Friday, June 25, 2010
By TIM HULL
(CN) -A man serving 14 years in prison for raising and laundering money for a violent Sikh separatist group faces a longer sentence, according to the 2nd Circuit, because he may qualify for a terrorism enhancement.
Khalid Awan was convicted of three counts of conspiring to support a terrorist group after he told prison informants and potential recruits that he worked for the Khalistan Commando Force, an armed group that wants a separate Sikh state in India.
During Awan's sentencing hearing, U.S. District Judge Charles Sifton denied a federal request for the terrorism enhancement. The government argued that each of Awan's crimes was "intended to promote" the federal crime of terrorism, and therefore qualified for the enhancement.
Sifton ruled that there wasn't enough evidence to show that Awan's actions met the statutory standard for terrorism, as they lacked the so-called "motivational element," requiring that they be "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct."
Sifton also concluded that the "intended-to-promote" prong of the enhancement did not apply.
Without the terrorism enhancement, the court sentenced Awan to 168 months in prison, the low end of a range that allowed up to 210 months.
The New York-based appellate panel found that Sifton misconstrued two elements of the sentencing guidelines.
The government did not have to prove that "Awan was personally motivated by a desire to influence or affect the conduct of government," Judge Debra Ann Livingston wrote for the three-judge panel. "Rather, the government need only demonstrate that Awan intended to promote a crime calculated to have such an effect, i.e., that his offenses were intended to promote a federal crime of terrorism ... whatever Awan's reason for committing them."
Livingston added that the government could still prove that Awan's offenses were meant to influence a government even if he had no personal political motives.
"For example, if the evidence showed that Awan engaged in criminal conduct with knowledge that confederates solicited his actions to effectuate politically motivated bombings in India, or homicidal attacks on that country's security forces or its political leaders, such proof could demonstrate that Awan's crimes were calculated to influence the conduct of government even if he was not personally motivated by that object," Livingston wrote.
"A hired assassin who kills a political leader at the behest of a terrorist organization can hardly disclaim that his crime was calculated to influence the conduct of government simply because he was motivated by greed rather than politics."