SAN FRANCISCO — In a rebuke of a Bay Area federal judge’s decision, the Ninth Circuit Court of Appeals has struck down a terrorism enhancement against a man who was sentenced to 15 years in federal prison for opening six Twitter accounts for an undercover agent he believed was a member of ISIL.
Amer Alhaggagi, whose last name is also spelled “Al-Haggagi” in court records, was caught on video voicing a desire to commit bombings and kill thousands of people in the East Bay, remarks he later described in court as fantasy trash talking. But through a plea deal, he was convicted of “attempting to provide material support” to terrorists simply because he agreed to open social media accounts for the purported member of the Islamic State, known as ISIL and ISIS.
At Alhaggagi’s February 2019 sentencing, U.S. Probation recommended a two-year term, according to court records. But prosecutors asked U.S. District Judge Charles Breyer to apply a so-called “terrorism enhancement” that made him eligible for up to 20 years. Breyer applied the enhancement and sentenced Alhaggagi to 15 years.
The Ninth Circuit was asked to decide whether the terrorism enhancement should have applied. The legal standard asks whether the defendant’s conduct was an attempt to “influence or affect the conduct of government by intimidation or coercion.”
In a decision issued Thursday, Ninth Circuit Judges Milan Smith and David Herza wrote that it did not apply to Alhaggagi’s case. They cited a Second District case that found the enhancement did not apply to a man who’d acted as a translator for a terrorist organization.
“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,'” Smith and Herza wrote. “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.'”
The decision orders Alhaggagi’s case back to the Northern District of California for a new sentence to be imposed. Alhaggagi, 24, has been incarcerated since his arrest in late 2016, records show.
In his dissenting opinion, U.S. Circuit Judge Andrew Hurwitz noted that Alhaggagi “expressed interest” in acquiring explosive material and discussed bombings, setting fire to the Berkeley hills, and circulating cocaine laced with poison around Bay Area nightclubs.
“There was ample evidence from which the district court could conclude that Alhaggagi intended to support ISIS’s terrorist activities,” Hurwitz wrote. “Alhaggagi initially tried to recruit the FBI source to travel with him to fight on behalf of ISIS. After abandoning that idea, Alhaggagi repeatedly shared a set of plans for terrorist attacks in the Bay Area.”
During the FBI investigation, Alhaggagi reportedly had internet chats with members of ISIS, including a 17-year-old who later admitted to authorities he was part of United Cyber Caliphate, a hacker branch of ISIL. He also spoke with an FBI informant who introduced him to an undercover FBI agent who claimed to have ties to Al-Qaeda.
Alhaggagi met with the agent multiple times and discussed in detail ways to kill hundreds or thousands of people. During their talks, Alhaggagi claimed his uncle in Yemen was a friend of Anwar al-Awlaki, a Yemeni-American imam described by U.S. officials as a recruiter and planner for Al-Qaeda. Al-Awlaki was killed by a U.S. drone strike in Yemen in 2011.
But in a letter to the court, Alhaggagi claimed the purported plots were fantasies he concocted out of boredom and said he had no intentions of committing terrorism.
“Everything was a joke to me, … I didn’t think anyone was taking me seriously,” Alhaggagi wrote to the court. “I do not support any terrorist organization, or any organization for that matter. It truly saddens me to acknowledge and own up to the fact that it took me to come to this calaboose to elevate my mind from the vacuous state that it was in. I feel really bad for the harm I’ve caused everyone and wasting the FBIs (sic) valuable time.”
Prosecutors say Alhaggagi eventually became suspicious that the undercover agent wasn’t who he claimed to be and questioned the agent — who made several missteps — about his knowledge of Iran and other subjects. When the agent expressed sympathy for Iran, Alhaggagi became suspicious, even more so when the agent failed to recognize the leader of Al-Qaeda by name.
At their final meeting in Oakland, Alhaggagi reportedly invented a ruse and ran from the agent, and they never crossed paths again. Federal prosecutors called this proof that Alhaggagi had figured out the agent’s true identity, but Alhaggagi’s attorney said it was evidence that Alhaggagi never intended to commit a terrorist attack.
In his letter, Alhaggagi said that after he met with the FBI agent, he began to believe the man was actually plotting terrorist attacks and became extremely concerned. He said his plan was to blow off the agent indefinitely. After the last meeting, he stayed off the internet for more than a month, he wrote, but then went “back to messing with people on the internet especially the ISIS guys.”
“It was a mixture of imprudence and boredom and as I had stated in the very beginning of this paper, I was in a funk! What can I say but that I should of known better, but regretfully I didn’t,” he wrote.
