United States v. Wahhaj (Siraj Ibn)
CourtCourt of Appeals for the Tenth Circuit
Date FiledOctober 6, 2026
Docket23-2168
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 6, 2026
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2168
SIRAJ IBN WAHHAJ,
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2170
HUJRAH WAHHAJ,
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2171
SUBHANAH WAHHAJ,
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-2039
LUCAS MORTON,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 1:18-CR-02945-WJ-2, 1:18-CR-02945-WJ-3, 1:18-CR-02945-WJ-
4, 1:18-CR-02945-WJ-5)
_________________________________
Jacob Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendant-Appellant Siraj Wahhaj.
Katayoun A. Donnelly of Azizpour Donnelly LLC, Denver, Colorado, for
Defendant-Appellant Hujrah Wahhaj.
Gregory M. Acton of Acton Law Office, PC, Albuquerque, New Mexico, for
Defendant-Appellant Subhanah Wahhaj.
Andrew M. Casey of Hendrick, Casey, Hutter, PLLC, Oklahoma City,
Oklahoma, for Defendant-Appellant Lucas Morton.
Tiffany L. Walters, Assistant United States Attorney (Todd Blanche, Attorney
General, and Ryan Ellison, First Assistant United States Attorney, with her on
the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
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Federal law prohibits “unlawfully seiz[ing], confin[ing], inveigl[ing],
decoy[ing], kidnap[ping], abduct[ing], or carr[ying] away” another person.
18 U.S.C. § 1201(a). But what must the government prove to establish that a
defendant “unlawfully” did one of those things? Many issues swirl in these
related appeals, but this question takes center stage. 1
Based on messages that Jany Leveille allegedly received from God,
Defendant Siraj Ibn Wahhaj believed that his wife Hakima Ramzi was using
black magic on their disabled, three-year-old son, Abdul Ghani. Siraj also
believed that the only way to help Abdul Ghani was to perform ruqyah—a
Muslim version of an exorcism—to rid him of evil spirits.
So Siraj snatched Abdul Ghani away from Hakima, his primary caregiver
from birth. Days later, Siraj and Abdul Ghani—along with Jany; Defendants
Hujrah Wahhaj, Subhanah Wahhaj, and Lucas Morton; and the group’s
children—fled from Georgia to Alabama. About ten days after that, they left for
New Mexico. There, the group built a compound on a remote, empty lot in the
desert.
Each day, Siraj and Jany performed ruqyah on Abdul Ghani. These
sessions were grueling. During the last ruqyah session, Siraj held Abdul Ghani
1
The clerk’s office consolidated appeal Nos. 23-2168, 23-2170, 23-2171,
and 24-2039, which involve various issues raised by four codefendants after a
joint trial. This opinion addresses all four appeals.
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down and put his hand on Abdul Ghani’s neck. Abdul Ghani started struggling,
foaming at the mouth, and choking, until he stopped breathing.
Jany then prophesized that Abdul Ghani would be resurrected as Jesus
Christ. He would lead them around the world to confront corrupt institutions,
including federal agencies like the CIA and FBI. The group would follow with
an army and kill anyone who didn’t “believe in” Abdul Ghani. To prepare, Siraj
led firearms training for Lucas and Jany’s sons. Siraj and Lucas also fortified
the compound, preparing to defend it against any approaching law-enforcement
officers.
Eventually, state officers in New Mexico secured a search warrant for the
compound. As the officers approached, Siraj armed himself and told one of
Jany’s sons to grab a weapon from the compound’s stash. But on Jany’s orders,
Siraj stood down. Officers arrested Siraj and Lucas and removed the others
from the compound. A few days later, officers located Abdul Ghani’s body in a
tunnel Siraj and Lucas had dug under the compound.
The government indicted Hujrah, Subhanah, and Lucas under 18 U.S.C.
§ 1201(a)(1) and (c) with conspiracy to commit kidnapping and with
kidnapping resulting in death. It didn’t indict Siraj for those offenses because
§ 1201(a) exempts from prosecution parents who kidnap their own child. See
id. § 1201(a), (h).
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A jury later convicted Hujrah, Subhanah, and Lucas. On appeal, they
argue that their role in seizing, confining, inveigling, decoying, kidnapping,
abducting, or carrying away Abdul Ghani wasn’t unlawful under § 1201(a).
Exercising jurisdiction under 28 U.S.C. § 1291, we agree. The jury
instructions misstated the meaning of § 1201(a)’s “unlawfully” element. And
the government didn’t introduce enough evidence to establish that Hujrah’s,
Subhanah’s, or Lucas’s conduct was unlawful. So we reverse their convictions
for conspiracy to commit kidnapping and kidnapping resulting in death.
The government also indicted Hujrah, Subhanah, Lucas, and Siraj with
conspiracy to provide material support to kill federal officers and with
providing material support to do the same. And it indicted Siraj and Lucas with
conspiracy to kill federal officers.
The jury acquitted Hujrah and Subhannah, but it convicted Siraj and
Lucas—who proceeded pro se—on all three counts. Siraj and Lucas now
appeal, arguing among other things that the district court violated their Sixth
Amendment rights when it excluded them from a jury-note conference.
Here, too, we agree. The district court committed structural error when it
excluded the pro se defendants from a jury-note conference of tactical
importance. As a result, we vacate Siraj’s and Lucas’s convictions on the
material-support and conspiracy-to-kill counts and remand for further
proceedings.
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BACKGROUND
I. Factual Background 2
In August 2014, Hakima Ramzi and Defendant Siraj Ibn Wahhaj had a
child, Abdul Ghani. At birth, Abdul Ghani suffered hypoxic ischemic
encephalopathy, a brain injury resulting from a lack of oxygen or blood flow,
which delayed his development. He also had a form of cerebral palsy and
experienced seizures. Still, with medication, therapy, and Hakima’s care, he
had started speaking and moving independently by the age of three. Hakima
was Abdul Ghani’s primary caretaker, and no one else gave him his medication.
While Siraj was legally married to Hakima, he entered a religious
marriage with Jany Leveille. Siraj and Jany had several children together, and
Jany also had two sons from a prior relationship. Siraj split his time between
Hakima and Jany’s households. Eventually, he moved Hakima and Abdul Ghani
into a motel room.
Among other siblings, Siraj had two sisters: Defendants Hujrah Wahhaj
and Subhanah Wahhaj. Hujrah had one daughter. Subhanah was married to
Defendant Lucas Morton, with whom she had four children.
In October 2017, Siraj and Hujrah traveled to England to learn how to
perform ruqyah. One form of ruqyah involves reciting Qur’an verses while
extending hands over or rocking a person. This form provides protection or a
2
We take these facts from the testimony and evidence presented at trial.
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blessing. Another form is “[a] Muslim version of an exorcism.” JR. vol. VI at
1290. It involves reciting Qur’an verses while holding the person’s body and
head. That form is more physically intrusive, is used to extract evil spirits, and
requires training to perform. Siraj and Hujrah went to England to learn this
more physically intrusive type of ruqyah.
Around this time, Jany allegedly began receiving messages from God.
She told the others that God had told her that Abdul Ghani was her son and that
Hakima had used black magic to steal him from Jany’s womb. When Jany
shared these messages with Siraj, Hujrah, Subhanah, and Lucas, they believed
her.
In late November 2017, Siraj and Hujrah confronted Hakima. She denied
any involvement in black magic and asked Siraj for a divorce.
Then Jany said that God told her Siraj needed to get Abdul Ghani so they
could perform ruqyah on him. So on either November 30 or December 1, Siraj
went to Hakima’s motel room and, while she was in the shower, announced that
he was taking Abdul Ghani to the park. Because Siraj hadn’t previously taken
Abdul Ghani outside, Hakima rushed from the shower, but by then Siraj and
Abdul Ghani were gone. She waited, but they didn’t come back, and Siraj had
left Abdul Ghani’s medication behind.
When Hakima called Siraj, he said he would bring Abdul Ghani back. But
he never did. He eventually blocked Hakima’s calls.
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After Hakima told Siraj’s brother Muhammad Wahhaj what had
happened, Muhammad spoke to Siraj, Jany, and Hujrah. They told Muhammad
about Hakima’s using black magic, but Muhammad didn’t believe them and
told them to return Abdul Ghani.
The next day, Muhammad and Hakima found Siraj at Hujrah’s house.
Hakima called the police and, on officers’ orders, Siraj brought Abdul Ghani
outside. Despite Abdul Ghani’s protests, Siraj wouldn’t let Hakima touch
Abdul Ghani and threatened her for involving the police. The officers didn’t
intervene, advising Hakima that she would need to “go through the court
processes” to get Abdul Ghani back. Id. at 1992–93.
Soon after, Hakima called child-protective services. She also returned to
Hujrah’s house with a police detective. But no one was there. Hakima contacted
Siraj’s family members, who reached out to Siraj, Jany, Hujrah, and Subhanah.
Some of the messages from Siraj’s family stressed that Abdul Ghani needed
both his medication and Hakima’s care. Yet for the most part, the group didn’t
respond.
On December 18, a Georgia juvenile court issued a “pick up order”
authorizing law enforcement to retrieve Abdul Ghani and place him with
Hakima. 3 Around that time, Hakima filed for divorce and emergency custody.
3
About a month later, the same court issued an “adult warrant” for Siraj
and a second pick-up order for Abdul Ghani.
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But her actions were futile. By then, Siraj and Abdul Ghani were in New
Mexico, living with Jany, Hujrah, Subhanah, Lucas, and their children. Earlier,
after Muhammad and Hakima had first brought the police to Hujrah’s house,
Siraj, Jany, Hujrah, Subhanah, and Lucas held a meeting. They decided that the
group “had to leave Georgia.” Id. at 1316. So they abandoned most of their
belongings and fled to Alabama, where either Lucas or Siraj owned property.
After spending about ten days in Alabama, Jany said that God was
directing them to New Mexico, where Lucas owned property. So early in the
morning on December 13, the group left Alabama in three vehicles. But Siraj
soon crashed, totaling his car.
One of the officers who investigated the accident testified that he had
noticed things that “concern[ed]” him and “felt off.” Id. at 1859, 1861. Siraj
had many firearms in the car and tried to keep the children “isolated” from the
officers. Id. at 1859–60. But lacking grounds to detain anyone, the officers let
the group go, this time all inside Lucas’s box truck and an attached camper.
By December 17, the group arrived in Amalia, New Mexico, and settled
on an empty lot in a remote area with no water or electricity. 4 They dug a hole
and pushed the trailer inside it. Subhanah, Lucas, and their children slept in the
box truck; everyone else slept in the trailer.
4
Defendants thought they had settled on Lucas’s land, but they had
mistakenly settled on adjacent land belonging to Jason and Tanya Badger.
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Since taking Abdul Ghani from Hakima, Siraj had been performing
physically intrusive ruqyahs on him. The ruqyahs occurred daily, lasted hours,
and made Abdul Ghani scream, cry, and kick. At some point, Jany declared that
Abdul Ghani was Isa (the Arabic word for Jesus) and that the ruqyah sessions
would heal him.
During a session on December 24, Siraj held Abdul Ghani down and put
his hand on Abdul Ghani’s jugular vein, causing Abdul Ghani to scream and
cry. Abdul Ghani began choking and foaming at the mouth until he stopped
breathing.
The group wrapped Abdul Ghani’s body in plastic and put it under
Hujrah’s bed. Jany told the others that the evil spirits had left Abdul Ghani’s
body, leaving him an “empty shell.” Id. at 1351. She prophesized that he would
return as Isa on Easter. Then he would lead them around the world to “corrupt
institutions,” including the federal government, while performing miracles and
collecting followers. Id. at 1447. The men at the compound would form an
army and kill anyone who didn’t “believe in” Abdul Ghani. Id. at 1359.
All the adults at the compound believed this prophecy. And in early
2018, Lucas traveled to Georgia to try to recruit Muhammad. The police came,
but Lucas refused to answer any questions about Abdul Ghani.
Back in New Mexico, Siraj, Lucas, and the older boys began combat
training with firearms to prepare to launch Abdul Ghani’s army, and also
because they thought the FBI was surveilling them. They built a firing range,
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hid weapons, and dug a tunnel “in case . . . of escape,” eventually hiding Abdul
Ghani’s body there. Id. at 1377. They kept watch, hid in the trailer, and
prepared for “[a] firearms fight” if anyone came to the compound. Id. at 1375,
1596. Living conditions were rough, and the group resorted to messaging
people for help when they ran low on food and money.
On August 3, the Taos County Sheriff’s Office secured a warrant to
search the compound for Siraj and Abdul Ghani. Lucas learned that officers
were approaching and warned the others. Siraj armed himself and told one of
Jany’s sons to grab a weapon. But when Jany told them to stand down, they did.
Officers arrested Siraj and Lucas and removed the others from the
compound. They searched for Abdul Ghani but couldn’t find him, and the
adults wouldn’t reveal his location. Eventually, one of the children told officers
that Abdul Ghani’s body was in a tunnel.
II. Procedural History
A federal grand jury indicted Jany, Siraj, Hujrah, Subhanah, and Lucas on
these charges:
• Count 1: conspiracy to provide material support to kill federal officers in
violation of 18 U.S.C. §§ 1114 and 2339A (all Defendants);
• Count 2: providing material support to kill federal officers in violation of
18 U.S.C. §§ 2, 1114, and 2339A (all Defendants);
• Count 3: conspiracy to kill federal officers in violation of 18 U.S.C.
§§ 1114 and 1117 (Siraj, Lucas, and Jany);
• Count 4: conspiracy to kidnap in violation of 18 U.S.C. § 1201(c) (all
Defendants except Siraj); and
• Count 5: kidnapping resulting in death in violation of 18 U.S.C. §§ 2
and 1201(a)(1) (all Defendants except Siraj).
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The grand jury also indicted them under 18 U.S.C. § 371 with conspiracy to
commit an offense against the United States—providing a firearm to Jany, who
was in the country unlawfully. And it indicted Jany and the others under
18 U.S.C. §§ 2 and 922(g)(5) for Jany’s possessing firearms and ammunition
and for aiding and abetting her possession.
Jany pleaded guilty to conspiring to provide material support to kill
federal officers and to possessing a firearm while unlawfully in the United
States. The government then dismissed the §§ 371 and 922(g)(5) counts against
Siraj, Lucas, Hujrah, and Subhanah, and the court renumbered the remaining
counts to those listed above. They then went to trial.
A jury found Siraj guilty on Counts 1, 2, and 3; Lucas guilty on Counts 1,
2, 3, 4, and 5; and Subhanah and Hujrah guilty on Counts 4 and 5 only. The
district court sentenced all four to life imprisonment.
Siraj, Lucas, Subhanah, and Hujrah timely appealed, challenging some of
the district court’s pretrial orders and trial rulings, as well as their convictions.
Together, they raise multiple issues:
• Issue 1: Did the district court err by denying Defendants’ motion to
dismiss the indictment?
• Issue 2: Did the district court err by denying Defendants’ motion to
suppress evidence?
• Issue 3: Did the district court err by denying Siraj’s motion to sever?
• Issue 4: Did the district court err in its jury instructions for the
conspiracy-to-kill-federal-officers offense?
• Issue 5: Was there sufficient evidence to convict on the conspiracy-to-
kill-federal-officers count?
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• Issue 6: Did the district court err in its jury instructions on the
kidnapping offenses?
• Issue 7: Was there sufficient evidence to convict on the kidnapping
counts?
• Issue 8: Did the district court violate Siraj’s and Lucas’s Sixth
Amendment rights by excluding them from bench and jury-note
conferences?
• Issue 9: Did the district court violate Hujrah’s Sixth Amendment rights
by denying her motion to proceed pro se?
• Issue 10: Did the government commit prosecutorial misconduct during
closing arguments?
• Issue 11: Were Hujrah’s and Subhanah’s sentences disproportionate
under the Eighth Amendment?
• Issue 12: Did Siraj or Lucas show cumulative error?
On Issues 1 through 5, we affirm. But on Issues 6 through 8, we reverse.
As a result, we need not reach Issues 9 through 12.
DISCUSSION
I. Issue 1: Motion to Dismiss the Indictment
Subhanah and Hujrah each argue that the district court erred by denying
their joint motion to dismiss the indictment. Lucas joins Subhanah’s appeal.
A. Procedural Background
1. The Indictment
The indictment charged two kidnapping-related counts:
Count 6
...
35. From at least in or about October 2017, up to and including
in or about August 2018, in the District of New Mexico and
elsewhere, JANY LEVEILLE, HUJRAH WAHHAJ, SUBHANAH
WAHHAJ, and LUCAS MORTON, and others known and unknown
to the Grand Jury, knowingly did conspire, combine, confederate,
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agree, and act interdependently with each other to unlawfully seize,
confine, inveigle, decoy, kidnap, abduct, carry away, and hold
[Abdul Ghani], a child who had not attained the age of eighteen (18)
years, to conceal and hold him, and, in committing or in furtherance
of the commission of the offense, did willfully transport [Abdul
Ghani] in interstate commerce from the State of Georgia to the State
of New Mexico, and did conceal and hold [Abdul Ghani], resulting
in his death.
In violation of 18 U.S.C. § 1201(c).
Count 7
...
37. From at least in or about October 2017, up to and including
in or about August 2018, in the District of New Mexico and
elsewhere, JANY LEVEILLE, HUJRAH WAHHAJ, SUBHANAH
WAHHAJ, and LUCAS MORTON knowingly did and did attempt
to unlawfully seize, confine, inveigle, decoy, kidnap, abduct, carry
away, and hold [Abdul Ghani], a child who had not attained the age
of eighteen (18) years, to conceal and hold him, and, in committing
or in furtherance of the commission of the offense, did willfully
transport [Abdul Ghani] in interstate commerce from the State of
Georgia to the State of New Mexico, and did conceal and hold
[Abdul Ghani], resulting in his death.
In violation of 18 U.S.C. §§ 1201(a)(1) and 2.
JR. vol. I at 182–83.
2. Motion to Dismiss
Defendants 5 jointly moved to dismiss the indictment’s kidnapping and
conspiracy-to-kidnap counts. Relying heavily on 18 U.S.C. § 1201’s parental
5
Throughout the Discussion section, we use “Defendants” to refer to the
group of defendants appealing the relevant issue. As noted at the beginning of
section I, Subhanah, Hujrah, and Lucas appeal the denial of the motion to
dismiss. So “Defendants” in section I refers to only these three defendants.
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exception, they argued that because Siraj—Abdul Ghani’s father—took and
transported Abdul Ghani in interstate commerce, “there was no violation of the
federal kidnapping statute.” Id. at 449; see 18 U.S.C. § 1201(a) (prohibiting
unlawfully taking someone and “hold[ing that person] for ransom or reward or
otherwise,” “except in the case of a minor by the parent thereof”).
The government opposed the motion. It argued that the indictment
charged Hujrah, Subhanah, Lucas, and Jany with conspiring with each other,
not with Siraj, to kidnap Abdul Ghani. And because none of them was Abdul
Ghani’s parent, the government argued that none of them was excepted from
liability under the kidnapping statute.
The district court denied the motion. United States v. Leveille, 671 F.
Supp. 3d 1266, 1267 (D.N.M. 2023). Though the government “appear[ed] to
agree” that Siraj was Abdul Ghani’s father and had “accompanied Defendants
and [Abdul Ghani] from Georgia to New Mexico,” the court concluded that
several material factual disputes remained unresolved. Id. at 1268–69. Those
disputes included whether Siraj had voluntarily consented to kidnapping Abdul
Ghani or whether Jany’s revelations had “tainted” his consent, whether Abdul
Ghani had “consented to going with Defendants, whether [Jany] was married to
[Siraj], and whether [Jany] could be considered a surrogate parent to [Abdul
Ghani].” Id. at 1269 (citation omitted). Because “the facts Defendants rel[ied]
on” to challenge the indictment “[we]re in dispute,” the court ruled that it
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couldn’t “conclude as a matter of law that the Superseding Indictment fail[ed]
to state” an offense. Id. at 1267.
B. Standard of Review
“We review the denial of a motion to dismiss an indictment for an abuse
of discretion.” United States v. Stevens, 881 F.3d 1249, 1252 (10th Cir. 2018)
(citation modified). And we “review any statutory interpretation issues
involved in the ruling de novo.” United States v. Berres, 777 F.3d 1083, 1089
(10th Cir. 2015).
C. Legal Framework
Under Federal Rule of Criminal Procedure 12(b), a defendant can move
to dismiss an indictment for failing to state an offense. Fed. R. Crim. P.
12(b)(3)(B)(v). We test an indictment “solely on the basis of the allegations
made on its face,” and we accept those allegations as true. United States v.
Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (citation omitted).
Yet sometimes, courts may consider Rule 12(b)(3)(B)(v) motions based
on “facts outside the indictment and bearing on the general issue of guilt.”
United States v. Chavez, 29 F.4th 1223, 1226 (10th Cir. 2022) (citation
modified). To win dismissal on such grounds, (1) “the operative facts” must be
“undisputed,” (2) the government must fail to object to the district court’s
considering those facts, and (3) the district court must be able to “determine
from [those facts] that, as a matter of law, the government is incapable of
proving its case beyond a reasonable doubt.” Id. (citation modified). “If
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contested facts surrounding the commission of the offense would be of any
assistance in determining the validity of the motion, the prosecution must
continue.” Id. at 1226–27 (citation modified).
D. Analysis
Defendants assert that their challenges to the indictment turn on statutory
interpretation, that is, “[w]hether the federal kidnapping statute exempts a
particular kind of kidnapping or only exempts” parents. Subhanah Op. Br. at
19; see also Hujrah Op. Br. at 8. But because Defendants waived this challenge,
we decline to reach it.
The district court denied Defendants’ motion because of material factual
disputes. Leveille, 671 F. Supp. 3d at 1267–69. Yet no defendant challenges
that reasoning on appeal. Instead, they assert that “the facts are undisputed”
and that the court should have granted their motion because the kidnapping
statute’s parental exception precluded liability. Hujrah Op. Br. at 11.
“Our law is clear: The first task of an appellant is to explain to us why
the district court’s decision was wrong.” United States v. Martinez, 92 F.4th
1213, 1265 (10th Cir. 2024) (citation modified). But Defendants don’t do that.
In fact, their opening briefs don’t address the district court’s reason for denying
their motion—the existence of material factual disputes—at all. Because
Defendants never explained what was wrong with the court’s reasoning, they
waived their challenge to the court’s decision. See id.; Nixon v. City & Cnty. of
Denv., 784 F.3d 1364, 1366 (10th Cir. 2015) (holding that counsel must
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“explain what was wrong with the reasoning that the district court relied on in
reaching its decision”).
II. Issue 2: Motion to Suppress
Lucas, Siraj, and Hujrah argue that the district court erred by denying
their motion to suppress evidence seized during the search of the compound.
A. Procedural Background
1. Factual Background
When the group got near Amalia, New Mexico, it settled on an
undeveloped plot of land: Lot 28. But Lucas didn’t own Lot 28—Jason and
Tanya Badger did. Though Lucas had purchased Lot 29, the group mistakenly
settled on Lot 28 instead.
Jason visited Lot 28, found Defendants there, and told them they were on
the wrong lot. Though Jason knew he could make them leave, the presence of
the group’s small children left him hesitant to “throw them out in the cold.”
JR. vol. VII at 179. So Jason and Lucas made a deal: if Lucas paid all closing
fees and costs, they would swap lots. In the meantime, Jason would let
Defendants stay on Lot 28.
A few months later, in April 2018, Lucas and the Badgers entered into a
written purchase agreement for Lucas to sell Lot 29’s warranty deed to the
Badgers for the “purchase price” of Lot 28’s warranty deed. JR. vol. II at 1123.
As discussed, the agreement called for Lucas to pay all closing costs. It set a
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closing date for June 3, and said that if one party failed to meet its conditions,
the other could terminate the agreement.
Likely after entering the purchase agreement, Jason cleared sagebrush off
Lot 29 and put posts at the lot’s corners. But beyond this preparatory work, he
did nothing else to the lot.
While the deal was still pending, Jason looked up Defendants online. He
learned that Siraj and Lucas “were wanted.” See JR. vol. VII at 193. So he
reported Defendants to the local sheriff’s office. Around that time, Jason also
gave the sheriff’s office permission to search Lot 28 “for th[e] specific
investigation on Siraj Wahhaj and Lucas Morton.” JR. vol. II at 296. But the
officers waited instead, hoping to collect more evidence for a search warrant.
A few days before the purchase agreement’s closing date, Lucas asked to
“go around” the closing costs by filing directly with the court. Supp. JR. vol.
VI at 4. Jason declined. And come June 3, Lucas neither attended the closing
nor paid the costs. As a result, the purchase agreement expired, and a lawyer
executed a termination agreement on June 11.
After the deal expired, the Badgers tried to remove Defendants from their
property. On June 8, Jason texted Lucas demanding that they leave by June 15.
Jason texted again three days later, “Were you able to start moving your stuff
off”? Id. at 11. Despite receiving those messages, Lucas didn’t respond, nor did
Defendants leave the property.
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So the Badgers sued to evict Lucas. Lucas received a summons and
notice of a hearing. But the Badgers had filed in the wrong court, and the case
was soon dismissed.
Next, the Badgers contacted the New Mexico State Police and asked them
to serve Defendants with a trespass notice. An officer visited the compound,
but Lucas told him that the court had dismissed the eviction lawsuit and that
Lucas had “inherited the land from his creator.” JR. vol. III at 203. So the
officer left without serving the notice and told the Badgers to contact the
sheriff’s office, which was “the lead investigating agency in the apprehension
of” Siraj. Id. at 202. The Badgers did just that, asking the sheriff’s office to
remove Defendants from Lot 28. But because officers were still investigating
Siraj, they held off.
On August 3, the sheriff’s office secured a warrant to search Lot 28 for
Siraj and Abdul Ghani and to check on the other children’s welfare. During the
search, officers arrested Siraj and Lucas and removed the others from the
Badgers’ property. 6 From the compound, the officers seized ten firearms, large
amounts of ammunition, twelve high-capacity magazines, and a bulletproof
vest. The Badgers then regained possession of Lot 28. A few days later, armed
with another search warrant, officers found Abdul Ghani’s body hidden in a
tunnel under the compound.
6
Officers arrested Siraj based on an arrest warrant issued by the Georgia
juvenile court, and they arrested Lucas for harboring a fugitive (Siraj).
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2. Motion & Ruling
Defendants moved to suppress evidence seized during the search. They
argued that the search-warrant affidavit lacked probable cause because it didn’t
establish a nexus between Lot 28 and the persons to be seized (Siraj and Abdul
Ghani). Relatedly, they argued that the affidavit contained material
misstatements and omissions, warranting a hearing under Franks v. Delaware,
438 U.S. 154 (1978). They also argued that the good-faith exception didn’t
apply, that the seizure exceeded the warrant’s scope, and that the warrant was
overly broad.
The government opposed the motion. It argued that Defendants lacked
Fourth Amendment standing to challenge the search and that their motion failed
on the merits. Defendants replied that they had standing because officers had
searched their home. They also emphasized that the Badgers had let them stay
on the property and never obtained a court order directing them to leave.
After an evidentiary hearing and additional briefing, the district court
denied the motion, concluding that Defendants lacked Fourth Amendment
standing. United States v. Leveille, No. 18-cr-2945, 2023 WL 3737334, at *1
(D.N.M. May 31, 2023). First, the court held that when officers searched the
compound, Defendants had no property interest in Lot 28. Id. at *6. It
explained that Defendants hadn’t shown that they had a lease agreement with
the Badgers or that any implied tenancy survived the Badgers’ revoking
Defendants’ permission to stay on the lot. Id. at *7–8.
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Second, the court ruled that any expectation of privacy in the lot wasn’t
objectively reasonable. Id. at *8. It emphasized that Defendants lacked a
property interest in the land, that the Badgers had revoked Defendants’
permission to stay there, and that Defendants “were notified in several ways”
that they were no longer welcome. Id. at *9.
B. Standard of Review
When reviewing the denial of a motion to suppress, “we view the
evidence in the light most favorable to the government and accept the district
court’s factual findings unless clearly erroneous.” United States v. Cates,
73 F.4th 795, 805 (10th Cir. 2023) (citation modified). A factual finding “is
clearly erroneous only if it is without factual support in the record or if,” after
reviewing the evidence, we are “left with a definite and firm conviction that a
mistake has been made.” United States v. Craine, 995 F.3d 1139, 1157 (10th
Cir. 2021) (citation omitted).
We review de novo a district court’s “[u]ltimate determinations of
reasonableness concerning Fourth Amendment issues and other questions of
law.” Cates, 73 F.4th at 805 (citation omitted). That includes whether
Defendants had an objectively reasonable expectation of privacy in Lot 28. See
United States v. Guzman, 149 F.4th 1132, 1141 (10th Cir. 2025).
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C. Legal Framework
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV.
Under the exclusionary rule, the government can’t introduce evidence
obtained in violation of the Fourth Amendment. Davis v. United States,
564 U.S. 229, 231–32 (2011). But “to challenge the lawfulness of a search and
seizure . . . a defendant must first establish his or her standing to do so.”
Guzman, 149 F.4th at 1139 (citation omitted). Fourth Amendment standing asks
whether “the search at issue violated the rights of the particular defendant”
invoking the exclusionary rule. Id. (citation omitted).
A defendant can establish Fourth Amendment standing in two ways.
First, a defendant has standing under a “traditional property-based” theory if
officers “gain[ed] evidence by physically intruding on constitutionally
protected areas.” Id. at 1139 n.6 (citation omitted). Second, a defendant has
standing under a legitimate-expectation-of-privacy theory if he establishes
“(1) a subjective expectation of privacy in the property searched, and (2) that
society would recognize that expectation of privacy as objectively reasonable.”
Id. at 1139 (citation omitted).
“[A] person need not always have a recognized common-law property
interest in the place searched to be able to claim a reasonable expectation of
privacy in it.” Byrd v. United States, 584 U.S. 395, 404 (2018). Still, “property
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concepts” can “aid[]” a court in assessing whether a defendant has a reasonable
expectation of privacy. Id. Along those lines, occupying property without
permission “is presumptively unjustified,” United States v. Lowe, 117 F.4th
1253, 1261 (10th Cir. 2024) (citation omitted), and “a person lacks an
objectively reasonable expectation of privacy in a place in which his presence
is wrongful,” Guzman, 149 F.4th at 1140 (citation modified).
D. Analysis
Defendants had the burden of establishing their standing to challenge the
search of Lot 28. Id. at 1139. They didn’t carry that burden.
Defendants argue that they had a reasonable expectation of privacy in Lot
28 for two related reasons: they were Lot 28’s tenants and the Badgers never
evicted them. 7 Starting with tenancy, they assert that because the Badgers let
them live on Lot 28 pending the land transfer, they had an implied tenancy
agreement with the Badgers. Though the deal fell through, they say that they
7
Defendants don’t argue a “traditional property-based” theory for
standing. Guzman, 149 F.4th at 1139 n.6. Instead, they rely on “property
concepts” to argue that their expectation of privacy was reasonable. Lucas Op.
Br. at 16 (citation omitted).
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stayed on the property under an implied tenancy at will. 8 And in their view,
their at-will tenancy gave them a reasonable expectation of privacy in Lot 28. 9
But Defendants were more like trespassers than tenants. It’s undisputed
that the Badgers owned Lot 28 and that the parties never executed the purchase
agreement to swap lots. Leveille, 2023 WL 3737334, at *6. The district court
also found not only that the Badgers had