Ninth Circuit Dumps Sentencing Enhancement Handed To Defendant For Opening Social Media Accounts For ISIS Sympathizers

from the decades-in-jail-for-sock-puppet-construction dept

The FBI is still creating terrorists -- finding loud-mouthed online randos to radicalize by hooking them up with undercover agents and informants seemingly far more interested in escalating things than defusing possibly volatile individuals.

The Ninth Circuit Court has, fortunately, decided to roll back a ridiculous sentencing enhancement added to another one of the FBI's homegrown extremists. The terrorism enhancement in this case was triggered by this: the defendant's opening of six social media accounts for alleged ISIS sympathizers.

The details of the case -- contained in the court's reversal [PDF] of the sentencing enhancement -- show Amer Alhaggagi was a bit of a troll. The son of Yemeni immigrants, Alhaggagi was born in California but spent a lot of his life traveling back and forth to Yemen to spend time with his mother. He was raised in a Muslim home but that upbringing didn't really make him a Muslim. He didn't seem to have much interest in adhering to the religion's rules and instead drifted towards the internet, where he developed a "sarcastic and antagonistic persona."

This is how things were going before the FBI got involved:

In 2016, at the age of 21, Alhaggagi began participating in chatrooms, and chatting on messaging apps like Telegram, which is known to be used by ISIS. He chatted both in Sunni group chats sympathetic to ISIS and Shia group chats that were anti-ISIS. He trolled users in both groups, attempting to start fights by claiming certain users were Shia if he was in a Sunni chatroom, or Sunni if he was in a Shia chatroom, to try to get other users to block them. He was expelled from chatrooms for inviting female users to chat, which was against the etiquette of these chatrooms, as participants in those chats followed the Islamic custom of gender segregation.

One can only imagine what would have happened to Alhaggagi if the FBI hadn't decided to step in. Probably something way less interesting than what happened when it did. The internet is full of trolls, even the parts of the internet most people don't access. But an FBI source happened to be hanging out in a chatroom when Alhaggagi attempted to stir up the crowd there with some extremist chatter.

In one Sunni chatroom, in late July 2016, Alhaggagi caught the attention of a confidential human source (CHS) for the FBI when he expressed interest in purchasing weapons. In chats with the CHS, Alhaggagi made many claims about his ability to procure weapons, explaining that he had friends in Las Vegas who would buy firearms and ship them to him via FedEx or UPS. Alhaggagi also made disturbing claims suggesting he had plans to carry out attacks against “10,000 ppl” in different parts of the Bay Area by detonating bombs in gay nightclubs in San Francisco, setting fire to residential areas of the Berkeley Hills, and lacing cocaine with the poison strychnine and distributing it on Halloween. He claimed to have ordered strychnine online using a fake credit card, of which he sent a screenshot to the CHS, bragging that he engaged in identity theft and had his own device-making equipment to make fake credit cards.

In isolation, this sounds horrifying. Given the context of Alhaggagi's internet trolling, it was just more bullshit. As the court notes, his online persona was not especially well-crafted and prone to delivering contradictory claims during the same chatroom conversations.

One minute his persona was selling weapons, the next he claimed to need them, all in the same chatroom. His persona allegedly had associates in Mexican cartels who could get him grenades, bazookas, and RPGs, offered to join a user in Brazil to attack the Olympics, and was considering conducting attacks in Dubai.

This isolated braggadocio led to 24-hour surveillance by the feds and the insertion of an undercover agent into Alhaggagi's life. The FBI's confidential informant pushed Alhaggagi to meet with the undercover agent and things kind of took off from there. The pair discussed bomb-making and visited a storage space to supposedly be used to store bomb stuff. Alhaggagi said other ridiculous things, like detailing a plan to become a cop so he could obtain more weapons. On the third visit, the FBI stocked the storage space with fake explosives. On the drive back, Alhaggagi pointed out good locations for bombs.

Then he stopped meeting with the undercover agent. Alhaggagi claimed seeing the explosives in the storage space made it clear he'd taken this too far. From that point on, he never contacted the undercover agent again.

The FBI searched his home in November of 2016, finding evidence showing Alhaggagi was back to trolling, rolling into ISIS-related chatrooms to say bad things about the US government. It also found that he had opened up Twitter and Gmail accounts for some people in the chatroom, who were alleged ISIS sympathizers. Some of these accounts were later linked to ISIS's propaganda organization. Agents also found online searches related to bomb-making, strychnine, and flammable devices/substances.

The "material support" alleged here was the opening of social media and email accounts. But the court doesn't find the government's arguments persuasive. The government had the burden of proving Alhaggagi knew these accounts would be used to "intimidate or coerce" the US government or "retaliate" against it via violent acts.

The lower court simply shrugged and said there was no other possible use for the accounts, given that they were created for people in a pro-ISIS chatroom. But that shrug of indifference added decades to Alhaggagi's sentence. The probation office's pre-sentencing report suggested 48 months. The government countered with its terrorism enhancement, asking for a 396-month sentence. That's a difference of 29 years. The court settled on 188 months with 10 years of supervised release.

The Appeals Court reminds the government that the enhancement doesn't automatically apply to material support for terrorism charges. It also notes the government fell short on the burden of proof.

The district court’s conclusion rests on the erroneous assumption that in opening the social media accounts for ISIS, Alhaggagi necessarily understood the purpose of the accounts was “to bolster support for ISIS’s terrorist attacks on government and to recruit adherents.” Unlike conspiring to bomb a federal facility, planning to blow up electrical sites, attempting to bomb a bridge, or firebombing a courthouse—all of which have triggered the enhancement— opening a social media account does not inherently or unequivocally constitute conduct motivated to “affect or influence” a “government by intimidation or coercion.” 18 U.S.C. § 2332b(g)(5)(A). In other words, one can open a social media account for a terrorist organization without knowing how that account will be used; whereas it is difficult to imagine someone bombing a government building without knowing that bombing would influence or affect government conduct.

The lower court stretched the definition beyond credulity to add more than a decade to the defendant's sentence.

The district court’s “cause and effect” reasoning is insufficient because the cause—opening social media accounts—and the effect—influencing government conduct by intimidation or coercion—are much too attenuated to warrant the automatic triggering of the enhancement. Instead, to properly apply the enhancement, the district court had to determine that Alhaggagi knew the accounts were to be used to intimidate or coerce government conduct.

The FBI found a malcontent wandering the internet and when the troll refused to keep participating in the "blow shit up" charade, it raided and arrested him for material support. Then, for the crime of opening social media accounts, the government wanted to lock him up for more years than he'd been alive. And, for all the effort -- the 24-hour surveillance, the undercover agent, and the confidential informant -- the FBI came no closer to heading off a terrorist attack or taking down a terrorist organization.

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Filed Under: 9th circuit, amer alhaggagi, fbi, isis, own plots, own terrorists, sentencing enhancements, social media, trolling, trolls


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  1. identicon
    Bobvious, 28 Oct 2020 @ 4:50am

    This kinda sounds about as effective

    as shutting down Antifa by arresting a duck's shadow.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 28 Oct 2020 @ 5:20am

    So all that time and money, including using the court systems was spent to... try and throw a man in jail for years because he dared to help people use a platform that didn't want them?

    That sounds crazy and/or malevolent to me.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 28 Oct 2020 @ 7:02am

    Re:

    It is not even proven that the platform didn't want them. For all we know, the people the accounts were opened for could have gotten accounts on their own.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 28 Oct 2020 @ 7:22am

    Re: Re:

    Good point. If that were the case: wouldn't this collapse into a 1st Amendment violation?

    Charging someone with terrorism for... helping other people use a speech platform seems... very 1A-ish to me (barring of course, all the evidence that i don't have).

    reply to this | link to this | view in thread ]

  5. icon
    Scary Devil Monastery (profile), 28 Oct 2020 @ 8:10am

    Well, I think we found Baghdad Bob's long-lost cousin...?

    "The FBI found a malcontent wandering the internet and when the troll refused to keep participating in the "blow shit up" charade, it raided and arrested him for material support."

    So let's see if we can summarize this; Some gormless no-life moron spends years pretending to be the worst sort of scum possible and ends up managing to fool the FBI to the point where they start prepping a sting op against this shining paragon of human cognition...
    ...and our intrepid explorer of Stephen King-class far-end sociopathy gets cold feet only after physically meeting up with what he believes is a bona fide terrorist...?
    ...and then goes straight back to the same trolling, against the same people, with the same M.O. he should now know draws the
    wrong sort of attention* to himself?

    I'm torn on this. On the one hand I really don't like to see disgruntled G-men using the seamy crotch of murky anti-terrorist law as a blunt instrument of retaliation against an admittedly obnoxious asshole.
    On the other hand it's hard to keep the schadenfreude under wraps when particularly vigorous examples of malicious and unrepentant stupid receive their honorary Darwin award.

    I was reminded of that deep philosophical statement of the late. great George Carlin;

    "There are some dumbass motherfuckers floating around this country, people"

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 28 Oct 2020 @ 8:24am

    Re: Well, I think we found Baghdad Bob's long-lost cousin...?

    Yeah, but do we really want to approve of (de-facto) outlawing being dumbass trash?

    If he committed a reasonable crime then I am all for having him face the consequences. However I don't see how deliberately punishing him for stuff that isn't illegal (at least most of the stuff I understand in the article either isn't illegal, or might possibly be a CFAA violation, or maybe breach of ToS, which AFAIK isn't actually a crime) makes this country a better place. That's what the judicial system should be for, discouraging behavior that is extremely harmful to society.

    reply to this | link to this | view in thread ]

  7. identicon
    Pixelation, 28 Oct 2020 @ 8:33am

    One troll too far

    Stupid is as stupid does.

    I'm curious what mental disorder drives trolls.

    reply to this | link to this | view in thread ]

  8. icon
    That One Guy (profile), 28 Oct 2020 @ 10:31am

    Re: One troll too far

    A desperate need for people to pay attention to them, a need to feel 'powerful' achieved by 'making' people get angry, and some just want to see the world burn.

    reply to this | link to this | view in thread ]

  9. icon
    That One Guy (profile), 28 Oct 2020 @ 10:35am

    'How dare you cut your strings and leave!?'

    I can't help but suspect that more than a little of the FBI's motivation after a certain point was petty spite, anger that their handcrafted 'terrorist' refused to play along so they could pretend that they were actually doing something useful leading to them looking for anything they could use to convict him or force him into a plea deal.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 28 Oct 2020 @ 12:43pm

    If the FBI and CIA want to "radicalize" me and give me $250,000, I will create a massive (cake) Bombe as part of my halloween 'terror' campaign......

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 28 Oct 2020 @ 12:45pm

    Real reason the FBI is making fake terrorists: they're creaming cash from the budget.

    Oh yeah, we had to pay the guy $50,000 so he could "be a terrorist"....yeah he DID buy a new PC, a giant TV and every single steam game he wanted....but we saw him on CoD shooting people...so win-win?

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 28 Oct 2020 @ 12:48pm

    Like 99% of FBI prosecutions, this shouldn't have happened at all. He did nothing wrong.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 28 Oct 2020 @ 4:42pm

    Re: Re: Well, I think we found Baghdad Bob's long-lost cousin...

    only after physically meeting up with what he believes is a bona fide terrorist?

    Did he actually believe that though? Maybe it's just me, but the idea that there's a "bona fide terrorist" just wandering around the US who needs the help of some rando from an internet chatroom is significantly less believable than there being an islamic terrorist "LARPer" who wants to meet some internet rando.

    Just like any other extremist, there's a couple thousand role-players for every one who might consider actually doing something. Having no strong principles of your own makes it easy to forget that some people actually believe in things.

    reply to this | link to this | view in thread ]

  14. icon
    Scary Devil Monastery (profile), 29 Oct 2020 @ 1:49am

    Re: Re: Well, I think we found Baghdad Bob's long-lost cousin...

    "Yeah, but do we really want to approve of (de-facto) outlawing being dumbass trash?"

    In principle? No, HELL, no. We have laws applying to everyone for a reason and violation of said laws should always be rooted in a moral and ethical evaluation of why those laws should be violated. The MLK approach.

    My first real job was as a database admin, however, and any halfway decent BOFH will, in his job, develop a very dim moral view of the sanctity of life where absolute morons are concerned.

    Hence why my personal opinion on the subject is "I'm torn". The feds trying to smack anti-terrorist law on a troll is - literally that old line about trying to fix broken things in wrong and harmful ways. It's a delicious conundrum which in principle only has the answer of two wrongs not making a right, but I'm still not a good enough person not to give the outcome a chuckle or two.

    That said, without the anti-terror add-on he still gets hit with 48 months. And I can imagine why, given that his actions were, at the very least, conspiracy and planning to commit mass murder, nailed down when he physically met the undercover agent and discussed plans for storing bombs. That he was only "pretending to be a murderer" cuts no ice there, which only proves that eventually certain types of idiots always self-destruct.

    As a tangent I'd reiterate my oft-stated position that "anti-terror" laws in general always lack good jurisprudens. They're basically ways to smack a suspect of a crime extensively covered in normal proportional law with a far harsher sentence and with a far lower burden of proof than would otherwise be the case. Not rarely "proof" based on racism, bigotry, or pure speculation. Anti-terror laws are just the government answer to "We want to nail someone HARD but our case is weak and we have neither a committed crime nor actual evidence to go on".

    reply to this | link to this | view in thread ]

  15. icon
    Scary Devil Monastery (profile), 29 Oct 2020 @ 1:59am

    Re: Re: Re: Well, I think we found Baghdad Bob's long-lost cousi

    "Maybe it's just me, but the idea that there's a "bona fide terrorist" just wandering around the US who needs the help of some rando from an internet chatroom is significantly less believable..."

    Read the OP again. All I can say is, "The stupid, it hurts!". Alhaggagi spent significant parts of his life in pro-ISIS chatrooms trying to convince people he was a genuine hardass. And he succeeded in that;

    "The pair discussed bomb-making and visited a storage space to supposedly be used to store bomb stuff. Alhaggagi said other ridiculous things, like detailing a plan to become a cop so he could obtain more weapons. On the third visit, the FBI stocked the storage space with fake explosives. On the drive back, Alhaggagi pointed out good locations for bombs."

    At no point in time did anyone come to the conclusion that this was a spontaneous LARP session extending over an indefinite period of time, making this an actual conspiracy to commit murder. That Alhaggagi then developed "cold feet" and chose not to participate further, without even throwing an anonymous call to law enforcement means there may be mitigating circumstance but the planning and conspiracy bit is pretty well established. The idiot surely went the distance establishing mens rea.

    LARPers and roleplayers have faced issues many times when their correspondence had snooping feds convinced they were on to genuine Big Bads - Steve jackson games vs the FBI many years back comes to mind - and as a result roleplayers and game developers are VERY good at establishing ground rules before the freeform acting begins.

    reply to this | link to this | view in thread ]

  16. icon
    Scary Devil Monastery (profile), 29 Oct 2020 @ 2:11am

    Re:

    "Like 99% of FBI prosecutions, this shouldn't have happened at all. He did nothing wrong."

    I was with you as far as the "99%", because that much is true. The FBI does not have a good reputation when it comes to proportional and reasonable intervention.

    But yeah, he did wrong. Morally speaking a troll is a type of bottomfeeding shitweasel deserving only of scorn. His only purpose of existence right now is to be the butt of clown jokes and schadenfreude. If that behavior was rooted in a form of mental affliction then this is a good opportunity for him to wake up, realize he has a problem, and seek help.

    Legally speaking? When he physically met someone he believed was a terrorist and planned the storage and deployment of explosives he nailed himself to mens rea. Conspiring to commit murder is indeed criminal, for good reason.
    That he later on developed cold feet but did not see fit to even drop an anonymous comment to law enforcement means mitigating circumstances but not exculpation.

    The anti-terror add-on is pure gibberish as every anti-terror law is, but a prison sentence for a well-established conspiracy to commit mass murder is genuine enough. 48 months in the slammer sounds about right, if surprisingly lenient for the US. With good behavior he may be out in much less than that and hopefully with the realization that pretending to be a terrorist isn't just uncool but also dangerous.

    Had the guy he plotted with been something other than an undercover operative he'd have faced the choice of either putting his plans into practice for real or ending up on a slab in the morgue with a tag on his toe.

    reply to this | link to this | view in thread ]

  17. icon
    Scary Devil Monastery (profile), 29 Oct 2020 @ 2:15am

    Re:

    "What's that, a fiendish plot to murder people with heart attacks én másse? Diabolical!!"

    I wouldn't be too surprised if standing on a street corner and handing out massively sugarized cakes to bypassers could be considered an act of "terror" under US law as long as you've got it written down somewhere that this is a plot to make all the fat american infidels die of diabetes and heart attacks.

    reply to this | link to this | view in thread ]

  18. icon
    Scary Devil Monastery (profile), 29 Oct 2020 @ 2:20am

    Re: 'How dare you cut your strings and leave!?'

    "I can't help but suspect that more than a little of the FBI's motivation after a certain point was petty spite,"

    I think that much is given. Pouty G-man almost had a willing stooge set himself up for a genuine high-tier collar but got cold feet and didn't want to play no more.

    That said Alhaggagi reads as a very special kind of maliciously stupid so in this particular case i can at least assign the FBI the benefit of circumstance. As read from Popehat, if you fuck donkeys merely in order to pretend you're a donkeyfucker you really shouldn't be surprised to be treated as a donkeyfucker.

    reply to this | link to this | view in thread ]

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