tally were equidistant from this point when the former called to the latter, at which time also Huddleston had seen the hack approaching this point. Tally, going to Huddleston, reached this middle point between them, unhastened as Huddleston should have been by the urgency of the message just as the carriage got there and stopped. It is, therefore clear that had Huddleston, instead of calling Tally and going into the depot, himself have gone out to the road along which the carriage was approaching, and which was not more than one hundred feet from him, he would have gotten there certainly by the time it stopped, and have acquainted Ross with the contents of the message, with the fact that four men were pursuing him with guns to take his life, before Ross alighted from the hack.

Being thus advised, and not knowing of the immediate proximity of the Skeltons, it may be that Ross would have alighted as he did, exposed himself to the Skeltons' fire as he did and been killed as he was. But on the other hand, the Skeltons were at that time dismounted, and two of them at least, a long way from their horses, and none of them were in his front up the road, and he had a chance of escape by continued flight in the vehicle. Again, he might then and there have put himself under the protection of Huddleston as an officer of the law and had the bystanders, those in the immediate neighborhood of whom there were several, summoned to help protect him. This might have saved his life; it was a chance that he had. But, if it be conceded that, as he would not have known of the proximity of the Skeltons from mere knowledge that they were in pursuit, he would have alighted precisely as and when he did, yet when the first shot was fired Ross would have known that the man who fired it was one of the Skeltons, and that three others of them were present in ambush armed with guns to take his life. Knowing this, the hopelessness of standing his ground and attempting to defend himself from his enemies, overpowering in number and secure in their hiding places, while he stood in the open street, would have been at once manifest to him; and in [74] stead of standing there as he did, knowing only as he did that some one man, whom he did not know had fired a gun, and peering and craning his neck to see whence the shot came and who fired it, he could and doubtless would have sought safety by flight in the opposite direction, in which was the Union Hotel scarce an hundred feet away. And in view of the fact that he was hit only once by the numerous shots that were fired at him while he stood there in the open, and that not in a vital or disabling part, it is very probable that had he attempted that mode of escape, as soon as the first shot was fired, he would have reached the hotel in perfect safety. Certain it is that making that effort he would have gone away from the lurking places of his enemies, and he would not, as he did in his ignorance of the true situation, have placed himself where John Skelton at close quarters could and did shoot him to death from behind his back. But whether he would or would not have reached a place of refuge, we need not inquire or find. The knowledge that he would have had, if the telegram of Ed, Ross had been delivered to him when it could and should have been delivered, of the pursuit of the Skeltons, together with the knowledge which would have been imparted to him by the report of the first gun in  connection with the contents of the message, would instantly have advised him of the extent of his danger—a danger which he could not combat, which was deadly in character and from which, as he would naturally have been at once impressed, the only hope of escape lay in immediate flight. That was a chance for his life that this knowledge would have given him. That was a chance of which the withholding of this know ledge deprived him. Tally’s telegram to Huddleston deprived him of that knowledge. Tally through Huddleston deprived him of that chance. Again, after having been shot m the legs and partially disabled by one of the many shots fired at him by Robert, James, and Walter Skelton, as he stood fully exposed to their broadside, he in his then crippled condition made an effort to find protection behind the oil house, the nearest building to him. Only these three men had fired up to that time. He knew of the presence of these three only. The house sheltered him from two of these men and partially also from the third. He got there and stood facing in the [75] direction these three were. And he called aloud for protection from them meantime keeping a lookout for them and intending no doubt to protect himself from them if he could. He knew of the presence of these three only. Nobody had seen John Skelton. He did not know that John Skelton was there. Had he gotten Ed. Ross's telegram this he would have known, that there were four of them, that only three had shot at him that the other was somewhere hidden in the immediate vicinity. And while seeking to escape from or guard himself from the other three, while he was by the side of the oil house, he would also have sought to guard himself against the fourth. He was off his guard as as to this fourth man, John Skelton, because he was ignorant of his presence. This ignorance was directly due to Tally's active interference. Tally's aid to the Skeltons by way of preventing Ross being warned enabled John Skelton to come upon Ross from his rear and shoot him down. Ross went to his death, guarding himself against the other three and calling for protection from them without even knowing that the man who killed him was nearer to him than Scottsboro. Can it be doubted that Ross's utter ignorance of John Skelton's presence, with the others at Stevenson, made it easier for John Skelton to take his life? Can it be doubted that his ignorance of the presence of all four Skeltons, when the first gun was fired by Robert Skelton at Bloodwood, when had he known it, he could have fled in the appreciable time between the time of the firing of this first and the other shots—the next one being fired by the same man—made it easier for them to take his life? Can it be doubted in any case that murder by lying in wait is facilitated by the unconsciousness of the victim? Or in any case, that the chances of the intended victim would be improved and his death rendered more difficult of accomplishment, if the first unfruitful shot apprises him of the number and identity of his assailants and the full scope and measure of their motive and purposes? We cannot believe otherwise. It is inconceivable to us, after the maturest consideration reflection and discussion, but that Ross's predicament was rendered infinitely more desperate, his escape more difficult and his death of much more easy and certain accomplishment by the withholding from him of the mes [76] sage of Ed. Ross. This withholding was the work of Judge Tally. An intent to aid the Skeltons to take the life of Ross actuated him to it. The intent was effectuated, they thereby were enabled to take him unawares, and to send him to his death without, we doubt not, his ever actually knowing who sought his life, or being able to raise a hand in defense, or to take an advised, step in retreat. And we are impelled to find that John B. Tally aided and abetted the murder of Robert C. Ross, as alleged in the second specification of the second count of the information; and to adjudge that he is guilty as charged in that specification, and guilty of murder as charged in said second count. And judgment deposing him from office will be entered on the records of this court.

No consideration or conclusion of fact in this opinion must be allowed to exert any influence upon the trials of the Skeltons and Judge Tally on the indictments for murder now pending against them.

HEAD, J., dissenting.—I am of opinion the respondent should be acquitted of both charges. I do not believe, beyond a reasonable doubt, that respondent intended, in sending the telegram to Huddleston, to aid or abet in the murder of Ross. I do not believe, beyond a reasonable doubt, that the telegram of warning would have been delivered to Ross by Huddleston, before the shooting began, if the telegram of the respondent had not been sent.

BRICKELL, C. J., not sitting.

[*] The opinion in this case was rendered August 9, 1894; but by reason of the importance of the case, it is reported in this volume, without regard to date of judgment.

[130] Edward D. Wilford (Natali J.H. Todd, on the brief), New York, NY, for Defendant-Appellant.

Jennifer G. Rodgers, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief), on behalf of Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: WINTER, RAGGI, Circuit Judges, and DEARIE, Chief District Judge.^[1]

Judge RAGGI concurs in part in a separate opinion.

Judge DEARIE dissents in part in a separate opinion.

REENA RAGGI, Circuit Judge:

I.  Background...........................................................................132      

A.  2001: The Initial FBI Investigation into Co-Defendant Tarik Shah.................132     

B.  2004: Shah Offers to Support al Qaeda............................................132      

C.  2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support....133      

D.  Prosecution and Conviction ......................................................133

II.  Discussion...........................................................................134      

A.  18 U.S.C. § 2339B Is Not Unconstitutionally Vague as Applied to Sabir's Case......................134

1.  The Statutory Framework......................................................134          

2.  Sabir's Vagueness Claim......................................................136              

a.  Sabir Fails to Demonstrate Facial Vagueness or Overbreadth ..............136              

b.  Sabir Fails To Demonstrate that § 2339B Is Unconstitutionally Vague as Applied to his Case................138 

   (1)  Sabir's Vagueness Claim Is Properly Reviewed as Applied.............138                  

   (2)  The Standards for As-Applied Review.................................139                  

   (3)  Sabir's Vagueness Challenge to the Statutory Proscriptions Fails..........................140                  

   (4)  The "Medicine" Exception Does Not Render § 2339B Unconstitutionally Vague as Applied to Sabir..............142  

B.  The Trial Evidence Was Sufficient To Support Sabir's Conviction..................144          

1.  Count One: Conspiracy........................................................144          

2.  Count Two: Attempt...........................................................145              

a.  Intent...................................................................145              

b.  Substantial Step.........................................................146                  

   (1)  The "Substantial Step" Requirement Expands Attempt Beyond the Common Law.............................................146                 

   (2)  Identifying a Substantial Step by Reference to the Crime Being Attempted ..................................................147   

   (3)  The Evidence Manifests a Substantial Step Towards the Provision of Material Support in the Form of Personnel............148                  

   (4)  The Dissent's Mistaken View of the Substantial Step Requirement.......................................................149                       

      (a)  Sabir Did More Than Express a Radical Idea When He Produced Himself as a Doctor Sworn To Work Under the Direction of al Qaeda.........149
      (b)  The Provision of Personnel and the Subsequent Provision of Expert Services by Such Personnel Are Distinct Forms of Material Support...150                       

      (c)  Upholding Sabir's Attempt Conviction Raises No Double Jeopardy Concerns............................................153                       

      (d)  No Government Conduct Precluded a Jury Finding of a Substantial Step ..............................................153      

C.  The District Court Reasonably Rejected Sabir's Batson Challenge..............154          

 1.  Prospective Juror # 5........................................................156          

 2.  Prospective Juror # 26.......................................................156          

 3.  Prospective Juror # 27.......................................................157      

D.  Sabir's Evidentiary Challenges Are Uniformly Without Merit...................158          

 1.  Expert Witness Testimony.....................................................158              

  a.  Kohlmann's Testimony Satisfied the Enumerated Requirements of Rule 702 ......158              

  b.  Kohlmann's Testimony Was Helpful to the Jury.................................159              

  c.  Kohlmann's Testimony Was Relevant............................................159              

  d.  Kohlmann's Testimony Did Not Reach Beyond the Government's Rule 16 Proffer...160          

 2.  Co-Conspirator Statements....................................................160              

  a.  Shah's Recorded Conversations with the Informant and the Undercover Were Admissible Under Fed.R.Evid. 801(d)(2)(E)..............160               
  b. The Admission of Shah's Statements Did Not Violate Sabir's Right to Confrontation................................................162          
3.  Prior Inconsistent Statement.................................................163          
4.  State-of-Mind Evidence.......................................................164         
5.  Rule 403 Objections..........................................................164              
  a.  The Shareef Materials....................................................165              
  b.  The Poughkeepsie Mosque Incident.........................................165             
  c.  Mujahideen Activities in Bosnia..........................................165      
E.  Summation Issues.................................................................166      
F.  Juror Misconduct.................................................................168

III.  Conclusion.........................................................................170

[132] Defendant Rafiq Sabir, whose birth name is Rene Wright, is a United States citizen and licensed physician who, in May 2005, swore an oath of allegiance to al Qaeda and promised to be on call to treat wounded members of that terrorist organization in Saudi Arabia. Convicted after a jury trial in the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge) of conspiring to provide and actually providing or attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B, and sentenced to a 300-month term of incarceration, Sabir now challenges his conviction on various grounds. Specifically, he contends that (1) § 2339B is unconstitutionally vague and overbroad, (2) the trial evidence was insufficient to support his conviction, (3) the prosecution's peremptory jury challenges exhibited racial bias, (4) evidentiary rulings deprived him of the right of confrontation and/or a fair trial, (5) the district court abused its discretion in addressing alleged juror misconduct, and (6) the prosecution's rebuttal summation deprived him of a fair trial. For the reasons explained in this opinion, we conclude that these arguments lack merit. Accordingly, we affirm Sabir's judgment of conviction.^[2]

I. Background

A. 2001: The Initial FBI Investigation into Co-Defendant Tarik Shah

Defendant Rafiq Sabir is a New York licensed physician, trained at Columbia University, who specializes in emergency medicine. In 2001, the Federal Bureau of Investigation began investigating Sabir's longtime friend Tarik Shah for the possible transfer of money to insurgents in Afghanistan. As part of that investigation, an FBI confidential informant known as "Saeed" cultivated a relationship with Shah, in the course of which Shah was recorded speaking openly about his commitment to jihad (holy war) in order to establish Sharia (Islamic law) and about his wish to provide "deadly and dangerous" martial arts training to mujahideen (jihad warriors). Gov't Exh. ("GX") 802T at 1-2; GX 803T at 2-4; GX 804T at 3; Trial Tr. at 590-91, 601-03.^[3] During these conversations, Shah repeatedly identified Sabir as his "partner." GX 801T at 1; GX 807T at 3; see Trial Tr. at 903-04.

B. 2004: Shah Offers to Support al Qaeda

On March 3, 2004, Saeed and Shah traveled to Plattsburgh, New York, where Saeed introduced Shah to Ali Soufan, an undercover FBI agent posing as a recruiter for al Qaeda.^[4] In a series of recorded [133] meetings with Agent Soufan, Shah detailed his martial arts expertise and offered to travel abroad to train al Qaeda combatants. Shah also told Soufan about Sabir, "an emergency room doctor" who had been his "trusted friend[]" for more than 25 years. GX 902T at 2, 7. Explaining that he knew Sabir's "heart," Shah proposed that the two men join al Qaeda as "a pair, me and a doctor." Id. at 3, 23. At a subsequent meeting with Saeed, Shah reported that he had spoken in person with Sabir about this plan.

Shah and Agent Soufan next met in Orlando, Florida, in April 2004, at which time Shah agreed to prepare a syllabus for a martial arts training course as well as a training video. Shah also questioned Soufan at this meeting about al Qaeda suicide bombings and asked whether he could receive, as well as provide, terrorist training.

C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support

For most of the time between May 2004 and May 2005, Sabir was out of the United States, working at a Saudi military hospital in Riyadh. On May 20, 2005, during a visit to New York, Sabir met with Saeed and Agent Soufan at Shah's Bronx apartment. Sabir told Soufan that he would soon be returning to Riyadh. He expressed interest in meeting with mujahideen operating in Saudi Arabia and agreed to provide medical assistance to any who were wounded. See GX 906T at 15, 87. He suggested that he was ideally situated to provide such assistance because he would have a car in Riyadh and "carte blanche" to move freely about the city. Id. at 67.

To ensure that Shah and Sabir were, in fact, knowingly proffering support for terrorism, Soufan stated that the purpose of "our war, ... our jihad" is to "[e]xpel the infidels from the Arabian peninsula," id. at 22, and he repeatedly identified "Sheikh Osama" (in context a clear reference to Osama bin Laden) as the leader of that effort, see, e.g., id. at 31, 34, 59, 87, 98-99. Shah quickly agreed to the need for war to "[e]xpel the Jews and the Christians from the Arabian Peninsula," id. at 22, while Sabir observed that those fighting such a war were "striving in the way of Allah" and "most deserving" of his help, id. at 66.

To permit mujahideen needing medical assistance to contact him in Riyadh, Sabir provided Soufan with his personal and work telephone numbers. See id. at 40, 83. When Shah and Soufan noted that writing down this contact information might create a security risk, Sabir encoded the numbers using a code provided by Soufan. See id. at 49-53.

Sabir and Shah then participated in bayat, a ritual in which each swore an oath of allegiance to al Qaeda, promising to serve as a "soldier of Islam" and to protect "brothers on the path of Jihad" and "the path of al Qaeda." Id. at 106-08, 114-16. The men further swore obedience to "the guardians of the pledge," whom Soufan expressly identified as "Sheikh Osama," i.e., Osama bin Laden, and his second in command, "Doctor Ayman Zawahiri." Id. at 98, 108-10, 115.

D. Prosecution and Conviction

Shah and Sabir were arrested on May 28, 2005, and thereafter indicted in the [134] Southern District of New York on charges that between October 2003 and May 2005, they (1) conspired to provide material support or resources to the terrorist organization al Qaeda, see 18 U.S.C. § 2339B; and (2) provided or attempted to provide such support, see id. §§ 2339B, 2. See Indictment ¶¶ 1-2, United States v. Shah, S4 05 Cr. 673(LAP) (S.D.N.Y. filed June 27, 2005).^[5] The two counts used identical language to describe three types of material support that defendants provided, attempted to provide, or conspired to provide:

(i) one or more individuals (including themselves) to work under al Qaeda's direction and control and to organize, manage, supervise, and otherwise direct the operation of al Qaeda, (ii) instruction and teaching designed to impart a special skill to further the illegal objectives of al Qaeda, and (iii) advice and assistance derived from scientific, technical and other specialized knowledge to further the illegal objectives of al Qaeda.

Id. ¶¶ 1-2. The two counts further alleged that Shah would provide "martial arts training and instruction for jihadists," while Sabir would provide "medical support to wounded jihadists," both defendants "knowing that al Qaeda had engaged and engages in terrorist activity" and "terrorism." Id.

After Shah pleaded guilty on April 4, 2007, to Count One of the indictment, trial against Sabir commenced on April 24. On May 21, 2007, the jury found Sabir guilty on both the conspiratorial and substantive charges against him, and, on November 28, 2007, the district court sentenced him principally to 300 months' incarceration. This appeal followed.

II. Discussion

A. 18 U.S.C. § 2339B Is Not Unconstitutionally Vague as Applied to Sabir's Case

In raising a constitutional challenge to his conviction, Sabir relies on the same argument he urged in the district court in unsuccessfully seeking dismissal of his indictment: that 18 U.S.C. § 2339B is void for vagueness and overbroad in defining the conduct proscribed. See United States v. Shah, 474 F.Supp.2d 492, 496-500 (S.D.N.Y.2007). Upon de novo review, see Arriaga v. Mukasey, 521 F.3d 219, 222 (2d Cir.2008), we conclude that the argument is without merit as § 2339B presents no overbreadth concerns and is not unconstitutionally vague as applied to Sabir's conduct.

1. The Statutory Framework

Preliminary to explaining our reasons for rejecting Sabir's vagueness challenge, we review the relevant statutory framework. Title 18 U.S.C. § 2339B(a)(1) imposes criminal liability on anyone who "knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so."^[6] [135] The statute expressly conditions liability on a person having knowledge that the relevant organization is a "designated terrorist organization" or "has engaged or engages in terrorist activity" or "terrorism" consistent with various specified provisions of law. 18 U.S.C. § 2339B(a)(1); see Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2709, 177 L.Ed.2d 355 (2010) (holding that "knowledge about the organization's connection to terrorism, not specific intent to further the organization's terrorist activities," is mental state required to prove violation of § 2339B).^[7]

In identifying the "material support or resources" whose provision to a designated terrorist organization is proscribed, § 2339B references the definition of that term "in section 2339A (including the definitions of `training' and `expert advice or assistance' in that section)." Id. § 2339B(g)(4). Section 2339A states, in pertinent part:

(1) the term "material support or resources" means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;

(2) the term "training" means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and

(3) the term "expert advice or assistance" means advice or assistance derived from scientific, technical or other specialized knowledge.

[136] Id. § 2339A(b).^[8]

With respect to the provision of "personnel," § 2339B limits liability to persons who have "knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization." Id. § 2339B(h). The statute states that "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control." Id.; see Holder v. Humanitarian Law Project, 130 S.Ct. at 2728 (emphasizing that statute "avoid[s] any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups").

2. Sabir's Vagueness Claim

For a conviction to comport with the constitutional mandate of due process, see U.S. Const. amend. V, the penal statute at issue must define the criminal offense (1) "with sufficient definiteness that ordinary people can understand what conduct is prohibited" and (2) "in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); accord Holder v. Humanitarian Law Project, 130 S.Ct. at 2718; United States v. Rybicki, 354 F.3d 124, 129 (2d Cir.2003) (en banc). Sabir argues that his conviction violates both prongs of this void-for-vagueness doctrine because § 2339B's prohibitions against providing "personnel," "training," and "expert advice and assistance" to terrorist organizations are overbroad and afford insufficient notice to persons who may traduce those prohibitions and inadequate standards for authorities who must enforce them. He contends further that the statutory exception for "medicine" is too vague to have put him on notice that it did not encompass his consultative services as a physician.

a. Sabir Fails to Demonstrate Facial Vagueness or Overbreadth

Sabir contends that § 2339B is unconstitutionally vague both on its face and as applied to his case. In support of his facial challenge, Sabir relies primarily on the overbreadth doctrine. This confuses the issue. As the Supreme Court recently observed, vagueness and overbreadth are distinct concerns, the first implicating the Due Process Clause and the latter the First Amendment. See Holder v. Humanitarian Law Project, 130 S.Ct. at 2719. A statute whose application is clear is not rendered unconstitutionally vague because it proscribes expression protected by the First Amendment. Id. In any event, Sabir fails to state an overbreadth claim.

A law is unconstitutionally overbroad if it "punishes a substantial amount of protected free speech, judged in relation to [its] plainly legitimate sweep." Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (internal quotation marks omitted). A finding of overbreadth invalidates all enforcement of a challenged law, unless it can be saved by a limiting construction. Id. at 119, 123 S.Ct. 2191. Mindful that such relief is "strong medicine," the law rigorously enforces the burden on the challenging party to demonstrate "substantial" infringement [137] of speech. United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (emphasis in original). Sabir's recitation of the applicable legal standards and his conclusory declaration that § 2339B is overbroad do not come close to carrying this burden.

As the Supreme Court stated in rejecting a First Amendment challenge to § 2339B, the statute leaves persons free to "say anything they wish on any topic," including terrorism. Holder v. Humanitarian Law Project, 130 S.Ct. at 2722-23. It does not prohibit independent advocacy of any kind. See id. at 2723, 2728. It does not prohibit or punish mere membership in or association with terrorist organizations. See id. at 2723, 2730. Thus, it does not seek

to suppress ideas or opinions in the form of `pure political speech.' Rather, [it] prohibit[s] `material support,' which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.

Id. at 2723. Such circumstances do not evidence overbreadth.

To the extent Sabir asserts that § 2339B is overbroad in limiting "a doctor's right to practice medicine," Appellant's Br. at 14-15, he cites no authority locating such a right within the Constitution, much less in the First Amendment. The Supreme Court has long held that "there is no right to practice medicine which is not subordinate to the police power of the states ... and also to the power of Congress to make laws necessary and proper" to the exercise of its constitutional authority. Lambert v. Yellowley, 272 U.S. 581, 596, 47 S.Ct. 210, 71 L.Ed. 422 (1926) (Brandeis, J.) (rejecting physician's claim that, despite powers conferred on Congress by Eighteenth Amendment, he held constitutional right to prescribe such medicines as he deemed best to effect patient's cure); see also Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (observing that there is no due process right to practice one's profession free of any restraints and that due process is violated only by "complete prohibition of the right to engage in a calling"); Dent v. West Virginia, 129 U.S. 114, 122, 9 S.Ct. 231, 32 L.Ed. 623 (1889) ("[T]here is no arbitrary deprivation of [the right to practice medicine] where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society."). With particular reference to the First Amendment, a plurality of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), rejected a First Amendment challenge to a state law requiring physicians to provide patients with specific information about certain medical risks, observing that "[t]o be sure, the physicians' First Amendment rights not to speak are implicated, ... but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State," id. at 884, 112 S.Ct. 2791 (plurality opinion). Because Sabir thus cannot claim a "right" to provide medical treatment for terrorists that is not "subordinate to ... the power of Congress to make laws necessary and proper" to the nation's defense, Lambert v. Yellowley, 272 U.S. at 596, 47 S.Ct. 210; see U.S. Const. art. I, § 8, he cannot mount a claim that § 2339B is unconstitutionally overbroad.

Nor can Sabir demonstrate overbreadth by faulting § 2339B for not requiring proof of his "specific intent to further ... terrorist activities." Appellant's Br. at 24; see Holder v. Humanitarian Law Project, 130 S.Ct. at 2718 (construing § 2339B not to require proof of such intent). The argument [138] is grounded not in the First Amendment but in the Fifth, specifically, in the due process requirement that any conviction be supported by evidence of personal guilt. See Scales v. United States, 367 U.S. 203, 224-25, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). Such a due process concern can arise when criminal liability is premised on mere membership in an organization. See id. at 205-06, 224-28, 81 S.Ct. 1469 (rejecting Fifth Amendment challenge to Smith Act, 18 U.S.C. § 2385 (prohibiting membership in organization advocating overthrow of United States government by force or violence), because conviction required proof of knowing and active membership in organization and intent to contribute to success of specifically illegal activities).

No such concern arises with respect to § 2339B, however, because, as we have already observed, that statute does not prohibit simple membership in a terrorist organization. Rather, the statute prohibits the knowing provision of material support to a known terrorist organization. Proof of such provision (whether actual, attempted, or conspiratorial) together with the dual knowledge elements of the statute is sufficient to satisfy the personal guilt requirement of due process.

In sum, Sabir fails to state a claim — much less demonstrate — that § 2339B is either facially vague in violation of due process or overbroad in violation of the First Amendment.

b. Sabir Fails To Demonstrate that § 2339B Is Unconstitutionally Vague as Applied to his Case

(1) Sabir's Vagueness Claim Is Properly Reviewed as Applied 

In the absence of First Amendment concerns, courts generally view vagueness challenges to a statute as applied to the defendant's case. See Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) ("First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied."); accord United States v. Williams, 553 U.S. at 304, 128 S.Ct. 1830; United States v. Rybicki, 354 F.3d at 129-30 (collecting cases).^[9] This preference for as-applied review is "`[e]mbedded in the traditional rules governing constitutional adjudication,'" notably, in "`the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.'" Parker v. Levy, 417 U.S. 733, 759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). That principle, grounded in the separation of powers, serves the jurisprudential maxim that "as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid," a court's "plain duty is to adopt that which will save the Act" enacted by Congress. Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (Holmes, J.); see Rust v. Sullivan, 500 U.S. 173, 190, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (noting courts' "categorical" duty to seek "every reasonable construction ... to save a statute from unconstitutionality" (emphasis in original; internal quotation marks omitted)).

To the extent the Supreme Court has suggested that a facial challenge may be maintained against a statute that does not reach conduct protected by the First [139] Amendment, the identified test is, in fact, only a variation on as-applied analysis, requiring the defendant to show "that the law is impermissibly vague in all of its applications." Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); accord United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (observing that defendant mounting facial challenge bears heavy burden because he "must establish that no set of circumstances exists under which the Act would be valid"). In practice, the Hoffman Estates/Salerno rule warrants hypothetical analysis of "all applications" only in cases of pre-enforcement facial vagueness challenges. See, e.g., Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681, 684-86 (2d Cir.1996). Where, as here, a defendant has already been convicted for specific conduct under the challenged law, Hoffman Estates itself instructs a court confronting a facial challenge to "examine the complainant's conduct before analyzing other hypothetical applications." Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. at 495, 102 S.Ct. 1186.

Accordingly, our review of Sabir's vagueness challenge focuses on the application of § 2339B to the facts of his case.^[10]

(2) The Standards for As-Applied Review

On as-applied review of the "notice" requirement of due process, courts ask whether the challenged "statute, as written, provides notice sufficient to alert `ordinary people [as to] what conduct is prohibited.'" Arriaga v. Mukasey, 521 F.3d at 224 (quoting Kolender v. Lawson, 461 U.S. at 357, 103 S.Ct. 1855). This test does not demand "`meticulous specificity'" in the identification of proscribed conduct. Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (noting that such standard would come at cost of "flexibility and reasonable breadth" (internal quotation marks omitted))). Rather, it requires only that the statutory language "`conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'" Id. (quoting Jordan v. DeGeorge, 341 U.S. 223, 231-32, 71 S.Ct. 703, 95 L.Ed. 886 (1951)).

Similarly, with respect to the due process concern of arbitrary enforcement, a statute certainly will not be deemed unconstitutionally vague if "`as a general matter,'" it "`provides sufficiently clear standards to eliminate'" such a risk. Id. (quoting Farrell v. Burke, 449 F.3d 470, 494 (2d Cir.2006)). But even "`in the absence of such standards,'" a statute will survive an as-applied vagueness challenge if "`the conduct at issue falls within the core of the statute's prohibition, so that the enforcement before the court was not the result of the unfettered latitude that law enforcement officers and factfinders [140] might have in other, hypothetical applications of the statute.'" Id. (quoting Farrell v. Burke, 449 F.3d at 494).

Applying these principles to this case, we identify no unconstitutional vagueness in § 2339B as applied to Sabir's case.

(3) Sabir's Vagueness Challenge to the Statutory Proscriptions Fails

Sabir contends that the statutory terms at issue — "training," "personnel," and "expert assistance and advice" — are inherently too vague to provide the notice and direction required by due process. Such a general complaint is now foreclosed by Holder v. Humanitarian Law Project. The Supreme Court there observed that these terms did not require the sort of "untethered, subjective judgments" that had compelled it to strike down statutes tying criminal culpability to vague concepts such as "annoying" or "indecent" conduct. 130 S.Ct. at 2720. The Court identified further protection against vagueness in Congress's addition of "narrowing definitions" for these terms, which "increased the[ir] clarity," as well as in the knowledge element required for a § 2339B conviction. Id.

Sabir's more specific challenges to the application of these terms to the particular facts of his case are equally meritless.

To the extent Sabir was convicted of conspiring with Shah to provide "training" — i.e., "instruction or teaching designed to impart a specific skill, as opposed to general knowledge," 18 U.S.C. § 2339A(b)(2) — to a known terrorist organization, a person of "ordinary intelligence," Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. 2294, would require nothing more than "common understanding," Jordan v. De George, 341 U.S. at 232, 71 S.Ct. 703, to recognize that this prohibition plainly encompassed "martial arts training and instruction for jihadists" serving al Qaeda, Indictment ¶¶ 1-2. In Holder v. Humanitarian Law Project, the Supreme Court held that "[a] person of ordinary intelligence would understand that instruction on resolving disputes through international law falls within the statute's definition of `training' because it imparts a `specific skill,' not `general knowledge.'" 130 S.Ct. at 2720. That conclusion is even more apparent here, where the trial evidence showed that the martial arts training Shah proposed to provide was specific and deadly and hardly a matter of general knowledge. See, e.g., GX 814T at 3-4 (recording Shah's explanation of how to kill a man by ripping out his throat). Moreover, al Qaeda's history for using murderous terrorism in an attempt to intimidate civilian populations and governments, see 18 U.S.C. § 2331 (defining terrorism) — particularly American civilians and the United States government — is so well known that no reasonable person could doubt that training al Qaeda members in martial arts is precisely the sort of material support proscribed by § 2339B, see Arriaga v. Mukasey, 521 F.3d at 224; United States v. Rybicki, 354 F.3d at 129.

We likewise reject Sabir's vagueness challenge to the term "personnel" as applied to his case. The provision of personnel is prohibited by § 2339B only when an individual knowingly provides, attempts to provide, or conspires to provide a foreign terrorist organization with one or more individuals, including himself, "to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct [its] operation." 18 U.S.C. § 2339B(h). Quite apart from Shah's offer to act as a martial arts trainer for al Qaeda in that organization's pursuit of jihad, Sabir's offer to serve as an on-call doctor for the organization, standing ready to treat wounded mujahideen in Saudi Arabia, falls squarely within the core of [141] this prohibition, defeating any suggestion either that he lacked notice that his conduct was unlawful or that the statute was enforced arbitrarily with respect to him. See Farrell v. Burke, 449 F.3d at 494; United States v. Rybicki, 354 F.3d at 129.

In an effort to avoid this conclusion, Sabir argues that his offer of life-saving medical treatment was simply consistent with his ethical obligations as a physician and not reflective of any provision of support for a terrorist organization. The record does not support this characterization. Sabir was not prosecuted for performing routine duties as a hospital emergency room physician, treating admitted persons who coincidentally happened to be al Qaeda members. Sabir was prosecuted for offering to work for al Qaeda as its on-call doctor, available to treat wounded mujahideen who could not be brought to a hospital precisely because they would likely have been arrested for terrorist activities. See GX 906T at 49, 69. In offering this support for al Qaeda, Sabir did not simply honor his Hippocratic oath. He swore a further oath of allegiance to al Qaeda, making clear that his treatment of wounded mujahideen would be provided not as an independent physician but as "one of the soldiers of Islam," duty bound to obey al Qaeda's leaders, including Osama bin Laden, and to protect his fellow "brothers on the path of Jihad" and "on the path of al Qaeda." Id. at 114-16. No reasonable person with a common understanding of al Qaeda's murderous objectives could doubt that such material support fell squarely within the prohibitions of § 2339B. See Holder v. Humanitarian Law Project, 130 S.Ct. at 2721 (holding that statute limiting "personnel" to persons working under terrorist organization's direction or control, rather than independently, adequately avoided vagueness).

Nor is the statute's prohibition on the provision of "expert assistance and advice" to terrorist organizations unconstitutionally vague as applied to Sabir. As the district court correctly observed, the medical expertise of a licensed physician plainly constitutes "scientific, technical or other specialized knowledge" under 18 U.S.C. § 2339A.^[11]See United States v. Shah, 474 F.Supp.2d at 497 n. 5. Indeed, such expertise requires more specialized knowledge than the instruction in relief application that the Supreme Court held "comfortably" to fall within the scope of "expert advice or assistance" in Holder v. Humanitarian Law Project, 130 S.Ct. at 2720. Any person of ordinary intelligence would readily recognize that such expert assistance (well outside the scope of one's regular hospital duties), with the stated object of permitting al Qaeda fighters to advance "on the path of Jihad" is exactly the sort of material support proscribed by § 2339B. See Arriaga v. Mukasey, 521 F.3d at 224; United States v. Rybicki, 354 F.3d at 129; cf. Watson v. Geren, 569 F.3d 115, 119, 134 (2d Cir.2009) (upholding conscientious objector claim of doctor who refused to serve in United States Army based on belief that treating wounded soldiers would be functional equivalent of weaponizing human beings).

Further, because Sabir's proffered support, whether viewed as training, personnel, or expert assistance, fell so squarely within the core of § 2339B's prohibition, the application of that law to his conduct cannot have been the product of arbitrary law enforcement. See Farrell v. Burke, 449 F.3d at 494.

[142] (4) The "Medicine" Exception Does Not Render § 2339B Unconstitutionally Vague as Applied to Sabir

Sabir submits that, even if the training, personnel, and expert assistance provisions of the material support statute are not unconstitutionally vague as applied to his case, they are rendered so by vagueness in the statutory exemption of "medicine" from the definition of "material support." 18 U.S.C. § 2339A(b)(1); see Oral Arg. Tr. at 33 (Jan. 17, 2007) ("How is a person of ordinary intelligence supposed to determine we are talking about medicine, only medicine, but not the provision of medical treatment by a doctor?").

The task of interpreting a statute necessarily begins with its language. See Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); United States v. Awadallah, 349 F.3d 42, 51 (2d Cir.2003). Considered in isolation, the word "medicine" can convey various meanings, including both "a substance or preparation used in treating disease"^[12] and "the science and art of dealing with the maintenance of health and the prevention, alleviation, or cure of disease." Webster's 3d New Int'l Dictionary 1402 (2002); see also 9 Oxford English Dictionary 549 (2d ed. 1989) (defining "medicine" as both "[a]ny substance or preparation used in the treatment of disease" and "[t]hat department of knowledge and practice which is concerned with the cure, alleviation, and prevention of disease in human beings, and with the restoration and preservation of health"). But we do not look at statutory language in isolation to determine if it provides adequate notice of conduct proscribed or permitted. Rather, we consider language in context, see Bailey v. United States, 516 U.S. at 145, 116 S.Ct. 501; see also Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), and, where appropriate, with the benefit of canons of statutory construction, see United States v. Dauray, 215 F.3d 257, 262 (2d Cir.2000), and legislative history, see Barenblatt v. United States, 360 U.S. 109, 117, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959) (relying on "legislative gloss" to reject vagueness challenge to expansive construction of rule underlying conviction for contempt of Congress); United States v. Witkovich, 353 U.S. 194, 199, 77 S.Ct. 779, 1 L.Ed.2d 765 (1957) (observing that restrictive meaning of language may be indicated by, inter alia, "persuasive gloss of legislative history"); United States v. Harriss, 347 U.S. 612, 620, 74 S.Ct. 808, 98 L.Ed. 989 (1954) (relying in part on legislative history to construe statute to avoid vagueness challenge); United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993) (rejecting vagueness challenge where "common sense interpretation of [statutory language at issue] is confirmed by the statute's legislative history").

The relevant context here starts with § 2339A(b)(1), which in cataloguing an expansive array of tangibles and intangibles that can constitute "material support or resources" notes two exceptions: "medicine or religious materials." Relevant context also extends to § 2339B(a)(1), the provision making it a crime to "provide" material support. In the context of a statute focused on things that might be provided to support a terrorist organization, "medicine" is reasonably understood as a substance or preparation rather than as an art or science. "Providing medicine" is how common usage refers to the prescription of a substance or preparation to treat a patient. See, e.g., Grieveson v. [143] Anderson, 538 F.3d 763, 774 (7th Cir.2008) (addressing challenge to practice that allegedly "provide[d] inmates with quantities of medicine" that could allow them to overdose); El Badrawi v. Dep't of Homeland Sec., 258 F.R.D. 198, 202 (D.Conn. 2009) (addressing challenge to alleged failure to "provide" inmate with medicine); Celia W. Dugger, Nigeria: Help for Fighting Malaria, N.Y. Times, Oct. 24, 2009, at A8 (discussing organization's announcement to "provide enough medicine for 56 million malaria treatments"); Gardiner Harris, Institute of Medicine Calls for Doctors to Stop Taking Gifts from Drug Makers, N.Y. Times, Apr. 29, 2009, at A17 (discussing recommendation that doctors stop giving free drug samples to patients "unless the patient was poor and the doctor could continue to provide the medicine for little or no cost"). By contrast, "practicing medicine" is how common usage describes Sabir's proposed activity, i.e., employing the art or science of medicine to treat a patient. See, e.g., Smith v. Doe, 538 U.S. 84, 112, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (Stevens, J., dissenting and concurring in the judgment) (noting that incompetent doctor "may not be permitted to practice medicine"); Planned Parenthood of Se. Penn. v. Casey, 505 U.S. at 884 (plurality opinion) (noting "practice of medicine" was "subject to reasonable licensing and regulation"); Harris v. Mills, 572 F.3d 66, 68-69 (2d Cir.2009) (affirming dismissal of lawsuit arising from "revocation of [plaintiff's] license to practice medicine"). Where the word "provide" is used to describe the latter activity, reference ordinarily is made to "medical care," or "medical treatment," rather than to "medicine" alone. See, e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 434, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) (noting requirement of Medicaid statute that state "provide various medical services to eligible children"); Washington v. Harper, 494 U.S. 210, 225-26, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (describing state's interest with respect to mentally ill prison inmate "in providing him with medical treatment for his illness").

Moreover, Congress's intent to have the medicine exception in § 2339A(b)(1) reach no further than substances or preparations that might be provided to a terrorist organization is stated with particular clarity in the statute's legislative history. The House Conference Report accompanying the original legislation states that the word "`[m]edicine' should be understood to be limited to the medicine itself, and does not include the vast array of medical supplies." H.R. Conf. Rep. 104-518, at 114 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 947. In drawing this distinction between "the medicine itself" and "medical supplies," Congress served clear notice that the medicine exception does not reach "the outer limits of its definitional possibilities," Dolan v. U.S. Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006), but is confined to medical substances and preparations.

In short, context, common usage, and legislative history combine to serve on both individuals and law enforcement officers the notice required by due process that the medicine exception identified in § 2339A(b)(1) shields only those who provide substances qualifying as medicine to terrorist organizations. Other medical support, such as volunteering to serve as an on-call doctor for a terrorist organization, constitutes a provision of personnel and/or scientific assistance proscribed by law. See 18 U.S.C. §§ 2339A(b)(1), (3), 2339B(a)(1).

Accordingly, we identify no merit in Sabir's claim that § 2339B is unconstitutionally vague as applied to his case, and we decline to reverse his conviction as violative [144] of the notice requirement of due process.

B. The Trial Evidence Was Sufficient To Support Sabir's Conviction

Sabir contends that the evidence was insufficient to support his conviction. The rule of constitutional sufficiency, derived from the Due Process Clause, instructs that a conviction cannot be obtained "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime ... charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); accord United States v. Aguilar, 585 F.3d 652, 656 (2d Cir.2009). A defendant raising a sufficiency challenge bears a heavy burden because a reviewing court must consider the totality of the evidence in the light most favorable to the prosecution and uphold the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); accord United States v. Aguilar, 585 F.3d at 656. Applying these principles to Sabir's case, we reject his sufficiency challenge as without merit.

1. Count One: Conspiracy

In challenging his conviction for conspiracy to provide material support to a known terrorist organization, Sabir contends principally that the government failed to prove the existence of an agreement to violate § 2339B. We are not persuaded. To convict a defendant of conspiracy, the government must prove beyond a reasonable doubt "both the existence of the conspiracy alleged and the defendant's membership in it." United States v. Chavez, 549 F.3d 119, 125 (2d Cir.2008); see also id. ("The essence of any conspiracy is, of course, agreement, and in order to establish a conspiracy, the government must show that two or more persons entered into a joint enterprise with consciousness of its general nature and extent."). The trial evidence in this case easily satisfied these elements.

Testimonial evidence established that Shah and Sabir had long voiced interest in supporting jihad and mujahideen. See, e.g., Trial Tr. at 193-96 (reporting Shah preaching jihad and support for Osama bin Laden in late 1990s at Poughkeepsie mosque); id. at 287 (recounting Sabir's 2003 conversation with mujahideen fighter inquiring how Sabir could help with jihad). It is against this background that a jury would listen to the recorded conversation of March 4, 2004, in which Shah proposed to a federal undercover agent that Shah and Sabir — close friends for 25 years — join al Qaeda as "a pair, me and a doctor," to support that organization's pursuit of jihad. GX 902T at 23. More significantly, during the May 20, 2005 meeting at which Shah and Sabir formally swore allegiance and promised support to al Qaeda, Shah by providing al Qaeda members with martial arts training and Sabir by treating wounded al Qaeda members in Riyadh, see GX 906T at 106-16, Sabir acknowledged that he and Shah had talked "for a long time" about supporting jihad, id. at 110. Sabir plainly viewed his and Shah's actions at the May 20 meeting as part of their common agreement. When Agent Soufan observed that neither man was obligated to support al Qaeda, Sabir responded that to fail to do so would be to "abandon[] my brother (Shah)" with respect to "the very thing we agreed upon... in the first place." Id.

Accordingly, we identify no merit in Sabir's sufficiency challenge to his conviction for conspiracy to provide material support to a known terrorist organization.

[145] 2. Count Two: Attempt

Equally meritless is Sabir's argument that the evidence was insufficient to support his conviction for attempting to provide material support to a known foreign terrorist organization. A conviction for attempt requires proof that a defendant (a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission. See, e.g., United States v. Yousef, 327 F.3d 56, 134 (2d Cir.2003).

a. Intent

Sabir does not challenge the sufficiency of the evidence establishing his intent to provide material support to a foreign terrorist organization. Nor could he.^[13] In addition to Sabir's statements already quoted in this opinion, see supra at [132, 140, 143-44], which constitute powerful evidence of the requisite intent, the following transcript excerpts from the May 20, 1995 meeting further support this element.

After Sabir advised that his work in a Riyadh military hospital would put him in Saudi Arabia for two years, Agent Soufan stated that Sabir could help al Qaeda "[a]s a doctor ... as a Mujahid." GX 906T at 19. Sabir not only signaled assent, he emphasized a need to "feel sure within myself that if I make a certain move, that move is going to be effective." Id. To provide that assurance, Agent Soufan clarified how a doctor could be helpful to al Qaeda's pursuit of jihad. He stated that Osama bin Laden himself had told Soufan that "we need doctors if they are trusted." Id. at 32. Soufan explained that "brothers" sometimes get "hurt with a bullet" during "training" and in "operation[s]." Id. at 48-49. Because they cannot "go to a hospital," the organization needs "doctor brothers ... to protect them ... [to] keep the other brothers healthy." Id. at 49.^[14] Sabir readily agreed to provide that support, stating, "Let me give you another number," whereupon he supplied his personal mobile telephone number, which, with Soufan's assistance, he rendered into code. Id. at 48-50.^[15] Sabir understood [146] that the purpose of the code was to conceal the fact that he was working for al Qaeda: Persons who learn the number "may not... understand [its] significance.... They may not even recognize it as a telephone number." Id. at 51. He also understood that the coded number would be provided to a trusted al Qaeda operative, who would identify himself as "Mus'ab" when contacting Sabir on behalf of a wounded jihadist. Sabir responded to this information, "God willing." Id. at 87 (italics in transcript reflect translation from Arabic to English).

Still later in the conversation, when Agent Soufan emphasized to Sabir that he could decline to treat mujahideen if he was not committed to al Qaeda's goals, Sabir made plain that he had no reservations about using his medical expertise to support al Qaeda: "I will [do what]ever I can do for the sake of God.... This is my job ... the best I can do is to benefit those people ... who are striving in the way of Allah.... [T]hese are the ones that are most deserving of the help." Id. at 66. When Soufan further stated that it was difficult to take mujahideen to a hospital for treatment, Sabir emphasized that his military identification allowed him to travel freely around Saudi Arabia, thereby suggesting that he could go to the injured person. "[I]t's almost like carte blanche.... It's like you can go where you want to go with this.... And anybody that sees it, they don't touch you." Id. at 67. Later, Soufan sought to confirm this understanding, stating "[t]hat ID will be very good for you ... because you can definitely help mujahideen now," to which Sabir responded, "Yes, yes." Id. at 69.

With evidence of his intent thus clearly established, Sabir focuses his sufficiency challenge on the "substantial step" element of attempt.

b. Substantial Step

(1) The "Substantial Step" Requirement Expands Attempt Beyond the Common Law

The "substantial step" requirement for attempt derives from the American Law Institute's Model Penal Code, which in the early 1960s sought to "widen the ambit of attempt liability." United States v. Ivic, 700 F.2d 51, 66 (2d Cir.1983) (Friendly, J.) (citing Model Penal Code § 5.01(1)(c) (Proposed Official Draft 1962)), overruled on other grounds by National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 254-55, 262, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). Previously, at common law, attempt had been limited to conduct close to the completion of the intended crime. See generally People v. Werblow, 241 N.Y. 55, 69, 148 N.E. 786, 789 (1925) (Cardozo, J.) (holding that, to constitute attempt, suspect's conduct must "carry the project forward within dangerous proximity to the criminal end to be attained"); Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56 (1901) (Holmes, J.) (recognizing that "some preparations may amount to an attempt" when they come "very near to the accomplishment of the act"). By requiring proof only of a "substantial step" in furtherance of the intended crime, the Model Code ushered in a broader view of attempt.

This court effectively adopted the Model Code's formulation of attempt in United States v. Stallworth, 543 F.2d 1038, 1040-41 (2d Cir.1976). The Stallworth defendants were arrested when their planned armed robbery was "in progress" and "[a]ll that stood between [them] and success was a group of F.B.I. agents and police officers." Id. at 1041. As such evidence would have demonstrated attempt even under the common law, the significance of the case rests not on its facts but on the court's approving citation to the Model [147] Code's identification of a range of conduct — not always proximate to the desired criminal end — that might nevertheless constitute a substantial step when "strongly corroborative of the firmness of the defendant's criminal intent." Id. at 1040 & n. 5; see also id. at 1041 (observing that application of Model Code "emphasizes the importance of a rule [of attempt] encouraging early police intervention where a suspect is clearly bent on the commission of crime"). Accord United States v. Crowley, 318 F.3d 401, 408 (2d Cir.2003); United States v. Ivic, 700 F.2d at 66. Thus, a "substantial step" must be "something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime." United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980). It is conduct "`planned to culminate'" in the commission of the substantive crime being attempted. United States v. Ivic, 700 F.2d at 66 (quoting Model Penal Code § 5.01(c) (Proposed Official Draft 1962)).^[16]

(2) Identifying a Substantial Step by Reference to the Crime Being Attempted

While the parameters of the substantial step requirement are simply stated, they do not always provide bright lines for application. This is not surprising; the identification of a substantial step, like the identification of attempt itself, is necessarily a matter "`of degree,'" United States v. Coplon, 185 F.2d 629, 633 (2d Cir.1950) (L. Hand, J.) (quoting Commonwealth v. Peaslee, 177 Mass. at 272, 59 N.E. at 56), that can vary depending on "`the particular facts of each case'" viewed in light of the crime charged, United States v. Ivic, 700 F.2d at 66 (quoting United States v. Manley, 632 F.2d at 988); accord United States v. Crowley, 318 F.3d at 408. An act that may constitute a substantial step towards the commission of one crime may not constitute such a step with respect to a different crime. See generally United States v. Ivic, 700 F.2d at 66 (observing that substantial step requirement serves to ensure that person is convicted for attempt only when actions manifest "firm disposition" to commit charged crime). Thus, substantial-step analysis necessarily begins with a proper understanding of the crime being attempted.

For example, in United States v. Delvecchio, 816 F.2d 859 (2d Cir.1987), a case frequently cited as illustrative of actions insufficient to demonstrate attempt, the substantive crime at issue was possession of a large quantity of heroin. We held that a substantial step to commit that crime was not established by proof that defendants had met with suppliers, agreed on terms, and provided their beeper numbers. Such evidence, at most, established a "verbal agreement," which, "without more, is insufficient as a matter of law to support an attempt[ed possession] conviction." Id. at 862. In so concluding, we noted that what was missing was any act to effect possession, such as acquisition, or attempted acquisition, of the purchase money, or travel to the agreed-on purchase site. See id.

The crime here at issue, however, is of a quite different sort. Sabir was charged with attempting to provide material support for terrorism. Whereas an attempt to possess focuses on a defendant's efforts [148] to acquire, an attempt to provide focuses on his efforts to supply, a distinction that necessarily informs an assessment of what conduct will manifest a substantial step towards the charged objective. Thus, while an agreement to purchase drugs from a supplier is not a substantial step sufficient to convict for attempted possession, see id. at 862, such an agreement to acquire might constitute a substantial step when the crime at issue is attempted distribution, see United States v. Rosa, 11 F.3d 315, 340 (2d Cir.1993) (holding evidence insufficient to prove attempted distribution where defendant "did not produce any heroin for the proposed sale ..., and there was no evidence that [he] ever entered into an agreement with a supplier or made inquiry of a supplier to obtain heroin for the proposed sale").

Further important to a substantial-step assessment is an understanding of the underlying conduct proscribed by the crime being attempted. The conduct here at issue, material support to a foreign terrorist organization, is different from drug trafficking and any number of activities (e.g., murder, robbery, fraud) that are criminally proscribed because they are inherently harmful. The material support statute criminalizes a range of conduct that may not be harmful in itself but that may assist, even indirectly, organizations committed to pursuing acts of devastating harm. Thus, as the Supreme Court recently observed, the very focus of the material support statute is "preventative" in that it "criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur." Holder v. Humanitarian Law Project, 130 S.Ct. at 2728. Accordingly, while a substantial step to commit a robbery must be conduct planned clearly to culminate in that particular harm, a substantial step towards the provision of material support need not be planned to culminate in actual terrorist harm, but only in support — even benign support — for an organization committed to such harm. See generally id. at 2724 (discussing Congress's finding that designated foreign terrorist organizations "`are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct'" (quoting AEDPA § 301(a)(7), 110 Stat. at 1247) (emphasis in Humanitarian Law Project).)

(3) The Evidence Manifests a Substantial Step Towards the Provision of Material Support in the Form of Personnel

The indictment charged Sabir with attempting to supply al Qaeda with material support in three of the forms proscribed in 18 U.S.C. § 2339A(b)(1): "personnel, training, and expert advice and assistance." Indictment ¶ 2.^[17] We conclude [149] that the evidence was sufficient to support Sabir's conviction for attempting to provide material support in the form of personnel — specifically, himself — to work for al Qaeda as a doctor on-call to treat wounded jihadists in Saudi Arabia. See United States v. McCourty, 562 F.3d 458, 471 (2d Cir.2009) (recognizing that when theories of liability are pleaded in conjunctive, defendant may be found guilty on proof of any one theory); United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir.1996) (holding evidence sufficient to affirm if reasonable jury could have convicted on any theory charged).^[18] By coming to meet with a purported al Qaeda member on May 20, 1995; by swearing an oath of allegiance to al Qaeda; by promising to be on call in Saudi Arabia to treat wounded al Qaeda members; and by providing private and work contact numbers for al Qaeda members to reach him in Saudi Arabia whenever they needed treatment, Sabir engaged in conduct planned to culminate in his supplying al Qaeda with personnel, thereby satisfying the substantial step requirement.^[19]

(4) The Dissent's Mistaken View of the Substantial Step Requirement

(a) Sabir Did More Than Express a Radical Idea When He Produced Himself as a Doctor Sworn To Work Under the Direction of al Qaeda 

In dissent, Chief Judge Dearie asserts that by upholding Sabir's attempt conviction on the record evidence, we approve punishing a defendant for radical thoughts rather than criminal deeds. See Dissenting Op., post at [181-82]. We do no such thing. Sabir's words and actions on May 20, 1995, did more than manifest radical sympathies. See United States v. Crowley, 318 F.3d at 408 (observing that substantial step requirement ensures that attempt does not punish persons "for their thoughts alone"). By attending the May 20, 2005 meeting and committing to work under al-Qaeda's direction and control as an on-call doctor, Sabir physically produced the very personnel to be provided as material support for the terrorist organization: himself. This supplying of the proscribed object is precisely the sort of substantial [150] step that was missing in United States v. Rosa, 11 F.3d at 340 (holding evidence insufficient to support conviction for attempt to distribute heroin in absence of proof that defendant ever "produce[d] any heroin" or reached agreement with heroin supplier to acquire heroin for planned distribution).

Viewed in this context, Sabir's oath of allegiance to al Qaeda evidenced more than "mere membership" in that terrorist organization. Holder v. Humanitarian Law Project, 130 S.Ct. at 2719 (holding that § 2339B does not criminalize "mere membership" in designated terrorist organization; it prohibits providing "material support" to that group). Sabir's purpose in swearing bayat was to formalize his promise to work as a doctor under the organization's direction and control.^[20] That is most certainly evidence of a crime: the charged crime of attempting to provide material support to terrorism in the form of personnel. See 18 U.S.C. § 2339B(h) (clarifying that what is proscribed is the provision of personnel "to work under" the "direction or control" of a terrorist organization). Further, by providing his contact numbers, Sabir took a step essential to provide al Qaeda with personnel in the form of an on-call doctor: he provided the means by which mujahideen in Riyadh could reach that doctor at any time, day or night, that they needed emergency treatment. From the totality of these facts, a reasonable jury could have concluded that on May 20, 2005, Sabir crossed the line from simply professing radical beliefs or joining a radical organization to attempting a crime, specifically, Sabir's provision of himself as personnel to work under the direction and control of al Qaeda.

(b) The Provision of Personnel and the Subsequent Provision of Expert Services by Such Personnel Are Distinct Forms of Material Support

Chief Judge Dearie submits that the time and distance to be traveled by Sabir before he actually provided any medical treatment to al Qaeda warriors was too great to permit a jury to find that his actions constituted a substantial step towards commission of the charged crime. See Dissenting Op., post at [178, 179-80]. This mistakenly equates the provision of personnel to a terrorist organization with the subsequent provision of services by that personnel, a misapprehension that pervades the dissent and informs its conclusion that Sabir stands guilty "for an offense that he did not commit." Id. at [183]. While it may frequently be the case that a defendant who intends to provide a terrorist organization with personnel also intends for the personnel to provide the organization with services, § 2339A(b)(1) specifically recognizes "personnel" and "services" — particularly services in the form of "expert advice and assistance," such as medical treatment — as distinct types of material support.^[21] Thus, even if the provision (or attempted provision) of these two forms of material support may be simultaneous in some cases, it may not be in others. For that reason, evidence [151] sufficient to demonstrate a substantial step towards the provision of personnel may not always be sufficient to demonstrate a substantial step towards the personnel's provision of services. Whether or not Sabir's May 20, 2005 actions were a substantial step in the provision of expert medical services to terrorists, we conclude that they were a substantial step in the provision of Sabir himself as personnel.

To illustrate, assume that, instead of offering himself as an on-call doctor to al Qaeda, Sabir had recruited a doctor who was, in all respects, identically situated to himself. Assume further that Sabir then brought that doctor to a meeting in New York where the doctor swore allegiance to al Qaeda, promised a supposed al Qaeda member that he would work as an on-call doctor for the organization, and gave the member contact numbers so that wounded jihadists in Saudi Arabia could reach the doctor when necessary. Even the dissent concedes that such evidence would be sufficient to prove Sabir "guilty of attempting to provide personnel," although the recruited doctor would not provide actual medical services until some time in the future and after he traveled from New York to Saudi Arabia. Dissenting Op., post at [179]. Because Sabir would be guilty of attempting to provide personnel in the circumstances hypothesized, we think it necessarily follows that he is equally guilty on the record facts. He is guilty of attempting to provide himself as personnel to al Qaeda on May 20, 2005, even if he is not yet guilty of attempting to provide medical services to that organization.

In concluding otherwise, Chief Judge Dearie submits that the recruiter in the hypothetical "has done something. He has provided a service to the organization." Id. By contrast, he submits that Sabir "has done nothing more than conspire." Id. at 179.^[22] We disagree. Section 2339(B) criminalizes providing personnel through self-recruitment (i.e., volunteering oneself to serve under the direction of a terrorist organization) no less than through recruitment (securing another person to serve under such direction).^[23] By volunteering himself as an on-call doctor for al Qaeda, Sabir rendered, or attempted to render, that organization as much of a service in producing personnel as the recruiter who solicited a doctor for that purpose. To hold otherwise would be to apply a different standard of sufficiency to the provision of personnel depending on whether the person being provided is oneself or another, a distinction for which there is no support in a statute that equally proscribes the provision of oneself or another to work under the direction of a terrorist organization.

Chief Judge Dearie suggests that a constitutional concern arises when a defendant is prosecuted for providing himself rather than a third party as personnel because in the former circumstance a defendant "`could be punished for, in effect, providing [himself] to speak out in support of the program or principles of a foreign [152] terrorist organization, an activity protected by the First Amendment.'" Dissenting Op., post at [182 n.10] (quoting United States v. Stewart, 590 F.3d 93, 118 (2d Cir.2009) (dictum)). The Supreme Court, however, has now held otherwise, explaining that the material support statute leaves persons free to engage in "independent advocacy," proscribing only conduct "directed to, coordinated with, or controlled by foreign terrorist groups." Holder v. Humanitarian Law Project, 130 S.Ct. at 2728; see id. at 2721 (observing that § 2339B "makes clear that `personnel' does not cover independent advocacy" (emphasis in original)).

Here, there is no question that Sabir was providing himself to work under the direction and control of al Qaeda — the jury heard him solemnly swear to do so. By dismissing this evidence as "insubstantial" and "immaterial," and demanding proof of a greater level of "engagement, activity or compliance" to support conviction, Dissenting Op., post at [183], our dissenting colleague persists in conflating the provision of personnel with the provision of services by that personnel. While the latter form of material support may require proof of particular engagement or activity, the former focuses on submission to the direction and control of a terrorist organization.^[24]

The importance of the distinction we draw between the evidence necessary to prove a defendant's provision of personnel to a terrorist organization and that personnel's subsequent provision of services to the organization reaches beyond this case. Experience teaches that terrorist organizations frequently recruit persons into their ranks at times and places removed from any service they might render. Thus, someone who supplies suicide bombers or pilots or chemists or doctors or simple foot soldiers to a terrorist organization may reasonably be understood to provide the organization with material support in the form of personnel when the recruited individuals pledge to work under the direction of the organization, even though they may not be called upon to render any particular service for months, years, or at all. By the same reasoning, when a person supplies himself as the bomber or pilot or doctor sought by the terrorist organization, he provides — or certainly attempts to provide — material support in the form of personnel as soon as he pledges to work under the direction of the organization. In [153] both circumstances, the organization acquires an important asset, reserve personnel, which can facilitate its planning of future terrorism objectives. See generally Holder v. Humanitarian Law Project, 130 S.Ct. at 2725 (recognizing that material support not directly furthering terrorism can be valuable in "free[ing] up other resources within the organization that may be put to violent ends"). Thus, even if Sabir needed to return to Riyadh before he could provide actual medical services to members of al Qaeda — something he planned to do within two weeks, see GX 906T at 15 — his actions on May 20, 2005, constituted a substantial step clearly intended to culminate in supplying himself as personnel to work under the direction of that terrorist organization.

(c) Upholding Sabir's Attempt Conviction Raises No Double Jeopardy Concerns

Chief Judge Dearie suggests that if we affirm Sabir's attempt conviction, a double jeopardy concern arises with respect to his conspiracy conviction. See Dissenting Op., post at [181].^[25] We do not share this concern, which Sabir himself does not raise. See, e.g., Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998).^[26]

An attempt to provide personnel does not require proof of concerted action, an essential element of conspiracy. Moreover, a conspiracy requires only proof of an agreement to provide personnel, not any substantial step toward such provision. See, e.g., Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); United States v. Basciano, 599 F.3d 184, 197-98 (2d Cir.2010). As we have already observed, Sabir admitted reaching a conspiratorial agreement with Shah even before the May 20, 2005 meeting. But it was only at the meeting that Sabir took actions — volunteering himself as an on-call doctor for al Qaeda, swearing obedience to that organization, and providing contact numbers so that al Qaeda members could call him when they needed medical treatment — that permitted a reasonable jury to find a substantial step manifesting Sabir's "firm disposition" to provide personnel. United States v. Ivic, 700 F.2d at 66. We reject Chief Judge Dearie's characterization of this conduct as merely passive.

(d) No Government Conduct Precluded a Jury Finding of a Substantial Step

Insofar as the dissent suggests that Sabir's words or actions were somehow prompted by the undercover agent,^[27] the [154] insinuation of entrapment is so patently unwarranted that Sabir himself waived this defense in the district court, precluding its consideration on appeal. See Trial Tr. at 2387-89; see also United States v. Quinones, 511 F.3d 289, 321 (2d Cir.2007) (discussing true waiver). Even if the dissent intends to imply something less than entrapment, the question of whether Sabir's recorded statements on May 20, 2005, were volunteered or solicited, firm or equivocal, was one of fact to be decided by the jury, which had the distinct advantage over this court of hearing both the recording of the May 20 meeting and Sabir's trial testimony.

Of course, in making its evaluation, the jury presumably considered facts elided by the dissent, which show that Sabir, far from being a gullible mark for al Qaeda recruitment, was a highly educated United States citizen, indeed, a trained scientist. We presume the jury also considered Sabir's statements that, before meeting Agent Soufan on May 20, 2005, Sabir had both (1) reached agreement with Shah that the two men would provide material support to al Qaeda, see GX 906T at 110, and (2) decided that he could only provide such support working within his area of expertise as a physician, see id. at 65-66. In this context, the jury could reasonably have concluded that Agent Soufan's statements did not lead Sabir into words and actions about which he had reservations. Rather, Soufan's statements served to ensure that when Sabir volunteered himself as an on-call doctor for al Qaeda and supplied contact numbers, he did so knowing and fully intending to provide personnel for the purpose of treating wounded jihad warriors and not innocent victims of terrorism.

In sum, we conclude that the totality of the evidence was more than sufficient to permit a reasonable jury to find that on May 20, 2005, Sabir took a substantial step intended to culminate in the provision of himself as personnel to work under the direction of al Qaeda. Accordingly, we uphold his convictions for both conspiring and attempting to provide material support to a foreign terrorist organization.

C. The District Court Reasonably Rejected Sabir's Batson Challenge 

Sabir, who is African-American, argues that the prosecution's use of peremptory challenges to excuse five African Americans from the jury in his case violated the Fourteenth Amendment's guarantee of equal protection as construed by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).^[28] After an extensive inquiry, the district court rejected this argument, finding that each of the five challenges was supported by credible non-discriminatory reasons. Such a ruling "represents a finding of fact," which we will not disturb in the absence of clear error. Hernandez v. New York, 500 U.S. 352, 364, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion); see United States v. Lee, 549 F.3d 84, 94 (2d Cir.2008); United States v. Taylor, 92 F.3d 1313, 1326 (2d Cir.1996). We identify no such error in this case.

A three-step inquiry guides a district court's evaluation of a Batson challenge:

First, a defendant must make a prima facie showing that a peremptory challenge [155] has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (internal quotation marks and brackets omitted). For purposes of this appeal, we assume that Sabir satisfied the "minimal burden" of a prima facie showing, Overton v. Newton, 295 F.3d 270, 279 n. 10 (2d Cir.2002), as he could do by reference to the government's overall exclusion rate for African-American prospective jurors, see Jones v. West, 555 F.3d 90, 98-99 (2d Cir.2009). Nor need we discuss the second prong of Batson analysis as Sabir does not — and cannot — contend that the government failed to proffer reasons for its challenges that were racially neutral on their face. See generally Hernandez v. New York, 500 U.S. at 360, 111 S.Ct. 1859 (observing that at second step of Batson analysis, explanation need not be persuasive; it need only be "based on something other than the race of the juror"). Instead, we focus on Sabir's argument that with respect to three of the five challenged African Americans — prospective jurors # 5, # 26, and # 27 — the reasons the government advanced were "clearly pretextual." Appellant's Br. at 57, 59, 61.^[29]

Sabir's pretext argument is based largely — though not exclusively — on the prosecution's purported failure to apply its proffered race-neutral reasons for excusing African Americans to similarly situated prospective jurors of other races or ethnicities. Such inconsistency can demonstrate a discriminatory intent. See Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (observing that "[m]ore powerful than ... bare statistics" in evidencing pretext for discrimination "are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve"); United States v. Thomas, 303 F.3d 138, 145 (2d Cir.2002) ("Support for the notion that there was purposeful discrimination in the peremptory challenge may lie in the similarity between the characteristics of jurors struck and jurors accepted." (internal quotation marks omitted)). The record in this case, however, does not demonstrate sufficient juror similarity to render clearly erroneous the district court's rejection of Sabir's Batson claim.

[156] 1. Prospective Juror # 5 

The government cited three race-neutral reasons for excusing prospective juror # 5: (1) his failure to secure appointment to the Boston police force might cause him to lean against law enforcement; (2) he was somewhat equivocal about his ability to set aside the view that he was frequently a victim of race discrimination, see Voir Dire Tr. at 11 ("I think I can give it the college try and be as fair as any other person could be."); and (3) his employment working with autistic children might make him less sympathetic to prosecution witnesses. In arguing pretext, Sabir notes that the prosecution showed no comparable concern for equivocal responses from other jurors whose backgrounds raised questions about their impartiality. We need not resolve the parties' dispute about the relative degrees of equivocation in various jurors' responses because the district court did not rely on this second proffered prosecution reason in rejecting Sabir's Batson challenge. Nor did it rely on the third reason, which the government does not maintain on appeal. Instead, the district court found that the prosecution had credibly demonstrated that it would have excused prospective juror # 5 for the first reason articulated regardless of race. See generally United States v. Douglas, 525 F.3d 225, 239 (2d Cir.2008) (observing that where prosecution articulates multiple reasons for peremptory challenge, one of which is race, it must demonstrate that challenge would have been exercised for race-neutral reason in any event).

In challenging this conclusion, Sabir suggests that the lost job opportunity was effectively irrelevant as prospective juror # 5 conceded that he did not satisfy the residency requirement for appointment. The district court, however, concluded from its own questioning of the juror that he manifested "excessive defensiveness" about the circumstances relating to his failure to secure the police appointment, which provided the government with a credible race-neutral basis for concern about his ability to be impartial toward law enforcement officials. Voir Dire Tr. at 123. This finding turned largely on the district court's assessment of the juror's demeanor and credibility, a matter "peculiarly within [its] province," Snyder v. Louisiana, 552 U.S. at 477, 128 S.Ct. 1203 (internal quotation marks omitted), to which we accord "great deference," United States v. Lee, 549 F.3d at 94. Accordingly, we conclude that Sabir has failed to identify clear error in the district court's rejection of his Batson challenge with respect to prospective juror # 5.

2. Prospective Juror # 26 

The government advanced four reasons for excusing prospective juror # 26: (1) her work as a home health aide might cause her to sympathize with Sabir, a physician; (2) her friend's daughter's marriage to a man from Yemen might also make her sympathetic to Sabir's circumstances; (3) her purportedly disheveled appearance and lack of focus in responding to questions raised attentiveness concerns; and (4) her regular viewing of three "CSI" television shows might lead her to have unrealistic expectations as to the prosecution's ability to produce technical and scientific evidence of guilt in every case.^[30] While the district court did not agree with the prosecution's characterization of the prospective juror's appearance, it found [157] the other identified concerns, including the juror's lack of focus, to constitute credible race-neutral grounds for the prosecution's exercise of a peremptory challenge.

In maintaining his claim of pretext on appeal, Sabir observes that the prosecution did not excuse non-African American venirepersons who worked in health care, notably prospective juror # 19, who worked in a veterans' hospital. Nor did it excuse non-African Americans with ties to Muslims, such as prospective juror # 69, who had dated a Muslim. The argument ignores the fact that neither of these prospective jurors demonstrated the range of concerns presented by prospective juror # 26.^[31] Certainly, neither presented a focus concern. As to prospective juror # 26, the district court expressly found that she had "a more distracted attitude" than other members of the venire, which she manifested by persistently "looking over toward her left during the questioning." Voir Dire Tr. at 129. We defer to the district court's considerable voir dire experience in making demeanor observations, see Snyder v. Louisiana, 552 U.S. at 477, 128 S.Ct. 1203, and we note that such distractedness is, by itself, a sufficient race-neutral ground to support exercise of a peremptory challenge, see generally Brown v. Kelly, 973 F.2d 116, 121 (2d Cir.1992) ("An impression of the conduct and demeanor of the prospective juror during the voir dire may provide a legitimate basis for the exercise of a peremptory challenge.").

Accordingly, we identify no clear error in the district court's rejection of Sabir's Batson challenge with respect to prospective juror # 26.

3. Prospective Juror # 27 

The prosecution offered two race-neutral reasons for excusing prospective juror # 27: (1) the person's thirty-year career in the New York City Department of Social Services might cause him to be sympathetic to persons in difficult straits as well as more skeptical of government authority, and (2) his frequent television viewing of the three "CSI" television shows might make him reluctant to convict in the absence of scientific evidence. See Voir Dire Tr. at 131.

In Messiah v. Duncan, 435 F.3d 186 (2d Cir.2006), we observed that "[i]t is not implausible" for a prosecutor to think that "a social service provider who has dedicated his professional life to helping others might have more sympathy for a defendant" than other prospective jurors. Id. at 200. That conclusion, like many others informing peremptory challenges, may be based on a group stereotype, but not one that violates equal protection. Cf. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 n. 14, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (distinguishing peremptory challenges based on race from those based on occupation).

Similarly, it was plausible for the prosecutor to think that a juror who regularly watched television shows in which forensic [158] science conclusively solved crimes might be more inclined to demand such evidence in order to convict. See United States v. Fields, 483 F.3d 313, 355 n. 39 (5th Cir. 2007) (observing that claim that "CSI" shows cause jurors to demand scientific evidence was "plausible" even though not "proven empirically").

The district court having found the prosecution credible in its profession of these concerns with respect to prospective juror # 27, we identify no clear error in its rejection of Sabir's Batson argument with respect to the exercise of this peremptory challenge.

In sum, we reject Sabir's equal protection challenge to his conviction as without merit.

D. Sabir's Evidentiary Challenges Are Uniformly Without Merit

Sabir asserts that his conviction is infected by a host of evidentiary errors pertaining to (1) the receipt of expert testimony, see Fed.R.Evid. 702; (2) the receipt of hearsay statements by Shah, see U.S. Const. amend. VI; Fed.R.Evid. 801(d)(2)(E); (3) the exclusion of a prior inconsistent statement by a prosecution witness, see Fed.R.Evid. 801(d)(1)(A); (4) the exclusion of evidence of defendant's state of mind, see Fed.R.Evid. 803(3); and (5) the receipt of myriad evidence that was more prejudicial than probative, see Fed. R.Evid. 403.

1. Expert Witness Testimony

Sabir challenges the district court's decision, supported by a detailed written opinion, to allow Evan Kohlmann to testify as an expert witness about al Qaeda and Azzam Publications, the publisher of a jihadist videotape offered in the prosecution's direct case. See United States v. Sabir, No. 05 Cr. 673(LAP), 2007 WL 1373184 (S.D.N.Y. May 10, 2007).

The admission of expert testimony is governed by Fed.R.Evid. 702, which states as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The law assigns district courts a "gatekeeping" role in ensuring that expert testimony satisfies the requirements of Rule 702. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (articulating non-exhaustive list of criteria court may apply in performing gatekeeping function). The inquiry is "a flexible one," Daubert v. Merrell Dow Pharms., Inc., 509 U.S. at 594, 113 S.Ct. 2786, and district courts enjoy considerable discretion in deciding on the admissibility of expert testimony, see Kumho Tire Co. v. Carmichael, 526 U.S. at 152, 119 S.Ct. 1167. We will not disturb a ruling respecting expert testimony absent a showing of manifest error, see Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213 (2d Cir.2009), which is not present here.

a. Kohlmann's Testimony Satisfied the Enumerated Requirements of Rule 702

Sabir contends that Kohlmann's testimony satisfied none of the three enumerated requirements of Rule 702. We disagree.

Kohlmann's proposed expert testimony had a considerable factual basis: (1) his graduate studies at Georgetown University's [159] School of Foreign Service and Center for Contemporary Arab Studies and at the University of Pennsylvania Law School; (2) his full time employment at two organizations focusing on terrorism and al Qaeda, "Globalterroralert.com" and the Investigative Project; (3) his authorship of various academic papers and a book on al Qaeda; (4) his provision of consulting services on terrorism and al Qaeda to various federal agencies; and (5) his ongoing efforts to collect, analyze, and catalogue written, audio, and visual materials relevant to terrorism generally and al Qaeda in particular, including the records of guilty pleas and confessions from admitted al Qaeda operatives.

Before admitting Kohlmann's testimony, the district court also considered — without objection from the parties — the record of a Daubert hearing in another case in which Kohlmann was proffered as a terrorism expert. The evidence adduced at that hearing permitted the trial judge to conclude that Kohlmann's work had undergone "`various forms of peer review,'" that his opinions were "`generally accepted within the relevant community,'" and that his methodology was "`similar to that employed by experts that have been permitted to testify in other federal cases involving terrorist organizations.'" United States v. Sabir, 2007 WL 1373184, at *8 (quoting United States v. Paracha, No. 03 Cr. 1197(SHS), 2006 WL 12768, at *20 (S.D.N.Y. Jan. 3, 2006)).^[32]

On this record, we conclude that the district court acted well within its discretion in concluding that Kohlmann's testimony satisfied the enumerated requirements of Rule 702.^[33]

b. Kohlmann's Testimony Was Helpful to the Jury

Sabir submits that, even if Kohlmann properly qualified as an expert, his testimony about al Qaeda's history and structure was not helpful because jurors' familiarity with al Qaeda and its leader, Osama bin Laden, could be presumed. The argument requires little discussion. We have approved the use of expert testimony to provide juries with background on criminal organizations, notably organized crime families. See, e.g., United States v. Matera, 489 F.3d 115, 121-22 (2d Cir.2007). As we explained in United States v. Amuso, 21 F.3d 1251 (2d Cir.1994):

[d]espite the prevalence of organized crime stories in the news and popular media, these topics remain proper subjects for expert testimony. Aside from the probability that the depiction of organized crime in movies and television is misleading, the fact remains that the operational methods of organized crime families are still beyond the knowledge of the average citizen.

Id. at 1264. The rationale applies with equal force to terrorist organizations, including al Qaeda.

c. Kohlmann's Testimony Was Relevant 

Sabir's relevancy challenge to certain aspects of Kohlmann's testimony is equally [160] unavailing. See Fed.R.Evid. 401, 403. To the extent Sabir submits that Kohlmann's testimony about terrorist activities in Saudi Arabia — derived in part from Internet sources — was too speculative to be probative, he misses the point of that testimony. The issue for jury consideration was not whether the government could prove that al Qaeda was, in fact, responsible, for particular terrorist acts in Saudi Arabia, but whether it could reasonably be inferred that a person such as Sabir, who had lived in Saudi Arabia for a year, and who proposed to support al Qaeda's efforts there by serving as the organization's on-call doctor, would know that he was providing support to an organization that engaged in terrorism. Kohlmann's testimony as to generally available information about al Qaeda's terrorist activities in Saudi Arabia was more probative than prejudicial on this knowledge element of § 2339B. The prosecution's failure to adduce specific evidence of Sabir's familiarity with the information went to the weight of Kohlmann's testimony rather than to its admissibility.

We similarly reject Sabir's relevance challenge to Kohlmann's testimony about al Qaeda training camps. Such testimony was plainly relevant to mens rea as Sabir was charged both with conspiring with Shah to provide martial arts training to mujahideen and with agreeing to be on call to treat wounded mujahideen who sustained injuries either "in training" or in actual al Qaeda "operation[s]." GX 906T at 48.

d. Kohlmann's Testimony Did Not Reach Beyond the Government's Rule 16 Proffer

Sabir faults the district court for allowing Kohlmann to testify beyond the scope of the government's proffer. See Fed. R.Crim.P. 16(a)(1)(G). The claim is patently meritless. The testimony about which Sabir complains, relating to "Islam, fatwa, and the 9/11 attacks," Appellant's Br. at 72, easily fell within the government's broad proffer, outlined in a February 23, 2007 letter, to present evidence about al Qaeda's "origins," "history," "structure," "leadership," "instructional methods," "operational logistics," and "acts of terrorism," United States v. Sabir, 2007 WL 1373184, at *2 & n. 5 (quoting government proffer letter). Similarly meritless is Sabir's challenge to Kohlmann's expertise to discuss "Islam, fatwa, and the 9/11 attacks," to the limited extent of providing background on al Qaeda. Even if Kohlmann had testified beyond the government's Rule 16 proffer — which he did not — Sabir fails to show the "violation of a substantial right," the standard necessary to secure reversal for such an evidentiary error. United States v. Ebbers, 458 F.3d 110, 122 (2d Cir.2006).

2. Co-Conspirator Statements

Sabir contends that the admission of tape recorded conversations between co-defendant Shah and confidential informant Saeed or undercover Agent Soufan violated both Fed.R.Evid. 801(d)(2)(E) and the Sixth Amendment's Confrontation Clause as construed by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).^[34] Neither argument is persuasive.

a. Shah's Recorded Conversations with the Informant and the Undercover Were Admissible Under Fed.R.Evid. 801(d)(2)(E) 

We review the district court's decision to admit Shah's recorded conversations as co-conspirator [161] statements under Fed.R.Evid. 801(d)(2)(E) only for clear error. See United States v. Al-Moayad, 545 F.3d 139, 173 (2d Cir.2008). In urging such error, Sabir submits that the recordings were inadmissible because he did not participate in the conversations at issue and was not mentioned in the course thereof. The argument is flawed in two respects. First, it misstates the facts. Shah's recorded conversations with Saeed and Soufan repeatedly referenced Sabir both by his first name "Rafiq," see, e.g., GX 801T at 1; GX 812T at 1, and by his profession as a "doctor," see, e.g., GX 807T at 3; GX 902T at 23-24. Second, and more important, it misstates the standard for admissibility under Rule 801(d)(2)(E).

Rule 801(d)(2)(E) states that out-of-court declarations are not excludable as hearsay if they are made "by a coconspirator of a party during the course and in furtherance of the conspiracy." To admit an out-of-court declaration under this rule, the district court must find by a preponderance of the evidence "(a) that there was a conspiracy, (b) that its members included the declarant and the party against whom the statement is offered, and (c) that the statement was made during the course of and in furtherance of the conspiracy." United States v. Al-Moayad, 545 F.3d at 173 (internal quotation marks omitted); see also Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Where, as here, Shah and Sabir are the only alleged conspirators, the district court was required to find that Shah made the statements at issue in furtherance of a then-existing conspiracy between these two men.^[35] Such a finding was amply supported by the recorded statements of both defendants. See Bourjaily v. United States, 483 U.S. at 175-76, 107 S.Ct. 2775; United States v. Tellier, 83 F.3d 578, 580 (2d Cir.1996) (observing that hearsay statements may themselves be considered in determining admissibility under Rule 801(d)(2)(E), provided there is some independent corroboration of defendant's participation in conspiracy).

At the very start of his first recorded meeting with Saeed, on September 20, 2003, Shah identified "Rafiq" as his "partner," a term implying some agreement between the two men to pursue a common objective. GX 801T at 1 (explaining that "me and Rafiq are real tight" and "you always would see me with Rafiq"); see Trial Tr. at 600. Shah made plain that the partnership extended to Shah's martial arts efforts, explaining that Sabir owned the building in Harlem where Shah operated his martial arts training center. See id. Thereafter, in recorded conversations with Saeed and Agent Soufan about joining al Qaeda, Shah repeatedly emphasized his partnership with Sabir and indicated that the two men would come to the terrorist organization as a "package ... me and a doctor." GX 807T at 3-4; see GX 902T at 23 (stating "I come like with a pair, me and a doctor"). Shah explained that he knew Sabir's intentions and did not need to speak further with him to make this [162] commitment, a statement suggestive of an existing agreement between the two men. See GX 902T at 23.

Moreover, on May 20, 2005, when Sabir met with Agent Soufan, he provided independent and explicit confirmation for what Shah had been saying to the informant and undercover agent: that Sabir and Shah had long discussed and agreed to support terrorists' pursuit of jihad.

UC: And, I'm, I will offer you that [the oath of allegiance to al Qaeda], brother, but it is up to you.

SABIR: So, you know this brother [Shah] here and I, I think, we have, I have to go with my brother because we have, we have talked about this for a long time, and because we have talked about it a long time, I feel it, uh, uh, not just that my spirit is with it, ... but that if I didn't do it I will be abandoning my brother. And the very thing we agreed upon it in the first place.... [W]e are partners.

GX 906T at 110 (emphasis added).^[36]

This record plainly supports the district court's finding that, as of the time of the first recorded conversation at issue in 2003, Shah and Sabir had already reached a tacit understanding to use their respective professional expertise to support jihad, and that Shah's statements before the May 20, 2005 meeting, like Sabir's statements at that meeting, were made in furtherance of that agreement.

Sabir submits further that Shah's recorded statements were inadmissible under Rule 801(d)(2)(E) because they were not made in furtherance of the conspiracy, but instead were "idle chatter." United States v. Paone, 782 F.2d 386, 390 (2d Cir.1986). We are not persuaded. Shah was plainly seeking to persuade someone whom he thought could admit him to al Qaeda that he and Sabir were trustworthy and would, in fact, provide material assistance to that organization. That Shah's statements were sometimes vague and rambling does not alter the fact that, in their entirety, they were made in furtherance of an agreement with Sabir to provide material support for terrorism. In any event, Sabir does not show that any possible digressions from the conspiratorial purpose in Shah's statements were prejudicial. See United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009).

b. The Admission of Shah's Statements Did Not Violate Sabir's Right to Confrontation

Sabir's reliance on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, to mount a Confrontation Clause challenge to the receipt of Shah's statements is foreclosed by United States v. Saget, 377 F.3d 223 (2d Cir.2004), in which this court held that "a declarant's statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony within the meaning of Crawford," id. at 229. As [163] then-Judge Sotomayor explained in writing for the Saget panel, Crawford instructs that the critical factor in identifying a Confrontation Clause concern is "the declarant's awareness or expectation that his or her statements may later be used at a trial." Id. at 228. Here, there is no question that in his conversations with Saeed and Soufan, Shah was unaware that he was speaking to agents for the government or that his statements might later be used at a trial. Because Shah's recorded statements are thus not testimonial in nature, this case is on all fours with Saget, and Sabir's Confrontation Clause challenge fails. See also United States v. Logan, 419 F.3d 172, 178 (2d Cir.2005) ("In general, statements of co-conspirators in furtherance of a conspiracy are non-testimonial.").

3. Prior Inconsistent Statement 

Prosecution witness Tony Richardson testified that while participating in Shah's martial arts classes in Maryland, he met a doctor introduced to him as "Dr. Sabir or Sabir Rafiq or Rafiq Sabir" with whom he spoke briefly. Trial Tr. at 230-31.^[37] Asked on cross-examination if he was positive as to the name, Richardson answered "No, not positive. I don't even remember his name totally. It was Dr. Sabir Rafiq or Rafiq Sabir, something to that effect." Id. at 232. Defense counsel then sought to impeach Richardson by reading aloud from grand jury testimony in which Richardson ascribed the name Rafiq Sabir or Sabir Rafiq to a friend in Texas.

Q. [Do you know] Rafiq Sabir?

A. Do not — Sabir Rafiq.

Q. Rafiq Sabir. Do you know a Sabir Rafiq?

A. My friend in Texas, which I don't think he knows Mahmud at all. I think his middle name is Rafiq Sabir, Sabir Rafiq, I'm not sure.

Id. at 235. The district court overruled the prosecution's objection to this line of questioning, but did not permit Sabir to offer the grand jury testimony into evidence as a prior inconsistent statement under Fed.R.Evid. 801(d)(1)(A). Sabir submits that the latter ruling was erroneous. We identify no abuse of discretion, much less violation of a substantial right, in the district court's decision. See United States v. Bah, 574 F.3d 106, 116 (2d Cir. 2009); United States v. Mercado, 573 F.3d at 141.

Rule 801(d)(1) of the Federal Rules of Evidence states that an out-of-court statement is not hearsay if "[t]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury...." Richardson's grand jury testimony indicating that he had a friend in Texas whose "middle name is Rafiq Sabir [or] Sabir Rafiq," was not, strictly speaking, inconsistent with his trial testimony that the doctor whom he briefly met at Shah's martial arts class was named "Dr. Sabir or Sabir Rafiq or Rafiq Sabir." As the district court correctly observed, if Richardson had given a negative answer at trial to a question about knowing anyone else named Sabir beside this doctor, then the grand jury testimony might have presented an inconsistency. But no such question was ever asked.

In any event, Sabir can hardly demonstrate that he was prejudiced by the district court ruling. The grand jury testimony [164] was not relevant for its truth, i.e., whether Richardson in fact had a friend in Texas, part of whose name was Rafiq Sabir or Sabir Rafiq. Rather, it was relevant for the fact that, when asked if he recognized the name Rafiq Sabir, Richardson did not mention any doctor whom he met with Shah, but only a friend in Texas. This fact was adequately placed before the jury by Richardson's acknowledgment of the grand jury statement. It did not require actual admission of the grand jury record.

4. State-of-Mind Evidence 

Sabir submits that the district court erred in refusing to admit statements he made to federal authorities on October 5, 2004, when entering the United States from Saudi Arabia. According to a contemporaneous FBI report, see Appellee's Br. Add. 1-3, these statements recounted Sabir's personal, educational, and employment background; the circumstances prompting his move from the United States to Saudi Arabia; his personal and professional activities in Saudi Arabia; his financial support for various causes; his appreciation for life in the United States compared to Saudi Arabia; and his intent to return to live in the United States at some unspecified future time and to "make things better" in this country. In one statement, Sabir professed not to condone suicide bombing. Sabir submits that these statements were admissible because they evidenced a state of mind not disposed to provide material support to al Qaeda.

We note that both before the district court and on appeal Sabir presented this argument in a conclusory fashion. The one-paragraph argument in his appellate brief does not cite — much less discuss — the relevant rule, see Fed.R.Evid. 803(3), or our precedents construing its scope, see, e.g., United States v. Cardascia, 951 F.2d 474 (2d Cir.1991); United States v. DiMaria, 727 F.2d 265 (2d Cir.1984) (Friendly, J.). No matter. Even if Sabir could demonstrate that his October 5, 2004 statements were admissible under Rule 803(3), a point we need not here decide, we would not grant him a new trial because any error was plainly harmless.

Sabir testified at length about his views regarding the United States, al Qaeda, and its methods. See, e.g., Trial Tr. at 1491 (testimony of Sabir that "[s]uicide is wrong in all circumstances in Islam"). Further, he was permitted to introduce into evidence a document he wrote in February 2005, which described his vision for an "Islamic Justice Organization" dedicated to "ensur[ing] justice for Muslims" by lawful means. See id. at 1554, 1558. The government's contrary evidence of Sabir's intent to commit the charged crimes, however, was clearly overwhelming. The tape recorded meeting of May 20, 2005, supra at [132-33, 140, 143-46], reveals Sabir swearing loyalty to support the terrorist organization by providing medical treatment for its wounded combatants in Saudi Arabia. On this record, we easily conclude that the exclusion of Sabir's October 5, 2004 statements was harmless. See United States v. Song, 436 F.3d 137, 140 (2d Cir.2006) (deeming harmless erroneous exclusion of state of mind evidence where defendant "was permitted to testify in sufficient detail as to his theory of the case" and government presented overwhelming evidence of guilt); United States v. Lawal, 736 F.2d 5, 9 (2d Cir.1984) (same).

5. Rule 403 Objections 

Sabir submits that the district court erred in admitting evidence that was more prejudicial than probative, specifically: (a) certain materials seized from Shah pertaining to Mohammad Shareef, a radical [165] Muslim cleric; (b) testimonial evidence regarding a 2000 incident in which certain individuals — not including Shah or Sabir — attempted to take control of a Poughkeepsie mosque by force; and (c) testimony about mujahideen activities in Bosnia. We are not persuaded.

a. The Shareef Materials

Because Sabir raised no objection to the Shareef materials at trial, we review the admission of that material only for plain error. See United States v. Yousef, 327 F.3d at 121. The point requires little discussion because Sabir's conclusory challenge fails to demonstrate error in the admission of evidence indicating that Shah held radical views on Islam. As Shah would manifest in his various recorded statements, such views fueled the formation of the charged conspiratorial agreement to provide material support for jihad. Further, Sabir does not even attempt to show how the admission of such evidence — in a case in which the conspirators are recorded swearing allegiance to al Qaeda — affected his substantial rights or undermined "`the fairness, integrity, or public reputation of judicial proceedings.'" United States v. Payne, 591 F.3d 46, 66 (2d Cir.2010) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

b. The Poughkeepsie Mosque Incident

We review the remaining two rulings for abuse of discretion, see United States v. Bah, 574 F.3d at 116; United States v. Mercado, 573 F.3d at 141, and detect none here.

Sabir submits that the district court committed Rule 403 error in permitting prosecution witness Anwar Kearney, imam of a mosque in Poughkeepsie, to testify that in 2000, a group of persons who followed the teachings of Mohammad Shareef attempted to take over the mosque by force of arms. Although Shah, who taught martial arts at the mosque, associated with this group, he did not participate in the armed takeover attempt. Nor did Sabir, who occasionally visited Shah in Poughkeepsie at about this time.

The district court concluded that the evidence was nevertheless probative of the evolution of Shah's state of mind in embracing jihad. We cannot identify abuse of discretion in this conclusion. Shah's evolution as a militant supporter of jihad was relevant in the trial of Sabir because the two men were close, longstanding "partners," purportedly so familiar with each other's minds that one could speak for the other in supporting jihad. GX 906T at 110. Indeed, at the May 20, 2005 meeting at which the partners swore allegiance to al Qaeda, Sabir acknowledged that he and Shah had been discussing jihad for a long time and referenced past experiences that informed their agreement to support jihad by working within their respective areas of expertise. See id. at 65, 110.

c. Mujahideen Activities in Bosnia

Sabir submits that testimony from Yahya Muhammad, a longtime friend of Shah, about the support he provided to mujahideen in Bosnia was more prejudicial than probative. In fact, the evidence was relevant to understanding why, in about 2003, Sabir would ask Muhammad for advice about traveling abroad to provide medical assistance to mujahideen. See Trial Tr. at 286-87. Such evidence, in turn, tended to demonstrate that when Sabir subsequently offered to serve as an on-call doctor for al Qaeda combatants in Saudi Arabia, he was acting with the knowledge necessary to support the counts of conviction.

[166] E. Summation Issues

Sabir contends that the district court erred by (1) precluding him from arguing in summation that the government had targeted him for prosecution based on his religion, while allowing the government to make a contrary argument; and (2) permitting the government to vouch for its witnesses. In support of the first argument, Sabir points us to the following excerpt from the summations.

[DEFENSE COUNSEL]: Dr. Sabir is an important piece on the chess board. He's an important piece to the FBI investigation, and he's an important piece to Shah. Everybody wants Dr. Sabir.

[THE GOVERNMENT]: Objection.

THE COURT: Sustained.

[DEFENSE COUNSEL]:.... [T]here's a very interesting discourse that occurred between myself and [Agent] Soufan while he was testifying about whether or not there was an increase in investigation by the FBI of the Muslim community post 9/11. Well, common sense, when you talk about common sense, you all know that there was, and to sit here and try to tell you that there wasn't just belies what the agenda is.

[THE GOVERNMENT]: Objection.

THE COURT: Sustained. Ladies and gentlemen, the decision of the government to investigate an individual or the decision of a grand jury to indict an individual is none of your concern. The only concern this jury has is whether or not the government has or has not proved each element[] of the crimes charged beyond a reasonable doubt.

Trial Tr. at 2417-18.

A sidebar conference ensued, at which the district court cautioned defense counsel to refrain from arguing selective prosecution to the jury, advising that such a defense should be raised with the court in a post-trial motion.^[38] Defense counsel initially complied with this instruction, but then more subtly returned to the selective prosecution theme in attacking the FBI for "decid[ing] which way the case [against Sabir] was going" based on an internal perception of what was "correct" without regard to whether "reality" demonstrated otherwise. Id. at 2431.

The government responded with the following rebuttal argument:

Then, there was the argument that the government is out looking for sinners. The government picked and chose Dr. Rafiq Sabir as some sort of trophy blaming the government for its efforts [in] fighting terrorism; and this from a defendant who said, I support all anti-terrorism efforts, that is, except for if it involves the use of undercovers, except if it involves people infiltrating the mujahideen.

. . .

Well, the government, as the Judge told you, is not on trial. It's not a game of shifting blame to the government and blaming agents for what they do, their jobs, putting their lives on the line and finding terrorism wherever it is.

You heard the testimony of both the agents in this case; former Agent Ali Soufan, and Special Agent Brian Murphy. [167] Both served this country with distinction. Both told you that they followed the investigation where it went. Where it went and where it ended up was May 20, 2005. With the defendant taking bayat to bin Laden.

Id. at 2487-88.

Following rebuttal, Sabir unsuccessfully moved for a mistrial, arguing that the government had improperly raised the issue of selective prosecution and vouched for its own witnesses. Reviewing the district court's decision for abuse of discretion, see United States v. Smith, 426 F.3d 567, 571 (2d Cir.2005), we identify none.

First, we identify no error in the district court's challenged rulings with respect to the defense summation. As we have explained, a selective prosecution defense alleges "a defect in the institution of the prosecution," and as such "is an issue for the court rather than the jury." United States v. Regan, 103 F.3d 1072, 1082 (2d Cir.1997) (internal quotation marks omitted); see also Fed.R.Crim.P. 12(b)(3)(A).

Second, we identify no error in the government's rebuttal. The law has long recognized that summations — and particularly rebuttal summations — are not "detached exposition[s]," United States v. Wexler, 79 F.2d 526, 530 (2d Cir.1935), with every word "carefully constructed ... before the event," Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Precisely because such arguments frequently require "improvisation," courts will "not lightly infer" that every remark is intended to carry "its most dangerous meaning." Id. To be sure, the prosecution may not "appeal to ... passion" in urging a guilty verdict, United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975), but it may be passionate in arguing that the evidence supports conviction, see United States v. Wexler, 79 F.2d at 530 (recognizing that summations are "inevitably charged with emotion"). As a consequence, a defendant who seeks to overturn his conviction based on alleged prosecutorial misconduct in summation bears a "heavy burden." United States v. Feliciano, 223 F.3d 102, 123 (2d Cir.2000) (internal quotation marks omitted). He must show more than that a particular summation comment was improper. See generally United States v. Newton, 369 F.3d 659, 680 (2d Cir.2004) (observing that "prosecutors' comments standing alone" will rarely warrant overturning conviction (internal quotation marks omitted)); United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (noting that "it is a `rare case'" in which improper summation comments by prosecution will be so prejudicial as to warrant new trial (quoting Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir.1990))). He must show that the comment, when "viewed against the entire argument to the jury," United States v. Bermudez, 529 F.3d 158, 165 (2d Cir.2008) (internal quotation marks omitted), and "in the context of the entire trial," was so severe and significant as to have "substantially prejudiced" him, depriving him of a fair trial, United States v. Newton, 369 F.3d at 680; see United States v. Locascio, 6 F.3d 924, 945 (2d Cir.1993). That is not this case.

In his own summation, defense counsel repeatedly ignored court warnings and insinuated to the jury that Sabir was the victim of selective prosecution. While it was the court's role, not the prosecution's, to instruct the jury that this question was not before them, the government hardly deprived Sabir of a fair trial by briefly alluding to these improper arguments in reminding them of the judge's instruction. See generally United States v. Tocco, 135 F.3d 116, 130 (2d Cir.1998)("[W]here the defense summation makes arguments and allegations against the government, the prosecutor may respond to them in rebuttal."); [168] United States v. Rivera, 971 F.2d 876, 883 (2d Cir.1992) (noting that defense argument may "`open the door' to otherwise inadmissible prosecution rebuttal"); United States v. Marrale, 695 F.2d 658, 667 (2d Cir.1982) (noting that "prosecutor is ordinarily entitled to respond to the evidence, issues, and hypotheses propounded by the defense").

Similarly, we identify no error in the prosecution's response to the defense attack on its agents' credibility and competency. See United States v. Perez, 144 F.3d 204, 210 (2d Cir.1998) (recognizing prosecutors' "greater leeway" in commenting on own witnesses' credibility after defense attack). While prosecutors may not strike "foul" blows they may strike "hard" ones, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), and the challenged arguments stayed on the permissible side of this line, cf. United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (holding that prosecutor may not imply that extrinsic evidence not before jury supports witness's credibility); United States v. Drummond, 481 F.2d 62, 64 (2d Cir.1973) (holding that prosecutor may not make issue of "own credibility" (internal quotation marks omitted)); accord United States v. Rivera, 971 F.2d at 884. While routine credibility attacks do not generally call for references to the life-threatening nature of law enforcement work, where, as in this case, the defense referenced the danger inherent in dealing with co-defendant Shah to question the undercover agent's credibility or competency in certain respects, the government's brief allusion to agents "putting their lives on the line" was within the bounds of fair response.

F. Juror Misconduct

In the course of jury deliberations, the district court learned that Juror # 8, using the electronic search engine "Google," had discovered that co-defendant Tarik Shah had pleaded guilty to unspecified charges and then communicated that fact to other jurors. Sabir submits that the district court erred in failing to grant his pre-verdict motion for a mistrial or his post-verdict motion for a new trial, see Fed.R.Crim.P. 33, based on this juror misconduct. We are not persuaded.

We review for abuse of discretion the district court's handling of alleged juror misconduct, see United States v. Vitale, 459 F.3d 190, 197 (2d Cir.2006); its denial of a mistrial, see United States v. Smith, 426 F.3d 567, 571 (2d Cir.2005); and its denial of a Rule 33 motion for a new trial, see United States v. McCourty, 562 F.3d 458, 475 (2d Cir.2009). In doing so, we accord the district court "broad flexibility," mindful that addressing juror misconduct always presents "a delicate and complex task," United States v. Cox, 324 F.3d 77, 86 (2d Cir.2003) (internal quotation marks omitted), particularly when the misconduct arises during deliberations, see United States v. Thomas, 116 F.3d 606, 618 (2d Cir.1997). Further, we recognize that the district court is "in the best position to sense the atmosphere of the courtroom as no appellate court can on a printed record." United States v. Abrams, 137 F.3d 704, 708 (2d Cir.1998) (internal quotation marks omitted).

While the law presumes prejudice from a jury's exposure to extra-record evidence, see Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954); United States v. Greer, 285 F.3d 158, 173 (2d Cir.2002), that presumption may be rebutted by a "showing that the extra-record information was harmless," Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir.1994); see United States v. Schwarz, 283 F.3d 76, 99 (2d Cir.2002) ("[N]ot every instance of a juror's exposure to extrinsic information [169] results in the denial of a defendant's right to a fair trial. Many such instances do not."). The necessary inquiry is "objective," Bibbins v. Dalsheim, 21 F.3d at 17 (internal quotation marks omitted), and focuses on two factors: (1) the nature of the information or contact at issue, and (2) its probable effect on a hypothetical average jury, see United States v. Schwarz, 283 F.3d at 99.

The effect inquiry properly considers the "entire record" in making an objective assessment of possible prejudice. United States v. Weiss, 752 F.2d 777, 783 (2d Cir.1985). This includes circumstances surrounding the jurors' exposure to the information. See United States v. Greer, 285 F.3d at 173. But a court may not reach further to inquire into the subjective effect of the information on jurors' mental processes or on the jury's deliberations. This limitation, memorialized in Fed. R.Evid. 606(b), is grounded in the deeply rooted view that "the secrecy of deliberations is essential to the proper functioning of juries." United States v. Thomas, 116 F.3d at 618-19 (collecting authorities). In any event, a district court must be careful that it does not itself "create prejudice by exaggerating the importance and impact" of extra-record information. United States v. Abrams, 137 F.3d at 708.

With these principles in mind, we conclude that the district court acted well within its discretion in denying Sabir's mistrial and new trial motions. The district court reasonably considered the "nature" of the extrinsic evidence — an Internet report of Shah's guilty plea — in light of Sabir's summation concession that Shah was, in fact, guilty: "[I]f this was a case about Tarik Shah, I wouldn't even have got up. Tarik Shah is guilty." Trial Tr. at 2406. The district court concluded that, in these circumstances, Sabir was unlikely to be harmed by extrinsic information entirely consistent with his own concession.

In urging otherwise, Sabir submits that the defense summation did not indicate the actual outcome of Shah's case; was not itself "evidence" of the crime; and, in contrast to the extra-record information, was not hearsay. The second and third points warrant little discussion, as the district court's assessment of the nature of the information was not based on its admissibility. Nor did the district court fault defense counsel's summation or excuse the juror misconduct. As for the first point, Sabir notes a difference without a distinction for purposes of identifying prejudice. Whatever harm might have ensued from the jury's discovery of Shah's guilty plea in a case where Sabir's defense did not concede his codefendant's guilt, where, as here, such a concession was made, the jury's discovery that a guilty co-defendant had, in fact, pleaded guilty, was unlikely to deprive Sabir of a fair trial.

That conclusion is only reinforced by the district court's questioning of the jurors. When Juror # 8 was asked if anything would prevent her from being fair and impartial in judging Sabir's case, she replied that there was not. Asked if she would be able to follow the court's instruction to judge the case solely on the basis of the trial evidence, Juror # 8 answered, "Definitely." Id. at 2694. We have recognized that, in appropriate circumstances, confirmation of a juror's ability to follow cautionary instructions can indicate the lack of harm from misconduct. See United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994); accord United States v. Abrams, 137 F.3d at 708.

Sabir suggests that the district court erred in reaching this conclusion without further asking Juror # 8 whether she had "Googled" Sabir himself. We disagree. Such a leading question might itself have [170] "create[d] prejudice" by implying that a broader search could yield further information about Sabir. See United States v. Abrams, 137 F.3d at 708. The district court acted well within its discretion in instead asking Juror # 8 more generally whether she had uncovered any information beyond the fact of Shah's guilty plea and, upon receiving a negative response, making no further inquiry particular to Sabir.

We further conclude that the district court did not abuse its discretion in declining to question the remaining jurors individually. Addressing the jury as a whole, the district court instead repeated certain instructions potentially implicated by Juror # 8's actions. These specifically included the following:

It is your function in this case to decide the issues of fact. Your decision on the issues of fact is to be based solely on the evidence. Nothing I say is evidence. Nothing any of the lawyers say is evidence. Questions by themselves are not evidence. Objections are not evidence. Testimony that has been excluded or which you're told to disregard is not evidence. The evidence consists of the sworn testimony of the witnesses and the exhibits that have been received into evidence for your consideration. Also, in some instances there were facts the lawyers agreed to or facts that I instructed you to find.

... You may not draw any inference, favorable or unfavorable, toward the government or the defendant from the fact that any person in addition to the defendant is not on trial here. You also may not speculate as to the reasons why other persons are not on trial. Those matters are wholly outside your concern and have no bearing on your function as jurors.

. . .

Now, ladies and gentlemen, is there any juror who is unable or unwilling to follow those instructions? Anyone?

Trial Tr. at 2698-2700. Because no juror indicated that he or she would have a problem following these instructions, see United States v. Thai, 29 F.3d at 803, the district court reasonably concluded from the totality of the circumstances that the misconduct at issue did not warrant either a mistrial or new trial, see United States v. Greer, 285 F.3d at 173; United States v. Abrams, 137 F.3d at 708.

III. Conclusion 

To summarize, we conclude that:

1. Title 18 U.S.C. § 2339B is not overbroad or otherwise unconstitutionally vague as applied to Sabir's case.

2. The trial evidence was sufficient to support Sabir's conviction for conspiring and attempting to provide material support to a known terrorist organization.

3. The jury selection in Sabir's case did not violate the Equal Protection Clause as construed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

4. With respect to Sabir's various evidentiary challenges:

a. the district court did not abuse its discretion in admitting expert testimony pertaining to al Qaeda pursuant to Fed. R.Evid. 702;

b. the admission of recorded conversations between co-defendant Shah and either an informant or undercover agent was supported by Fed.R.Evid. 801(d)(2)(E) and did not violate Sabir's constitutional right to confrontation;

c. the district court acted within its discretion in allowing cross-examination about a witness's prior statements in the grand jury but in refusing to admit the grand jury transcript as evidence of a prior [171] inconsistent statement pursuant to Fed. R.Evid. 801(d)(1)(A);

d. we need not decide whether the district court erred in holding that evidence of Sabir's professed state of mind on October 5, 2004, was inadmissible under Fed. R.Evid. 803(3) because any error would, in any event, be harmless in this case; and

e. there is no merit to Sabir's claims that various evidence should have been excluded under Fed.R.Evid. 403 as more prejudicial than probative.

5. The district court's summation rulings did not deprive Sabir of a fair trial.

6. The district court acted well within its discretion in denying Sabir's motions for a mistrial and new trial because the record plainly supports its finding that Sabir was not prejudiced by juror exposure to extrinsic Internet information about co-defendant Shah.

The judgment of conviction is AFFIRMED.

REENA RAGGI, Circuit Judge, concurring in part:

With respect to Part II.D.4 of the court's opinion, I certainly agree with the conclusion that if there was any error in the district court's failure to admit Sabir's October 5, 2004 statements to federal authorities when entering the United States from Saudi Arabia, such error was harmless beyond a reasonable doubt. See ante at [164-65]. I would go further, however, and conclude that there was no error because Sabir's October 5, 2004 statements did not, in fact, satisfy the requirements of Federal R. Evid. 803(3). To explain this conclusion, it is necessary to discuss those requirements in some detail.

Rule 803(3) recognizes a hearsay exception for

[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

All hearsay exceptions are rooted in one or more conditions thought to ensure sufficient reliability to permit a factfinder to forego the law's preferred means for testing evidence: cross-examination. In the case of Rule 803(3), that condition is "contemporaneity," i.e., the statement must evidence the declarant's "then existing state of mind," a circumstance presumed to reduce a declarant's chance for reflection and, therefore, misrepresentation. See United States v. Cardascia, 951 F.2d 474, 487-88 (2d Cir.1991); see also 2 McCormick on Evidence § 274, at 267 (Kenneth S. Broun ed., 6th ed. 2006) ("[T]he special assurance of reliability for statements of present state of mind rests upon their spontaneity and resulting probable sincerity. The guarantee of reliability is assured principally by the requirement that the statements must relate to a condition of mind or emotion existing at the time of the statement." (footnote omitted)).

Contemporaneity, of course, is not a foolproof safeguard of reliability. As commentators have observed, "few things are easier than to misrepresent one's thoughts." 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:70, at 596 (3d ed.2007) (observing that "state-of-mind exception offers less assurance against deception than some others that also require immediacy"). This has prompted a number of courts to condition Rule 803(3) admissibility on the presence of "no suspicious circumstances suggesting a motive for the declarant to fabricate or misrepresent his or her thoughts." 5 Jack B. Weinstein & Margaret A. Berger, [172] Weinstein's Federal Evidence § 803.05[2][a], at 803-31 & n.4 (Joseph M. McLaughlin ed., 2d ed. 2007) (collecting cases); see 4 Mueller & Kirkpatrick, supra, § 8:71, at 613-14 & n.30 (collecting cases); see also 6 John H. Wigmore, Evidence in Trials at Common Law § 1732, at 160 (James H. Chadbourn ed., rev. ed. 1976) (providing for statement of then existing state of mind to be excluded if "circumstances indicate plainly a motive to deceive"). This court, however, is not among them.

In United States v. DiMaria, 727 F.2d 265 (2d Cir.1984) (Friendly, J.), we observed that the Federal Rules of Evidence create hearsay exceptions by "categories," id. at 272. We thus concluded that if a statement fits an identified category, no further "finding of probable credibility by the judge" is generally required to apply the hearsay exception. Id. (recognizing that credibility of statement may be considered in connection with business record and residual hearsay exceptions). Thus, the self-serving nature of a statement expressing a state of mind does not automatically preclude application of Rule 803(3). That concern is properly considered by the jury in deciding what weight to accord the statement. See id. at 271; accord United States v. Cardascia, 951 F.2d at 487.

Although this court does not superimpose any credibility condition on Rule 803(3), we have in no way relaxed the rule's stated requirement for assuring reliability: contemporaneity. Nor have we absolved statements satisfying Rule 803(3) from the relevancy requirements of Fed. R.Evid. 401 and 403. See generally 2 McCormick on Evidence, supra, § 274, at 267-69 n.8 (observing that contemporaneity requirement of Rule 803(3) works together with relevance rules in determining admissibility of statement).

United States v. DiMaria presented no contemporaneity or relevance concerns. The defendant's spontaneous utterance to approaching FBI agents — "I only came here to get some cigarettes real cheap" — easily satisfied Rule 803(3)'s contemporaneity requirement in that it purported to reveal the declarant's then existing state of mind with respect to the very conduct in which he was engaged. 272 F.2d at 270-71. Such a statement was relevant because defendant's mens rea at the precise moment of his utterance was an element of the charged crime. See id. at 271. Further, we assigned a high probative value to the statement because the government was relying on a presumption to carry its mens rea burden. See id. at 272 (observing that admission of statement was particularly warranted because "the Government is relying on the presumption of guilty knowledge arising from a defendant's possession of the fruits of a crime recently after its commission").

DiMaria, however, had no occasion to consider contemporaneity and relevance in the circumstances presented here: a statement of state of mind made on one occasion offered as evidence of state of mind on another occasion. The proffered statement may express the declarant's state of mind at the time made, but that does not make it relevant to mens rea at a different time. The law nevertheless recognizes the possibility that an expression of state of mind on one occasion may be relevant to state of mind at a later time where the statement reflects "a continuous mental process." United States v. Cardascia, 951 F.2d at 488. Such continuity effectively extends the "contemporaneity" of the statement beyond the moment of pronouncement. Cf. id. (recognizing possibility of continuity extending contemporaneity required by Rule 803(3) but not finding principle applicable to statement offered to [173] support backward inference^[1]). For example, experience and common sense indicate that someone who professes to be a baseball fan on Monday is likely to be of the same state of mind on Tuesday. Statements of intent also may reflect a continuing mental process. See 2 McCormick on Evidence, supra, § 274, at 270 (observing that assertion of then-existing intent to go on business trip next day "will be evidence not only of the intention at the time of the statement, but also of the same purpose the next day when the declarant is on the road").

Not all statements describing a declarant's mental state, however, warrant an inference of continuity. Some expressions of emotion last a lifetime, while others may be unlikely to persist long after their triggering events. Some professions of state of mind may be too vague or tenuous to support an inference of continuity, particularly where there is a significant lapse of time between the declaration and the mens rea at issue. Intervening events may also signal a possible change in the declarant's state of mind. This court has thus held that "[w]hether a statement is part of a continuous mental process and therefore admissible under the present state of mind exception" is "a question for the trial court." United States v. Cardascia, 951 F.2d at 488. As with any determination of fact, we will not disturb a trial court's finding as to likely continuity in the absence of clear error. Cf. United States v. Monteleone, 257 F.3d 210, 221 (2d Cir. 2001) (applying clear error review to factual findings underlying trial court's decision to admit statement under Fed.R.Evid. 801(d)(2)(E)); United States v. Gigante, 166 F.3d 75, 82 (2d Cir.1999) (same).

Precisely because a finding of continuity effectively extends the contemporaneity of a statement beyond common understanding — and, therefore, expands the application of Rule 803(3) — the question merits careful judicial attention. Commentators have appropriately suggested that district courts should consider "all the factors on both sides of the equation" in determining the likely continuity of a proffered statement of state of mind, including "the possibility of bad faith" by the declarant. 5 Weinstein & Berger, supra, § 803.05[2][c][i], at 803-36. This is not contrary to DiMaria, which precludes judicial inquiry into the credibility of the expressed state of mind when contemporaneity is not at issue. But where contemporaneity is in question, depending on whether a state of mind expressed on one occasion is likely to have continued through to another time relevant to the case, a district court's consideration of the totality of the circumstances properly includes any indications as to whether the proffered statement was made in good or bad faith. Other factors that may also inform the inquiry include, but are not limited to, what the statement itself actually says about the declarant's state of mind and how clearly, the lapse of time between the statement and the conduct for which mens rea is at issue in the case, and any intervening life events or statements by the declarant signaling a possible break in mental process or change of mind. See generally 4 Mueller & Kirkpatrick, supra, § 8:71, at 604.

With these principles in mind, I identify no error in the exclusion of Sabir's October 5, 2004 statements. As the district court [174] correctly recognized, the vast majority of those statements recounted "things that happened in the past," Trial Tr. at 1343, i.e., "fact[s] remembered," Fed.R.Evid. 803(3), and, thus, fall outside the rule's exception. As for the few statements purporting to express Sabir's then existing state of mind — i.e., his professed appreciation for life in the United States compared to Saudi Arabia, his stated intent to return to live in the United States and to "make things better" in this country, and his observation that he did not condone suicide bombing — I note that Sabir's state of mind on October 5, 2004, the date of declaration, was not really at issue in the case. To be sure, that date fell within the time frame of the charged conspiracy. But conspirators, like other persons, do not pursue their objectives at all times. Certainly, the government did not contend that any of Sabir's actions on October 5, 2004, were in furtherance of the conspiracy. Much less did it rely on those actions in attempting to prove a mens rea element of the crime. Rather, it focused on Sabir's words and actions at the May 20, 2005 meeting with the undercover agent to prove a mens rea intent on supporting terrorism. To the extent Sabir offered his October 5, 2004 statements as evidence of a state of mind not disposed to support al Qaeda, the requirements of contemporaneity and relevance required the district court to decide whether Sabir likely maintained that state of mind through that date.

This conclusion is not at odds with our holding today on Sabir's Rule 801(d)(2)(E) challenge because a trial court's focus in deciding what evidence to admit is different from a jury's focus in deciding the question of guilt. While the trial court was required to find the existence of a conspiracy throughout the period 2003-05 to admit Shah's recorded statements against Sabir under Rule 802(d)(2)(E), it was required to make that finding only by a preponderance. Meanwhile, the jury could not convict Sabir of conspiracy except upon proof beyond a reasonable doubt, but it could make that finding with respect to any time within the charged period. See United States v. Heimann, 705 F.2d 662, 666 (2d Cir.1983) (upholding conviction where conspiracy proved some time within charged period). Thus, where, as in this case, all parties focused on May 20, 2005, as the critical date for determining Sabir's participation in the charged conspiracy and related attempt offense, the trial judge could appropriately consider whether Sabir's earlier professed state of mind likely continued to that date in deciding whether the statement was admissible under Rules 401, 403, and 803(3).

The record not only fails to support such a finding of continuity; it compels a contrary conclusion. As the district court observed, Sabir's October 5, 2004 statements were vague and self-serving, raising legitimate concerns about the likelihood of his maintaining the state of mind they purportedly described into the next year.^[2] [T 1118] Quite apart from these concerns, however, the record provides conclusive proof that Sabir's purported state of mind [175] on October 5, 2004, was not his state of mind on May 20, 2005. That proof is, of course, the tape recording of the May 20 meeting. Far from indicating that Sabir was not inclined to support al Qaeda, the recording showed him swearing fealty to this terrorist organization and promising to support it by serving as an on-call doctor for its wounded combatants in Saudi Arabia. On this record, I think it would be impossible to find that the October 5, 2004 statements expressed a then-existing state of mind that continued through May 20, 2005. In the absence of such continuity, the October 5, 2004 statements failed to satisfy both the contemporaneity requirement of Rule 803(3) and the relevancy requirements of Rules 401 and 403. For these reasons, I think the district court properly excluded the statements from evidence, and I would reject Sabir's Rule 803(3) challenge as without merit.

DEARIE, Chief District Judge, dissenting in part.

I write to voice my strong disagreement with the majority's conclusion that the evidence is legally sufficient to sustain the attempt conviction. I otherwise concur.

This is not an attempt. I agree that application of the familiar "substantial step" formula must be made on a case-by-case basis and that in some cases the adequacy of the proof may not be readily determined, but this is not such a case. I agree that the distinction between various forms of material support may prove meaningful in some cases, but again this is not such a case. Whatever the label, the substantive crime was so remote in time, place and objective that one is left only to speculate as to what, if anything, would have happened had Sabir in fact been in a position to pursue the conspiratorial goal.

Without the benefit of meaningful input from the litigants or trial court, moreover, the majority appears to expand the reach of "personnel"^[1] to include those who do nothing beyond "pledge[] to work under the direction of the organization." Majority Op., ante at [152]. This conclusion is without precedent and hinges upon what is, in my view, a seriously flawed interpretation of the material support statutes.

I.

There is no question that, construed in the government's favor, the evidence supports the conspiracy count. A rational jury could have found that, at the single meeting with his co-conspirator and the undercover agent, Sabir indeed agreed to provide medical support to wounded al Qaeda somewhere in Saudi Arabia at some point in the future. Fairly stated, the majority further concludes that once Sabir offered these services, he took a substantial step toward becoming the organization's "on call" doctor. The remaining evidence to support the attempt conviction is Sabir's swearing an oath to al Qaeda, which the government acknowledges is not a criminal act, and his providing contact numbers, which the decisions of this Circuit confirm is not a substantial step toward the commission of a crime.

The majority is correct that a "substantial-step analysis necessarily begins with a proper understanding of the crime being [176] attempted." Majority Op., ante at [147]. Count Two of the indictment charged Sabir with attempting to provide "material support" to al Qaeda in the form of "personnel, training, and expert advice and assistance, as those terms are defined" in 18 U.S.C. §§ 2339A-B, "to wit ... attempt[ing] to provide medical support to wounded jihadists." (4th Superseding Indictment, 05 cr 673, Dkt. # 89, at 3-4.) The majority, however, does not affirm on the ground that Sabir's actions were an attempt to provide actual medical support to wounded jihadists in Saudi Arabia. Nor could it, in light of this Circuit's established precedent, discussed below. Rather, the majority focuses elsewhere, concluding that "[w]hether or not Sabir's May 20, 2005 actions were a substantial step in the provision of expert medical services to terrorists," Sabir's actions on this date "were a substantial step in the provision of Sabir himself as personnel." Majority Op., ante at [151] (emphasis supplied).

The rule is clear enough "that we may affirm on any grounds for which there is a record sufficient to permit conclusions of law." Chesley v. Union Carbide Corp., 927 F.2d 60, 68 (2d Cir.1991) (internal quotation marks omitted). There is no dispute that the evidence is sufficient to establish the element of intent, leaving only the import of Sabir's conduct to be determined. The majority concludes that a reasonable juror could find, based on the evidence, that Sabir took a substantial step toward providing himself as personnel. Going further, the majority suggests that Sabir's conduct would have sufficed to provide himself as personnel had circumstances been as he believed, a novel question that the litigants never expressly considered, much less briefed.^[2] I address these matters in turn.

II.

The issue before us is whether Sabir's meeting with an undercover agent in the Bronx, "swearing an oath of allegiance to al Qaeda" and "providing ... contact numbers for al Qaeda members to reach him in Saudi Arabia" constitute a substantial step toward his providing personnel (i.e., himself) to work under al Qaeda's direction and control. Majority Op., ante at [150]. Although "substantial step" analysis is often "fraught with difficulty," United States v. Ivic, 700 F.2d 51, 66 (2d Cir.1983), in this case, the question is straightforward and readily answered in the negative.

I find no case, in any court, that even remotely supports the majority's conclusion that a defendant attempts a crime simply by agreeing to commit the crime and providing a phone number. Nor does the government, in its single-paragraph ipse dixit defense of the conviction, offer any authority to support its position. The majority opinion cites established precedents that recite the recognized law of attempt, but none of these cases, regardless of outcome, justifies the majority's position. Quite the contrary.

[177] First, the cases routinely hold that mere preparation is not an attempt. See, e.g., United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980) ("A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime."). As the majority notes, a substantial step must be part of "`a course of conduct planned to culminate in [the] commission of the crime.'" Ivic, 700 F.2d at 66 (quoting Model Penal Code § 5.01(1)(c)). It is the conduct that is dispositive. Here, however, there was little to none. There was just talk that was, for the most part, prompted by the undercover agent. There is no evidence of any activity whatsoever that might indicate that Sabir had indeed embarked upon a determined path to proximate criminality in providing material support.

Second, in the cases in which this Circuit has sustained a finding of attempt, "`the accused's conduct ha[d] progressed sufficiently to minimize the risk of an unfair conviction.'" Manley, 632 F.2d at 988 ("`[A]n attempt is necessarily predictive....'") (quoting United States v. Busic, 549 F.2d 252, 257 n. 9 (2d Cir. 1977)). For example, in United States v. Stallworth, 543 F.2d 1038, 1041 (2d Cir. 1976), the case in which we adopted the substantial step formulation of the Model Penal Code, we found evidence of a substantial step toward robbery because the defendants cased the target bank, discussed their plan of attack, armed themselves, stole ski masks and surgical gloves, and actually moved toward the bank to commit the crime. We held that "[a]ll that stood between appellants and success was a group of F.B.I. agents and police officers" whose timely intervention "probably prevented not only a robbery but possible bloodshed." Id. at 1041. Likewise, in Manley, 632 F.2d at 988, we held that the defendant took a substantial step toward purchasing drugs because he drove to an acquaintance's home late at night with a large amount of cash that was roughly equivalent to the value of the cocaine found at the house. In affirming that conviction, we aptly observed that "it is hard to conceive of any additional preliminary steps which [the defendant] could have taken short of the actual acquisition of the narcotics." Id. at 989. And in United States v. Crowley, 318 F.3d 401, 408 (2d Cir.2003), we found sufficient evidence of an attempt to commit a sexual act by force after the defendant pinned his victim to the bed, put his hand in her shorts and sought to penetrate her with his fingers. By comparison, the meager evidence of any action by Sabir to further the criminal objective falls far short of a substantial step.

The majority also relies on Ivic, 700 F.2d at 67, a case that explores the outer boundaries of what actions constitute a substantial step. In that case, having already acquired explosives and devised a plan of attack, one defendant authorized the bombing of a travel agency and the other reconnoitered the site. Judge Friendly found that the evidence of attempt was "sufficient, although barely so." Id. (emphasis supplied). If casing the location and stockpiling explosives is "barely" an attempt, how can Sabir's limited conduct possibly be?

The principal case the majority invokes, United States v. Delvecchio, 816 F.2d 859, 861-62 (2d Cir.1987), compels the conclusion that no attempt occurred here. The majority correctly cites this decision as "hold[ing] that evidence of a verbal agreement alone, without more, is insufficient as a matter of law to support an attempt conviction," id. at 862, but finds that "by promising to be on call in Saudi Arabia to treat wounded al Qaeda members[] and by providing private and work contact numbers," [178] Majority Op., ante at [145], Sabir engaged in a substantial step sufficient to sustain a conviction for attempting to provide himself as personnel. Closer attention to Delvecchio's facts illuminates the flaw in the majority's reasoning.

In Delvecchio, we found the evidence of an attempt to purchase drugs insufficient even though Delvecchio and his partner had sought out suppliers, actually an undercover agent and an informant, then agreed to buy five kilograms of heroin from them at 10:00 pm the following evening for $195,000 per kilogram on a specific street corner in Manhattan. At one of two dinner meetings, the Delvecchio defendants, like Sabir, gave their contact numbers to the agent and informant. Id. at 861. Without hesitation, however, we concluded that the defendants had not attempted to purchase the narcotics, because their "plan to possess heroin had only advanced to the stage of meeting with their purported suppliers to work out the terms of the deal." Id. at 862 ("[E]vidence of a verbal agreement alone, without more, is insufficient as a matter of law to support an attempt conviction."). The government failed to show that the defendants "performed any overt act to carry out the agreed upon" transaction; the defendants had not, for example, "set out for the meeting site" or "attempted to acquire the almost one million dollars necessary to complete the purchase." Id. We upheld the defendants' conspiracy convictions alone.

It cannot seriously be disputed that the Delvecchio defendants' actions, like those of the defendants in every case mentioned above, were far closer to an attempt at the respective crime than were Sabir's. The Delvecchio defendants worked out every aspect of an imminent drug deal. Sabir, by contrast, viewing the facts in the government's favor, agreed to be "on call" as a doctor halfway around the world under unspecified conditions at some indefinite time in the future. Sabir never had the chance to demonstrate whether his actions would have been consistent with his conspiratorial pledge. Indeed, Sabir and the undercover did not even "work out the terms of the deal." Id. at 862.

Before Sabir could have placed himself under al Qaeda's direction or control, moreover, he needed to return to Riyadh. He "[a]ssum[ed] that" he could "get back," which required locating or replacing his passport and enlisting the aid of the consulate. GX 906T at 14. In addition to these administrative hurdles, Sabir had to overcome restrictions on his mobility and find a place in which to treat wounded mujahideen. Sabir told the undercover that he was being forced to live on hospital grounds, id. at 66-70, agreed that he could not treat wounded jihadists at the hospital, id., doubted his ability to leave the confines of his hospital "without people watching [his] every movement," id. at 70-71, and volunteered that he had no means of transportation, id. at 16.^[3] The Delvecchio defendants, in stark contrast, completed all such preliminary arrangements, but even then the panel readily concluded that no attempt had occurred. 816 F.2d at 862.

The majority purports to distinguish Delvecchio in a number of ways. Initially, the majority notes that "[w]hereas an attempt to possess focuses on a defendant's efforts to acquire, an attempt to provide [179] focuses on his efforts to supply, a distinction that necessarily informs" the attempt analysis. Majority Op., ante at [147]. This distinction is not meaningful. To demonstrate, suppose that the Delvecchio defendants' convictions were based upon an agreed-upon supply of drugs to an undercover agent, rather than an acquisition from the agent. In such a case, would a verbal agreement plus a contact number equal an attempt? We held otherwise in United States v. Rosa, 11 F.3d 315, 339-40 (2d Cir.1993). Because the Rosa defendant "did not produce any heroin for the proposed sale," nor had he "made any effort to obtain heroin ... in order to sell it to" the agent, we once again held the evidence insufficient to sustain an attempt conviction. Id. at 340-41. Rosa illustrates that, whether acquiring or providing, a defendant who follows an agreement with inactivity while the criminal objective remains beyond reach cannot be guilty of an attempt. See Rosa, 11 F.3d at 340 (emphasizing the defendant's statement that his own supplier "might be in jail"). In either case, the pivotal issue is proximity — in time, place or readiness — to commission of the charged offense.

To support its conclusion, the majority poses the hypothetical situation in which we are to assume that Sabir is not a doctor but rather an al Qaeda recruiter who recruits doctors like Sabir. The majority is correct that, under those circumstances, the recruiter could be found guilty of attempting to provide personnel. Such conduct, which could be accomplished locally, would be real, measurable and meaningful. See Stallworth, 543 F.2d at 1040 n. 5 (noting that "`soliciting an innocent agent to engage in conduct constituting an element of the crime'" may be a substantial step sufficient to uphold an attempt conviction) (quoting Model Penal Code 5.01(2)(g)). Simply stated, the recruiter in the hypothetical has done something. He has provided a service to the organization. His culpability is not a matter of conjecture. Cf. United States v. Awan, 384 Fed.Appx. 9, 13 (2d Cir.2010) (affirming conviction for conspiracy to provide personnel where testimony and recorded conversations "provided sufficient evidence from which a rational jury could find that [the defendant] was recruiting for" a foreign terrorist organization). By attending a meeting and volunteering his services, the actual Sabir, unlike the hypothetical recruiter, has done nothing more than reiterate agreement.^[4]

Finally, and most importantly, the majority proposes that Sabir went beyond attending a meeting and agreeing to serve: he "took a step essential to provide al Qaeda with personnel in the form of an on-call doctor" by "provid[ing] the means by which mujahideen in Riyadh could reach that doctor at any time." Majority Op., ante at [150]. This observation might have some significance if Sabir's "enlistment" came at or near some jihadist camp or battleground, and he was situated, equipped and ready to assist; but the location in question was almost 7,000 miles away, and no preparations to be "on call" had been made or even discussed,^[5] leaving [180] the actual provision of material support entirely a matter of speculation and surmise. If, to borrow the majority's phrase, "a step essential" to sustain an attempt conviction were provision of a contact number for resultant transactions, then Delvecchio must have been wrongly decided. Drawing all conceivable inferences in favor of the government, there is simply no way to square these facts with the cases cited and conclude that an attempt has been established.

III.

Just as troubling as the majority's "substantial step" analysis is its suggestion that a person actually completes the crime of providing "material support in the form of personnel as soon as he pledges to work under the direction of the organization."^[6] Majority Op., ante at [182]. In so suggesting, the majority enters largely untested statutory waters.

The few courts to rule on sufficiency challenges relating to the term "personnel" — or even to construe the term — have required a level of engagement, activity or compliance far surpassing Sabir's someday, someplace commitment here.^[7]Compare United States v. Abu-Jihaad, 600 F.Supp.2d 362, 401 (D.Conn.2009) (communicating sensitive defense information to terrorist organization on single occasion [181] was insufficient evidence of providing self as "personnel," without evidence that the organization requested such information pursuant to a prior "arrangement[]" and that the defendant "did as requested"), aff'd on other grounds, 630 F.3d 102 (2d Cir.2010); United States v. Warsame, 537 F.Supp.2d 1005, 1018 (D.Minn.2008) (contacting overseas al Qaeda associates while in North America, without more, "would be inadmissible as evidence of guilt [absent] additional conduct that would constitute provision of `personnel'") with United States v. Taleb-Jedi, 566 F.Supp.2d 157 (E.D.N.Y.2008) (teaching language classes, translating documents and working in organization's political division at Iraqi base potentially equaled providing self as "personnel"); United States v. Lindh, 212 F.Supp.2d 541, 580 (E.D.Va.2002) (training with and fighting alongside terrorist groups in Afghanistan potentially equaled providing self as "personnel"); United States v. Goba, 220 F.Supp.2d 182, 193-94 (W.D.N.Y.2002) (attending al Qaeda training camp for five weeks potentially equaled providing selves as "personnel"); cf. United States v. Stewart, 590 F.3d 93, 115 (2d Cir.2009) (relaying repeated messages to and from imprisoned terrorist regarding ongoing conspiracy was "`active participation'" that equaled providing prisoner as "personnel"); Awan, 384 Fed.Appx. at 17 (soliciting another "for training and carrying out attacks in India on behalf of" terrorist organization equaled conspiring to provide recruit as "personnel"); United States v. Marzook, 383 F.Supp.2d 1056, 1065 (N.D.Ill.2005) (recruiting another "to join Hamas and make trips to the Middle East" to scout attack locations potentially equaled providing recruit as "personnel").

These courts consistently distinguish between activity and passivity, in each case criminalizing the former and not the latter. The majority states that "it may frequently be the case that a defendant who intends to provide a terrorist organization with personnel also intends for the personnel to provide the organization with services." Majority Op., ante at [150]. That, I submit, is an understatement. To suggest that Sabir became al Qaeda's doctor in Riyadh after the May 2005 meeting in the Bronx, thus facilitating more dangerous missions, requires logical leaps that the record below simply will not bear.^[8] To serve the statute's objectives without overreaching, some post-agreement activity must be shown to establish an attempt to provide oneself as personnel.

Further, by transforming offers to provide services into attempted provision of personnel, the majority's holding may sanction multiple punishments for a single offense.^[9] An attempt requires a substantial [182] step toward criminality; a conspiracy requires agreement with another wrongdoer. On these facts, however, the majority substitutes evidence of agreement and intent for evidence of the substantive crime. See, e.g., United States v. Gore, 154 F.3d 34, 46 (2d Cir.1998) (disallowing multiple sentences for violations of a single statute where, given the "narrow set of facts" presented, "no longer does each offense require proof of a fact that the other does not"). As the majority concludes, at the May 2005 meeting, Sabir "formalize[d] his promise" to work for al Qaeda. Majority Op., ante at [150-51]. Thus, it is hard to see how the conspiracy and attempt convictions meaningfully differ. See Iannelli v. United States, 420 U.S. 770, 785-86 & n. 18, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (reaffirming that "the real problem" in such cases "is the avoidance of dual punishment").

Conspiracy charges unaccompanied by a completed substantive crime are relatively rare, and can be troubling when the available evidence leaves one to speculate whether the criminal objective would have been realized. In this case, such concern is compounded by the need to find the line between radical beliefs and radical action.^[10] The law of attempt has evolved to take the guesswork out of finding that line. At the one meeting Sabir attended, he indeed chanted the mantra of the terrorist, led by the government agent and inspired by his co-defendant. But we are left to wonder whether his apparent enthusiasm would have, or even could have, led to action on his part. That should not be, and no imaginable view of the evidence removes this uncertainty.

This Court observed in Crowley that "[t]he problem faced by the drafters [of the Model Penal Code] was that to punish as an attempt every act done to further a criminal purpose, no matter how remote from accomplishing harm, risks punishing individuals for their thoughts alone, before they have committed any act that is dangerous or harmful." 318 F.3d at 408. I submit that the majority has done just that by abandoning the notion, fundamental to attempt jurisprudence, that we punish criminal deeds and not thoughts or intentions. The majority declares, however, that the crime at issue "is of a quite different sort." Majority Op., ante at [147]. Whatever the "sort" of offense, Sabir was not charged with mere membership in al Qaeda or for being sympathetic to some radical Islamic cause. Signing on to the al Qaeda roster of loyalists (as reprehensible as that may be) is not, and could not be, the crime at issue, since "Section 2339B does not criminalize mere membership in a designated foreign terrorist organization. It instead prohibits providing `material support' to such a group." Humanitarian Law, 130 S.Ct. at 2718; see also id. at 2730 [183] ("[T]he statute does not penalize mere association with a foreign terrorist organization."); 18 U.S.C. § 2339B(i) ("Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.").

The majority asserts that "a reasonable jury could have concluded that," based on his May 20, 2005 actions, "Sabir crossed the line from simply professing radical beliefs or joining a radical organization to attempting [the] crime" of providing himself to work under al Qaeda's control. Majority Op., ante at [151]. The only evidence tending to show such control is the oath. But the litigants, and presumably the majority, agree that the oath alone is not a basis for imprisonment.^[11] At best, the oath reflects an agreement and intention to follow directions, but "mere intention to commit a specified crime does not amount to an attempt." Manley, 632 F.2d at 988 (internal quotation marks omitted). Despite the majority's apparent preoccupation with Sabir's state of mind, the independent evidence of attempt in this case remains a pair of phone numbers. Those evidentiary morsels cannot sustain the substantive conviction.

As recent history tragically illustrates, provision of material support of any form to a terrorist organization emboldens that organization and increases the likelihood of future terrorist attacks. That is why Congress enacted statutes criminalizing such activity. Simply stated, however, the majority has at once unwisely re-written the law of attempt, raised freedom-of-association concerns and possibly treaded on double jeopardy protection, "opening the door to mischievous abuse." United States v. Johnpoll, 739 F.2d 702, 715 (2d Cir.1984). Regardless of Sabir's inclination, as a matter of law, any step he took toward that end was insubstantial and any support he furnished unquestionably immaterial.

In the end, a man stands guilty, and severely punished, for an offense that he did not commit. Therefore, I respectfully dissent.

[1] Chief District Judge Raymond J. Dearie of the Eastern District of New York, sitting by designation.

[2] In a separate order issued today, we dismiss the appeal of Sabir's co-defendant Abdulrahman Farhane.

[3] Trial evidence indicated that beginning in the mid-1990s, Shah in fact taught martial arts classes at numerous locations, including two mosques in suburban Maryland and another two in upstate New York, as well as at his own martial arts school in New York City. Participants in these classes testified that Shah taught them the use of deadly weapons and lethal fighting techniques, while exhorting them to embrace jihad.

[4] Al Qaeda is the most notorious terrorist group presently pursuing jihad against the United States. In February 1998, its leaders, including Osama bin Laden and Ayman al Zawahiri, issued an infamous fatwa (religious decree) pronouncing it the individual duty of every Muslim to kill Americans and their allies — whether civilian or military — in any country where that could be done. For a detailed discussion of this fatwa and al Qaeda's terrorist activities up to 2004 — including the 1998 bombings of American embassies in Kenya and Tanzania, which killed 224 people; the October 2000 bombing of the USS Cole, which took 17 lives; and the September 11, 2001 airplane attacks on the World Trade Center and the Pentagon, which killed 2,973 persons — see The National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004). See also United States v. Moussaoui, 591 F.3d 263, 273-74 (4th Cir.2010); In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 103-05 (2d Cir.2008).

[5] Shah and Sabir were not named in Counts Three and Four of the indictment, charging Mahmud Faruq Brent with conspiring to provide and providing material support in the form of personnel to the terrorist organization Lashkar-e-Taiba. See Indictment ¶¶ 3-4. We do not discuss these charges further in this opinion.

[6] Section 2339B, entitled "Providing material support or resources to designated foreign terrorist organizations" was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, § 303(a), 110 Stat. 1214, 1250 (1996), to supplement 18 U.S.C. § 2339A, entitled "Providing material support to terrorists," which was enacted two years earlier as part of the Violent Crime Control and Law Enforcement Act, Pub. L. No. 103-322, § 12005(a), 108 Stat. 1796, 2022 (1994). These statutory provisions have been substantively amended twice: first, in response to al Qaeda's September 11, 2001 attacks on the United States, by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ("USA PATRIOT Act"), Pub. L. No. 107-56, § 810(d), 115 Stat. 272, 380 (2001); and second, by the Intelligence Reform and Terrorism Prevention Act ("IRTPA"), Pub. L. No. 108-458, § 6603(c), 118 Stat. 3638, 3762-63 (2004). As Sabir stands convicted under the latest iteration of the statute, we cite thereto in this opinion.

[7] Al Qaeda's designation as a terrorist organization pursuant to Section 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189, is undisputed. See 64 Fed. Reg. 55,112 (1999); 66 Fed. Reg. 51,088 (2001); 68 Fed. Reg. 56,860 (2003). The United States' response to al Qaeda has not, however, been limited to such designation. Two successive administrations have indicated that the nation is at "war" with al Qaeda. See Press Release of Remarks by President Obama on Strengthening Intelligence and Aviation Security, Jan. 7, 2010 ("We are at war. We are at war against al Qaeda, a far-reaching network of violence and hatred that attacked us on 9/11, that killed nearly 3,000 innocent people, and that is plotting to strike us again. And we will do whatever it takes to defeat them."); Eric Lichtblau, Bush Seeks to Affirm a Continuing War on Terror, N.Y. Times, Aug. 30, 2008, at A10 (quoting administration proposal that Congress "acknowledge again and explicitly that this nation remains engaged in an armed conflict with Al Qaeda ... and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans"). The executive locates support for its actions in Congress's September 18, 2001 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). See, e.g., Harold Hongju Koh, Legal Adviser, U.S. Department of State, Address to the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010), available at http://www.state. gov/s/l/releases/remarks/139119.htm (explaining that in light of al Qaeda's "horrific" attacks on the United States, the United States is "in an armed conflict with al Qaeda" that is justified by both international and domestic law).

[8] Title 18 U.S.C. § 2339B(i), added by IRTPA, precludes any construction or application of § 2339B that abridges the exercise of First Amendment rights. This necessarily extends to those parts of § 2339A incorporated into § 2339B, such as these definitions.

[9] In Holder v. Humanitarian Law Project, the Supreme Court expressed a preference for as-applied review even where First Amendment rights are implicated. See 130 S.Ct. at 2719.

[10] City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (declaring local loitering ordinance unconstitutionally vague on its face), cited by Sabir, warrants no different approach to his facial vagueness claim. Morales is distinguishable from this case in that the ordinance there at issue (1) reached a substantial amount of innocent conduct, (2) lacked a mens rea requirement to mitigate overbreadth concerns, and (3) had been interpreted by the state supreme court in a way that precluded the Supreme Court from adopting a narrow construction avoiding constitutional concerns. See id. at 60-64, 119 S.Ct. 1849; see also United States v. Rybicki, 354 F.3d at 150-52 (Raggi, J., concurring) (discussing circumstances in Morales that precluded Hoffman Estates/Salerno analysis). Because none of these concerns is here present, we rely on traditional as-applied review in considering Sabir's vagueness challenge.

[11] This definition for the term "expert advice or assistance" is familiar from Fed.R.Evid. 702, governing expert witnesses.

[12] In this context, the word "preparation" obviously means "a substance specially prepared, or made up for its appropriate use or application, e.g. as food or medicine," not "the action of preparing." 12 Oxford English Dictionary 374 (2d ed. 1989).

[13] The intent required to prove attempted material support for a foreign terrorist organization should not be confused with an intent to further terrorism. Just as that latter intent is not required to prove an actual § 2339B violation, see Holder v. Humanitarian Law Project, 130 S.Ct. at 2717 ("Congress plainly spoke to the necessary mental state for a violation of § 2339B, and it chose knowledge about the organization's connection to terrorism, not specific intent to further the organization's terrorist activities."), it is not required to prove a conspiracy or attempt to violate that statute. Nevertheless, in this case, much of the evidence proving Sabir's intent to provide material support also indicates his intent to further terrorism.

[14] Evidence of terrorist efforts to recruit doctors was adduced at trial in United States v. Abu-Jihaad, 630 F.3d 102, 109 (2d Cir.2010) (describing website post soliciting persons to provide "battlefield medical services" in Afghanistan (internal quotation marks omitted)).

[15] Sabir had earlier provided Soufan with a contact number in response to the undercover agent's offer of assistance with "anything" Sabir might "need" in Saudi Arabia. GX 906T at 40. In extending this offer, the undercover made clear that such assistance would come from mujahideen: "[W]e have a lot of brothers, thank God, mujahideen.... [T]hey will uh be very happy to assist another brother.... [T]hey still work in their jobs with the government ... but uh their hearts and minds are on the right track." Id. at 15 (italics in transcript reflect translation from Arabic to English). Without prompting, Sabir stated, "I would like to meet them," proposing an exchange of contact numbers: "Even if you just give me one person that I can contact over there, but I can give you my, my mobile phone over there, the number I can give." Id. at 40.

[16] In Ivic, the court upheld convictions for attempting to bomb two locations, observing that defendants' inspection of one bombing site, construction of a fully operational bomb, and transportation of the bomb to the vicinity of the target site satisfied even the common law standard of attempt, while defendants' discussion and authorization of the second bombing, examination of the target site, and possession of explosives satisfied the Model Code standard, albeit barely. See United States v. Ivic, 700 F.2d at 67.

[17] With respect to "personnel," Sabir and Shah were alleged to have

knowingly provided, and attempted to provide, (i) one or more individuals (including themselves) to work under al Qaeda's direction and control and to organize, manage, supervise, and otherwise direct the operation of al Qaeda.

Indictment ¶ 2. With respect to "training," Sabir and Shah were alleged to have

knowingly provided, and attempted to provide,... (ii) instruction and teaching designed to impart a special skill to further the illegal objectives of al Qaeda.

Id. With respect to "expert advice and assistance," Sabir and Shah were alleged to have

knowingly provided, and attempted to provide,... (iii) advice and assistance derived from scientific, technical, and other specialized knowledge to further the illegal objectives of al Qaeda, to wit, [Shah] provided and attempted to provide martial arts training and instruction for jihadists, and [Sabir] provided and attempted to provide medical support to wounded jihadists knowing that al Qaeda has engaged and engages in terrorist activity ... and that al Qaeda has engaged and engages in terrorism.

Id.

While our dissenting colleague submits that the government consistently focused on the last form of material support charged, see Dissenting Op., post at [176 n.2], we do not understand it to have abandoned the first two. Quite the contrary, the government referenced personnel in summation, arguing that Sabir "tried to put himself in al Qaeda's back pocket when he gave [the undercover] his phone numbers." Trial Tr. at 2374 (explaining further that al Qaeda benefitted by thus acquiring "an asset that it didn't have before... the telephone number of a doctor ... willing and able to come to [its] aid 24 hours a day"). Moreover, the district court charged the jury as to each of the three forms of material support alleged in the indictment and their distinct meanings, and further instructed that proof beyond a reasonable doubt of an attempt to provide material support in any of these forms was sufficient to support a guilty verdict. See id. at 2586-87. 

[18] In light of this conclusion, we need not discuss the sufficiency of the evidence to support Sabir's Count Two conviction on any other theory. Specifically, we need not consider the government's argument that Sabir was guilty of aiding and abetting Shah's attempt to provide material support to al Qaeda in the form of martial arts training. See Griffin v. United States, 502 U.S. 46, 56-60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).

[19] Judge Raggi is of the view that, if the circumstances on May 20, 2005, had been as Sabir believed, i.e., if Agent Soufan had been a member of al Qaeda, the evidence was otherwise sufficient to support a finding that Sabir actually provided, and not simply attempted to provide, himself as personnel to work under the direction of that terrorist organization. The court does not rule on that question as our rejection of Sabir's sufficiency challenge to attempt supports affirmance of his conviction.

[20] Before Sabir took the oath, Agent Soufan had explained that Osama bin Laden and Ayman Zawahiri required a pledge from all persons proposing to work for al Qaeda to ensure that the persons "won't be acting on their own," but following leadership direction. GX 906T at 97-98 (explaining that everything within al Qaeda was "very, very controlled," but emphasizing that "nobody is forced" to take the oath; "there is no coercion in religion").

[21] Section 2339A(b)(1) broadly defines "material support or resources" to mean "any property, tangible or intangible, or service," of which "personnel" and "expert advice or assistance," are examples. See supra at [134-35].

[22] Of course, Sabir could not conspire with the undercover agent. Sabir's conspiracy conviction in this case is supported by his agreement with co-defendant Shah, an agreement reached even before the May 20, 2005 meeting.

[23] The fact that the dictionary defines "personnel" by reference to a "body of people," see Dissenting Op., post at [180 n. 7] (quoting Oxford English Dictionary), is of no import here where the relevant statutes, 18 U.S.C. §§ 2339A(b)(1), 2339B, state that "personnel" means "1 or more individuals who may be or include oneself," see, e.g., Colautti v. Franklin, 439 U.S. 379, 392 n. 10, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (referencing rule of construction that statutory definition controls meaning of terms).

[24] Many of the district court cases cited by the dissent treat direction and control, not a particular level of activity, as the critical fact in assessing a provision of personnel charge. See, e.g., United States v. Taleb-Jedi, 566 F.Supp.2d 157, 176 (E.D.N.Y.2008) (rejecting defendant's First Amendment challenge to proscription on providing personnel, observing that statute prohibits person from working under "terrorist organization's direction or control" no matter how benign the work); United States v. Lindh, 212 F.Supp.2d 541, 573 (E.D.Va.2002) (holding that provision of personnel requires proof of more than defendant's "mere presence" among members of terrorist organization: "`Personnel' refers to individuals who function as employees or quasi-employees — those who serve under the foreign entity's direction or control."); see also United States v. Abu-Jihaad, 600 F.Supp.2d 362, 401 (D.Conn.2009) (holding that defendants transmittal of national defense information to publisher linked to al Qaeda was insufficient to prove defendant's provision of himself as personnel in absence of evidence as to whether information was provided in response to publisher's request — which would permit finding that defendant had provided himself as personnel — or on defendant's whim — which would not), aff'd on other grounds, 630 F.3d at 144; United States v. Warsame, 537 F.Supp.2d 1005, 1018 (D.Minn.2008) (holding that defendant's participation in an al Qaeda training camp — a circumstance where control could easily be inferred — sufficed to demonstrate provision of himself as personnel, but mere communications with al Qaeda associates after return to Canada — a circumstance where control was not apparent — could not).

[25] In raising this concern, our dissenting colleague submits that "[c]onspiracy charges unaccompanied by a completed substantive crime are relatively rare, and can be troubling when the available evidence leaves one to speculate whether the criminal objective would have been realized." Dissenting Op., post at [182]. We take exception to this broad generalization. A sufficiency challenge to a conspiracy conviction, whether standing alone or together with a substantive count, requires a review of the evidence in that particular case. Here, Chief Judge Dearie joins the panel in unanimously affirming Sabir's conspiracy conviction.

[26] Although Sabir's attorney urged the district court to impose concurrent sentences, arguing that the conspiracy and substantive charges against him "are actually encompassed in the same conduct," Sentencing Tr., Nov. 28, 2007, at 13-14, this is not a double jeopardy claim, see United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (reversing Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)).

[27] The dissent submits that Sabir "chanted the mantra of a terrorist" because he was "led by the government agent and inspired by his co-defendant." Dissenting Op., post at [182]. What it fails to report is that before Sabir swore bayat, he detailed his understanding of the oath's "deepest significance," GX 906T at 112-13 (discussing historical origin of oath, which Sabir explained "formed a trust" that could not be achieved in any "other way ... because you cannot be complete without it").

[28] Four of the twelve jurors who deliberated in Sabir's case were African Americans. Of those four, one was excused before verdict. See Fed.R.Crim.P. 23(b).

[29] Because Sabir does not specifically challenge the district court's rejection of his Batson argument with respect to the two other African Americans excused by the prosecution — prospective jurors # 14 and # 49 — we deem the point abandoned. See United States v. Draper, 553 F.3d 174, 179 n. 2 (2d Cir. 2009). We nevertheless note that the record does not support any such challenge. The district court expressly found that the prosecution was credibly concerned about these prospective jurors' initially expressed reservations about certain investigative techniques that were used to gather evidence in the case, i.e., wiretapping (prospective juror # 14) and the use of confidential informants (prospective juror # 49). Such a credibility finding is entitled to considerable deference on appeal. See United States v. Lee, 549 F.3d at 94. As the district court correctly observed, the jurors' professed willingness to put their reservations aside meant only that the prosecution could not secure their removal for cause, not that it could not retain a credibly race-neutral concern supporting the exercise of a non-discriminatory peremptory challenge. Further, with respect to the prosecution's stated concern about prospective juror # 49's difficulty of comprehension, the court's acknowledgment that it had itself observed the difficulty supports its finding that this too was a credible race-neutral reason for excusing the juror.

[30] "CSI: Crime Scene Investigation," along with "CSI: Miami" and "CSI: NY," are a trio of popular television series about fictitious teams of forensic investigators who solve crimes by applying science and technology to the review of physical evidence. See "CSI: Crime Scene Investigation," http:// www.cbs.com/primetime/csi/.

[31] Because Sabir challenges the prosecution's professed concern about prospective juror # 26's possible link to a person from Yemen only on pretext grounds (based on dissimilar treatment of another juror), and because other concerns about # 26 defeat the pretext claim, we need not here decide under what circumstances a prospective juror's association with a person of a particular nationality may warrant further inquiry to ensure impartiality. See generally United States v. Douglas, 525 F.3d at 241 (noting that "this Court has not decided the issue of whether national origin is a cognizable classification for Batson protection" (internal quotation marks omitted)); cf. United States v. Stewart, 65 F.3d 918, 925 (11th Cir.1995) (including "subject matter of case being tried" among "relevant circumstances" appropriate for consideration in evaluating Batson challenge).

[32] Kohlmann has, in fact, been qualified as an expert on al Qaeda and terrorism in a number of federal prosecutions. See, e.g., United States v. Benkahla, 530 F.3d 300, 309 n. 2 (4th Cir.2008); United States v. Aref, 285 Fed.Appx. 784, 792 (2d Cir.2008); United States v. Abu-Jihaad, 600 F.Supp.2d 362, 366 (D.Conn.2009); United States v. Kassir, No. 04 Cr. 356(JPK), 2009 WL 910767, at *7 (S.D.N.Y. Apr. 2, 2009).

[33] To the extent Sabir challenges Kohlmann's testimony about al Qaeda's terrorist activities in Saudi Arabia on the ground that the government offered no evidence of Sabir's specific awareness of these activities, the argument bears more on the comparative relevance/prejudice inquiry identified in Rule 403 than on the requirements stated in Rule 702. We discuss the relevancy of this part of Kohlmann's testimony infra at Part II.D.1.c.

[34] While Sabir only references Shah's recorded conversations with the informant in mounting this challenge, we understand the argument also to reach Shah's recorded conversations with the undercover agent.

[35] Where statements are made in the course of an existing conspiracy in which the defendant later joins, those statements may be admitted against him, even though he was not a member of the conspiracy at the time the statements were made, on the theory that he "assumes the risk for what has already happened" in the scheme. 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 801.34[4][a], at 801-84 (Joseph M. McLaughlin ed., 2d ed. 2007) ("Statements made before a conspiracy was actually formed fall outside the realm of Rule 801(d)(2)(E)."); see also United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.1986) (holding that statements of co-conspirators were admissible against defendant under Rule 801(d)(2)(E), "even if made before he joined the conspiracy").

[36] Elsewhere in the May 20, 2005 conversation, Sabir revealed how the men reached this agreement to support terrorism in the late 1990s. Sabir explained that he and Shah had originally planned to travel to Afghanistan to assist the mujahideen. See GX 906T at 17 ("That was an aspiration, that was a hope, a dream that we had to go move to the mountains."). This statement comported with Shah's earlier remark to Agent Soufan that, as early as 1998, the two men had "really wanted to get over to Afghanistan," where they wanted to "be right in it." GX 902T at 5. Sabir explained that he "never ... made... any definite move" with respect to Afghanistan because he "did not see a clear way" to provide assistance. GX 906T at 17-18. Sabir stated that it was in the late 1990s, when the men were experiencing problems at a Bronx mosque, that they recognized the advantage of "people working within their expertise" in aid of jihad. Id. at 65.

[37] Richardson made no in-court identification of Sabir as the person to whom he was introduced.

[38] No selective prosecution motion was ever filed in this case. In an extended colloquy prior to the defense summation, the district court had already cautioned counsel about the impropriety of arguments insinuating that Sabir had been improperly targeted for prosecution, particularly in light of the fact that investigating agents had no knowledge of Sabir until he was introduced into the case by co-defendant Shah, and given that the defense had withdrawn any claim of entrapment.

[1] Backward looking inferences generally run afoul of Rule 803(3)'s express exclusion of "statement[s] of memory or belief to prove the fact remembered or believed." See also 4 Mueller & Kirkpatrick, supra, § 8:71, at 603-06 (discussing issues associated with drawing forward and backward inferences as to mens rea from statement made at time distinct from that at which conduct at issue occurred).

[2] The district court alluded to the self-serving nature of Sabir's October 5, 2004 statements not only in refusing to admit those statements under Rule 803(3), but also in rejecting Sabir's argument that the statements were admissible under Rule 801(d)(1)(B) to rebut a charge of recent fabrication in his trial testimony. [T 1630-35] See United States v. AlMoayad, 545 F.3d at 167 (explaining that "Rule 801(d)(1)(B) ... includes a fundamental temporal requirement: `The statement must have been made before the declarant developed [an] alleged motive to fabricate.'" (quoting United States v. Forrester, 60 F.3d 52, 64 (2d Cir.1995))). I note that Sabir does not challenge the district court's 801(d)(1) ruling on appeal.

[1] Title 18 U.S.C. § 2339B(h) disallows prosecution "in connection with the term `personnel' unless [a] person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control." As we reaffirm in response to Sabir's challenge, this "limiting definition ... answers [any] vagueness concerns," rendering the provision constitutional. Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2721, 177 L.Ed.2d 355 (2010).

[2] During and after trial, the government advanced the view that the attempt count in this case regards actual medical support. See Gov't Summation, 5/15/07 Trial Tr., 05 cr 673, at 2373-74 ("How did Rafiq Sabir try to provide material support? In this case, his expert advice and assistance in the form of his medical skills."); Gov't Sentencing Mem., 05 cr 673, Dkt. # 174, at 3 ("Sabir took a substantial step toward providing expert advice and assistance — i.e., his medical skills — to al Qaeda."). In defending the conviction on appeal, the government speaks of "material support" generally. Gov't Br. at 58. At oral argument, however, the government confirmed that Sabir attempted to provide "medical services," then offered to perform additional research to present its "best case" that Sabir might have been found guilty of attempting to provide personnel.

[3] Although Sabir told the undercover that he could "leave the job" if "living on the hospital property is big enough of a problem," GX 906T at 69, the undercover mentioned Sabir's "very helpful" hospital ID, to which Sabir responded: "I guess that it means that if they are forcing me to live in the hospital property, then I might just have to submit to that and to try to, uh, find another way." Id. at 67-69.

[4] The majority's conclusion that these actions comprise a substantial step, thus distinguishing this case from Delvecchio and Rosa, begs the analysis, since those opinions focus on the respective defendants' actions (or lack thereof) after their initial agreements with the undercover agents. Sabir did not, for instance, call multiple subsequent meetings, describe his criminal plan in the utmost detail, settle most but not "all of the specifics" and "continue[] to negotiate with the government agent[]until his arrest prevented him from doing so." United States v. Jonsson, 15 F.3d 759, 762 (8th Cir.1994) (finding such actions sufficient to distinguish Delvecchio).

[5] The undercover agent initially requested Sabir's phone number in case "there is anything you [i.e., Sabir] need over there." GX 906T at 40 (emphasis supplied).

[6] In footnote [19] to the majority opinion, Judge Raggi expresses her own view that had the undercover agent instead been an al Qaeda operative, the evidence might well support a finding that Sabir actually provided himself as personnel, and not merely attempted to do so. Although the majority states that it does not reach that question, the suggestion that Sabir's actions might have completed the crime likewise appears in connection with the majority's definition of "reserve personnel." Majority Op., ante at [153-54]. The identity of the meeting's third participant, however, has no bearing on the attempt analysis. Had a bona fide high-level recruiter been at that meeting, the breadth of the provable conspiracy would have widened; but without a substantial step, as courts until now have construed the requirement, no attempt would have occurred.

[7] The statutory provision at issue, enacted in 2004, prohibits a person from providing (or attempting to provide) "himself" as personnel to a terrorist organization, and adds the requirement that personnel must work under the organization's "direction or control." 18 U.S.C. § 2339B(h). "Statutory definitions control the meaning of statutory words, of course, in the usual case." Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201, 69 S.Ct. 503, 93 L.Ed. 611 (1949) (authorizing deviations from the general rule in the "unusual case" or where a term is defined with less than "`watch-like precision'"). Personnel is ordinarily defined as the "body of people employed in an organization, or engaged in a service or undertaking, esp. of a military nature" (Oxford English Dictionary Online, http://www.oed.com/view/Entry/141512? redirectedFrom=personnel#), or the "body of persons employed by or active in an organization, business, or service" (American Heritage Dictionary of the English Language 1311 (4th ed. 2000)). I offer these definitions not, as the majority suggests, to override the statute, but to inform the question of what in fact suffices to provide oneself as personnel, a "blank to be filled." Burgess v. United States, 553 U.S. 124, 130-32, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) (evaluating a statutorily defined term in "context" and in light of how the term "is commonly defined"). The language in § 2339B(h), moreover, is not a traditional definition, which appear in § 2339B(g) (defining "classified information," "financial institution," "training," "expert advice and assistance" and other terms). Rather, § 2339B(h) bars prosecution unless certain requirements are met; nothing suggests that these preconditions are conclusive of liability. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (holding that where a statutory "definition" contains requirements for liability rather than simply defining the term, "[t]he implication is that while [such] acts are necessary, they may not be sufficient").

[8] The majority cites to Congress's finding, made in connection with § 2339B's adoption, that "[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." Humanitarian Law, 130 S.Ct. at 2724 (quoting AEDPA § 301(a)(7), 110 Stat. 1214, 1247 (1996)). This finding is "best read to reflect a determination that any form of material support" to a terrorist organization, including "ostensibly peaceful aid," should be barred. Id. at 2724-25 (rejecting the argument that contributions which advance "only the legitimate activities of the designated terrorist organizations" are permissible). As such, I join in the unanimous holding that § 2339B, by its terms, criminalizes the practice of medicine (or the doctor himself) that Sabir agreed to provide to al Qaeda. The record below, however, does not support the conclusion that Sabir is guilty of attempting or committing the substantive offense.

[9] Although Sabir did not raise a double jeopardy challenge, nor could he have raised one, to an apparent conclusion of law announced for the first time on appeal, multiple sentences for the same offense are cognizable as plain error. See United States v. Coiro, 922 F.2d 1008, 1013-15 (2d Cir.1991). Sabir's attorney did unsuccessfully argue below for concurrent sentences, moreover, since the conspiracy and substantive charges "are actually encompassed in the same conduct." (11/28/07 Sentencing Tr., 05 cr 673, at 13-14.)

[10] In the context of 18 U.S.C. § 2339A, this Court has noted that "[b]y applying ... the prohibition against providing `personnel' ... to a circumstance in which the defendants provided themselves, the government created a situation in which the defendants could be punished for, in effect, providing themselves to speak out in support of the program or principles of a foreign terrorist organization, an activity protected by the First Amendment." Stewart, 590 F.3d at 118 (contrasting this situation with that of providing another as personnel, an activity that "does not carry the same risk with its corresponding constitutional implications"). While giving full import to § 2339B(h)'s limiting definition, to which the Stewart panel cited, I submit that punishing do-nothing "personnel" for violating the statute's substantive provisions "in effect" punishes such actors for aligning with a terrorist organization.

[11] In the government's own words: "[T]he bayat pledge, the pledge itself, by Rafiq Sabir was not in and of itself a crime.... The bayat itself is not the crime, but it is compelling powerful evidence of those crimes. It shows exactly what Rafiq Sabir was thinking. It shows his sincere commitment to aid al Qaeda." 5/15/07 Trial Tr., 05 cr 673, at 2337.