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UNITED STATES of America, Appellee,
v.
Abdulrahman FARHANE, also known as "Abderr Farhan," and Rafiq Sabir, Defendants-Appellants.
United States Court of Appeals, Second Circuit.
*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
*131
(1) Sabir's Vagueness Claim Is Properly Reviewed as Applied .......................138
(2) The Standards for As-Apphed Review ............................................139
(3) Sabir's Vagueness ChaUenge 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 Requu-ements
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-Conspu-ator 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 demonstratethat § 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,