Second Circuit Reverses Material Support Conviction for Lone-Wolf Terrorist Attack

Ullah was convicted by a jury for deflagrating a homemade pipe bomb in an underground tunnel between the Times Square/42nd Street subway station and the Port Authority Bus Terminal in Manhattan on December 11, 2017. The attack injured commuters with shrapnel and caused hearing loss and emotional trauma.

Ullah had consumed anti-American ISIS propaganda since 2011 and watched a YouTube video urging attacks against America before assembling the bomb using materials from his job site. He carried the device on his person and posted messages online using ISIS slogans before detonating the bomb.

The Second Circuit held that the evidence was insufficient to sustain the conviction under 18 U.S.C. § 2339B, which prohibits providing material support to a designated foreign terrorist organization. The court analyzed two theories: that Ullah provided "personnel" or performed a "service" for ISIS.

Under the "personnel" theory, the court relied on 18 U.S.C. § 2339B(h), which defines personnel as individuals who work under the terrorist organization’s direction or control. The statute expressly excludes individuals who act entirely independently to advance the organization’s goals.

The court found that Ullah acted entirely independently. He was inspired by general online exhortations but did not coordinate with ISIS, nor did ISIS know of his existence or direct his specific actions. The court noted that being inspired by propaganda does not establish that a defendant acted as personnel under the statute.

Similarly, the court rejected the "service" theory, citing Supreme Court precedent in Holder v. Humanitarian Law Project. The court held that independent activity in support of a terrorist group cannot be characterized as a service provided to that group, as service requires coordination or direction.

The Second Circuit affirmed Ullah’s convictions on other counts, including committing a terrorist attack against mass transportation systems under 18 U.S.C. § 1992(a)(2) and using a destructive device during a crime of violence under 18 U.S.C. § 924(c).

The court held that carrying a bomb on one’s person and boarding a subway constitutes "placing" a destructive device under § 1992(a)(2). It also held that the completed offense under 18 U.S.C. § 2332f(a)(1) is a crime of violence supporting the § 924(c) conviction.

Ullah remains subject to multiple life sentences and a thirty-year consecutive term for the remaining convictions. The reversal of the material support count does not reduce his sentence below life imprisonment.