United States v. Dumeisi, Khaled ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1882
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KHALED ABDEL-LATIF DUMEISI,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 664—Suzanne B. Conlon, Judge.
____________
ARGUED MAY 10, 2005—DECIDED SEPTEMBER 15, 2005
____________
Before FLAUM, Chief Judge, and KANNE and WILLIAMS,
Circuit Judges.
KANNE, Circuit Judge. In the years leading up to the
2003 invasion of Iraq, Palestinian Khaled Abdel-Latif
Dumeisi was in close contact with the Iraqi Mission to the
United Nations (“IMUN”). Dumeisi’s relationship with the
IMUN (as well as his 1999 trip to Baghdad) was ostensibly
related to the publication of his Arabic language newspaper
in a Chicago suburb. Certain evidence obtained by the FBI,
however, suggested that Dumeisi was actually acting as an
agent of Saddam Hussein’s Iraqi regime. He was ultimately
tried by a jury and convicted for acting in the United States
as an agent of a foreign government without prior notifica-
tion to the Attorney General, conspiracy to do so, and
perjury. Dumeisi appeals, alleging a number of evidentiary
2 No. 04-1882
and other errors by both the trial court and the Foreign
Intelligence Surveillance Act (“FISA”) court. For the
reasons stated herein, we affirm.
I. History
Dumeisi was born in Palestine in 1946. In 1948, he moved
to Jordan, then to Kuwait in 1970. Finally, in March 1993,
Dumeisi emigrated to the United States. Thereafter, he
began publishing an Arabic language newspaper out of
Burbank, Illinois. The paper was initially called “Palestine,”
but was more recently titled “Al-Mahjar,” which translates
to “place of immigration.” Dumeisi received revenue from
advertisers and distributed new issues of the free paper
every three or four weeks. Al-Mahjar primarily contained
articles about Middle Eastern politics. Dumeisi published
a number of articles in support of Saddam Hussein and
against the Iraqi Opposition; Dumeisi felt that the former
leader of Iraq was the only Arab leader who had unwaver-
ingly supported the Palestinian cause. Dumeisi sometimes
received threats and harassment from Opposition sympa-
thizers.
A. Contact with Iraqi Mission to the United Nations
In 1996, Dumeisi hired Kawther Al-Khatib to assist with
the newspaper. Although Al-Khatib was a Palestinian, she
spoke the Iraqi Arabic dialect fluently. Dumeisi directed Al-
Khatib to contact the IMUN in New York City and to notify
the personnel there that Al-Mahjar was “at their disposal”
and would be interested in publishing materials or articles
supplied by the IMUN.
After Al-Khatib’s initial contact, Dumeisi developed a
close relationship with the IMUN and was a guest there on
several occasions. On one of his IMUN-sponsored visits to
New York, Dumeisi met and interviewed the Foreign
No. 04-1882 3
Minister of Iraq. In 1999, at the invitation of the Foreign
Minister, Dumeisi traveled to Baghdad for Saddam
Hussein’s birthday party. After this visit, Dumeisi spoke
with Shifiq El-Khalil, an acquaintance since 1992 with
whom he shared office space. According to El-Khalil,
Dumeisi said that he had been in Iraq to garner support for
his newspaper and that the people he met were interested
in having him monitor and report on the activities of the
Iraqi Opposition in the United States. Shortly after he
returned from Baghdad, Dumeisi took another trip to the
IMUN in New York. He returned with $3000, which he told
El-Khalil he had received from the IMUN. Dumeisi also
stated that the IMUN would be calling him at 1:00 P.M.
every Thursday to give him “instructions.” El-Khalil saw
Dumeisi on his cell phone Thursday afternoons, and
Dumeisi once told El-Khalil that his IMUN contact placed
calls from a restaurant rather than from the IMUN because
“it was private and secret conversation.”
Dumeisi also discussed his trip to Baghdad with Al-
Khatib. He explained that his visit was facilitated by the
Iraqi Embassy in Amman, Jordan, so that his passport
would not be stamped with an Iraqi entry visa. Dumeisi
also told her that he had been met by two members of the
Mukhabbarat, the Iraqi Intelligence Service (“IIS”), who
had pre-set a full schedule of activities for him while he was
in Baghdad. Some time after his return to Illinois, Dumeisi
and Al-Khatib were watching an Arab film in which an
intelligence officer was putting a microphone in the handset
of a telephone. Dumeisi remarked that the technique was
quite primitive and proceeded to show Al-Khatib a silver
pen that could be used as a camera and a tape recorder.
Dumeisi said that he had received the pen in Baghdad and
that he had used it in an Illinois meeting with a member of
the Iraqi Opposition. Al-Khatib also observed Dumeisi on
his Thursday afternoon phone calls. On one occasion when
she tried to overhear Dumeisi’s end of the conversation, she
4 No. 04-1882
managed only to hear him say, “Lunch is ready. Let the
group come.” When she asked him about lunch, Dumeisi
responded that it was none of her business.
In July 2000, Dumeisi made the acquaintance of former
ISS officer Hazim El-Dilemi at the residence of the Iraqi
Ambassador to the U.N. in New York. El-Dilemi’s cousin,
Kassim Mohammed, was an IIS officer stationed at the
IMUN. Mohammed introduced Dumeisi and El-Dilemi.
Dumeisi described Al-Mahjar as a “newspaper for Iraq” and
asked Mohammed for financial help for the paper.
In April 2001, at the IMUN celebration of Saddam
Hussein’s birthday, Dumeisi gave a speech praising Saddam
Hussein. After the speech, Dumeisi repaired to the base-
ment of the IMUN with El-Dilemi, Mohammed, and several
IMUN personnel. Dumeisi again asked Mohammed for
financial assistance. Dumeisi indicated that he had been
approached by other groups offering him more money to
write articles for them but that he had refused, telling the
group, “I want to stay with you guys.” Dumeisi was given a
computer, a fax machine, and some articles to be printed in
the next issue of Al-Mahjar. At Mohammed’s request,
Dumeisi provided press identification cards for himself, El-
Dilemi, and IIS officer Saleh Ahman. These identification
cards purported that Dumeisi, El-Dilemi, and Ahman were
employees of Al-Mahjar, and would allow them to gain
entry to meetings inaccessible to a diplomat.
As previously mentioned, it was not uncommon for
Dumeisi to receive angry or even threatening phone calls
from members of the Iraqi Opposition upset by Al-Mahjar’s
pro-Saddam stance. In fact, Dumeisi reported to IMUN
officials that his tires had been slashed as a result of a
particular article that he had written. Office-mate El-Khalil
once asked Dumeisi why he invited such trouble with his
pro-Saddam, anti-Opposition articles. Dumeisi replied that
it was a means of learning the identity and whereabouts of
No. 04-1882 5
Opposition members. When El-Khalil recommended that
Dumeisi turn over the answering machine tapes with the
threatening messages to the Chicago police, Dumeisi said
that he had sent the tapes to the IMUN.
B. The Baghdad File
One of the most important pieces of evidence in Dumeisi’s
trial has an interesting history all its own. It begins with
Dumeisi’s female part-time employee, named Wafa Zaitawi,
who delivered newspapers for him. Zaitawi also sold long-
distance telephone service for FoneTel.
Fawzi Al-Shammari was a member of the Iraqi Opposi-
tion in the United States. He had been a general in
Saddam’s military, but defected to the United States in
1986 and created an organization, called the Iraqi Officers’
Movement to Save Iraq, dedicated to overthrowing Saddam
Hussein. Al-Shammari was recognized as a possible
successor to Saddam Hussein in the event of a regime
change, and he had received publicity in numerous newspa-
pers, magazines, and television programs in the United
States.
In early 2002, Al-Shammari received a phone call from a
friend of his, who also happened to be a friend of Zaitawi,
suggesting that he call Zaitawi to get a good deal on long-
distance telephone service. This mutual friend also hinted
that Al-Shammari might form a more personal relationship
with Zaitawi. Al-Shammari purchased long-distance service
from Zaitawi, and the two did, in fact, “hit it off” on a
personal level. They exchanged photographs and went so far
as to discuss the possibility of marriage.
In March 2002, Al-Shammari traveled to Chicago, using
the trip as an opportunity to meet Zaitawi in person and to
make two public speeches against Saddam Hussein’s regime
in Iraq. The speeches went well, but the matchmaking did
not. Al-Shammari was “shocked” at Zaitawi’s appear-
6 No. 04-1882
ance—apparently quite different from her photo—and
abandoned all thoughts of marriage when she picked him
up at the airport. Nevertheless, to be diplomatic, he gave
her a necklace, went home with her to meet her daughters,
and took her to his hotel cafeteria for some snacks. Al-
Shammari did not call Zaitawi again after he left Chicago.
As a FoneTel employee, Zaitawi had access to the records
of customers’ calling activity. IIS records recovered in Iraq
after the fall of Baghdad in 2003 contained listings of
telephone numbers called from Al-Shammari’s telephone in
Zaitawi’s handwriting. These documents were part of a
larger collection of IIS records which came to be known as
“the Baghdad File.” The file also contained a report in
Dumeisi’s handwriting on one of Al-Shammari’s anti-
Saddam speeches in Chicago. This report identified Al-
Shammari as the leader of a possible successor government
in Iraq, and contained photographs of Al-Shammari and the
names of two of Al-Shammari’s associates who had accom-
panied him to Chicago.
The Baghdad File contained correspondence between
IMUN personnel in New York and IIS headquarters in
Baghdad. This correspondence referred to Dumeisi as
“Symbol Sirhan”; symbols were considered IIS “sources” as
opposed to fully vetted “agents.” The IMUN communicated
with the IIS regarding Dumeisi’s relationship with Zaitawi
and Zaitawi’s relationship with “the Criminal Fawzi Al
Shammari.” This communication also reported on the plan
prepared for Dumeisi to “start moving on hostile organiza-
tions in Chicago and Detroit, and to monitor the activities
of group leaders for the so-called opposition in The United
States of America.” Among other things, Dumeisi was to
“exploit his friend [Zaitawi], who works for a communica-
tion company” in achieving that goal. This correspondence
preceded a summary of Al-Shammari’s activities in Chicago,
Al-Shammari’s telephone numbers and records, and
Dumeisi’s handwritten report. On May 22, 2002, the IIS
No. 04-1882 7
directed the IMUN to continue to provide information on Al-
Shammari. The IMUN did so in June and August 2002,
with further reports and an indication that Dumeisi was
paid $877.65 for expenses.
John Andrews was the American counterintelligence
officer who obtained the Baghdad File in Iraq. Andrews was
assigned to Baghdad in late May 2003. He was part of the
Iraq Survey Group, an interagency organization created for
the purpose of exploiting documents and locating weapons
of mass destruction following the invasion of Iraq. Andrews
met weekly with Aras Kareem, a member of the Opposition
group known as the Iraqi National Congress (“INC”).
Kareem gave Andrews a number of documents that the INC
had found. Andrews would typically have the documents
translated and, if they did not appear to have a nexus to the
Department of Defense, turn them over to the FBI office in
Baghdad. Andrews testified at trial that Kareem gave him
the Baghdad File, contained in a blue and clear plastic
folder, sometime in June 2003. Having determined that it
contained some U.S. telephone numbers, Andrews turned
it over to the FBI about two days later.
C. FBI Investigation and Searches
The FBI became interested in Dumeisi as early as 1999.
While Dumeisi was in Baghdad, two agents visited his office
asking for him. In November 2002, the FBI questioned
Dumeisi’s friend and former Al-Mahjar contributor Riad
Rabah about Dumeisi. At the FBI’s direction, on April 30
and May 1, 2003, Zaitawi made consensually monitored
calls to Dumeisi from the federal building in Chicago. She
told him that the U. S. Attorney’s office would be question-
ing her under oath and that the FBI had obtained Al-
Shammari’s phone records from Baghdad. When she asked
Dumeisi what he had done with the records and how they
might have gotten to Iraq, Dumeisi told her that he didn’t
know.
8 No. 04-1882
On May 7, 2003, FBI agents conducted consensual
searches of Dumeisi’s office and home. The agents confis-
cated a 1996 calendar covered almost completely with
Arabic writing and phone numbers. A loose piece of paper
inside the calendar contained two columns of five Arabic
words in each. The English translations for these ten words
are as follows: Abu Mohammed, New York, Taking Things,
Important Items, Threat, The Father, Home, Advertise-
ments, The Wedding, and Inoperable Car. At trial, the
government contended that these were code words.
After the searches, Dumeisi complained to his friend
Rabah (who had previously been questioned about Dumeisi)
that the FBI had taken his computers, rendering him
unable to work. Dumeisi also told Rabah that “the
group”—a colloquial way of referring to the IMUN, accord-
ing to Rabah—wanted Dumeisi to gather information on Al-
Shammari. Dumeisi said that he had asked Zaitawi to
gather information, that it had something to do with
telephone numbers, and that he had passed this informa-
tion on to “the group” along with an indication that Al-
Shammari might be the next president of Iraq if Saddam
Hussein’s regime were overthrown.
D. Testimony in Grand Jury and Immigration Proceedings
On September 17, 2002, INS Special Agent Angela
Alonzo-Onate conducted a videotaped interview of Dumeisi
in connection with his application for United States citizen-
ship. Dumeisi was asked if he had “ever worked for, [or] on
the behest of a foreign government,” and he responded
negatively by shaking his head. He was also asked whether
he had “ever failed to register as an agent of a foreign
power[,]” to which Dumeisi responded, “No.” When asked if
he had ever provided services to Iran, Iraq, or North Korea,
Dumeisi stated, “Um, no.” Finally, when asked whether he
had “ever received any property or compensation from a
No. 04-1882 9
foreign power[,]” Dumeisi responded saying, “No.”
Shortly after the FBI searches of his home and office, in
May 2003, Dumeisi testified before a grand jury. He
acknowledged his contacts with the IMUN, claiming they
were related to writing and publishing his newspaper.
Dumeisi testified that Zaitawi gave him Al-Shammari’s
telephone records at some point after Al-Shammari’s visit
to Chicago. Dumeisi further stated that Zaitawi told him Al-
Shammari was a member of the Iraqi Opposition, and that
she wanted Dumeisi to check him out because he had asked
for her hand in marriage. Dumeisi claimed not to know
what happened to the records after he had placed them on
his desk.
E. Trial
On July 16, 2003, Dumeisi was indicted for acting in the
United States as an agent of a foreign government without
prior notification to the Attorney General (in violation of 18
U.S.C. § 951(a)); conspiracy to do so (in violation of 18
U.S.C. § 371); perjury in an immigration proceeding (in
violation of 18 U.S.C. § 1621); and perjury before a federal
grand jury (in violation of 18 U.S.C. § 1623). A jury trial
commenced on January 5, 2004, and a week later Dumeisi
was found guilty on all four counts. He was sentenced to 46
months’ imprisonment.
II. Analysis
Dumeisi appeals his conviction on six different grounds.
First, he argues that the Baghdad File was erroneously
admitted in evidence. Second, he claims that both the
Classified Information Procedures Act (“CIPA”) and the
FISA were misapplied. Dumeisi also asserts that jury
instructions concerning the publication of a newspaper
article and on the law of conspiracy were improper. Finally,
10 No. 04-1882
he argues that there was insufficient evidence against him
for his convictions on all counts. We address each of these
arguments in turn.
A. Admission of the Baghdad File
Dumeisi filed a motion in limine objecting to the admis-
sion of the Baghdad File. He described the Baghdad File as
“the single most important piece of government evidence,”
but asserted that it was unauthenticated hearsay. The
government responded that the Baghdad File was admissi-
ble under Federal Rule of Evidence 807, the residual
exception to the hearsay rule, as well as under Rule 803(6)
(business records), Rule 803(8) (public records), and Rule
801(d)(2)(E) (co-conspirators’ statements). The district court
postponed ruling on this matter until trial was underway,
ultimately admitting the evidence under Rule 807.
We review a district court’s ruling on the admissibility of
evidence for abuse of discretion. See Chemetall GMBH v. ZR
Energy, Inc., 320 F.3d 714, 722 (7th Cir. 2003); United
States v. Sinclair, 74 F.3d 753, 758 (7th Cir. 1996). “Trial
courts have a considerable measure of discretion in deciding
when a hearsay statement fits the residual exception.”
Sinclair, 74 F.3d at 758 (internal quotation omitted). We
reverse only when no reasonable person could take the view
of the trial court. Chemetall, 320 F.3d at 722 (citation
omitted).
We first tackle the question of whether the Baghdad File
was properly authenticated. Federal Rule of Evidence
901(a) requires, as a condition precedent to admissibility,
“evidence sufficient to support a finding that the matter in
question is what its proponent claims.” Authentication can
be established in a variety of ways, including by
“[t]estimony of [a] witness with knowledge . . . that a matter
is what it is claimed to be[,]” Rule 901(b)(1), and by distinc-
tive characteristics such as “[a]ppearance, contents, sub-
No. 04-1882 11
stance, [or] internal patterns . . . taken in conjunction with
circumstances[,]” Rule 901(b)(4). Dumeisi challenges
authentication under both methods.
The government presented “Mr. Sargon”1 as a “witness
with knowledge” who could identify the Baghdad File as
genuine IIS records. Indeed, Sargon had worked for the IIS
from 1979 to 2003 and had advanced in rank to a high
position not spoken on the record but made known to the
jury. He had been assigned to posts outside of Iraq, includ-
ing the United States, and had knowledge of the IIS
missions as well as the organizational structure of the IIS.
Sargon worked in Directorate M4, the group concerned with
external intelligence, from 1999 to 2003. In that role, he
had regular contact and information exchange with the M40
Directorate, which was responsible for “hostile activities,”
or opposition groups within and outside of Iraq. Sargon
unequivocally testified that he could “positively identify
[documents making up the Baghdad File] as Iraqi Intelli-
gence cables, as well as correspondence between the New
York Station and M40.” (Tr. at 406-07.) Sargon was also the
primary witness for the second method of authentication
used by the government; he identified distinctive character-
istics including the style and form of the documents (“in line
with the way that the Iraqi Intelligence service will prefer
to produce a document”), symbols, codes, abbreviations, and
signatures of some fellow IIS officers. (Tr. at 406.) The one
thing Sargon did not identify as a typical trait of IIS
documents was the blue and clear plastic folder in which
the Baghdad File was found.
The “circumstances” which we must consider in conjunc-
tion with the physical characteristics discussed above
include circumstances surrounding discovery. See United
1
Sargon is not the true name of the witness; he testified under
an assumed name pursuant to agreement.
12 No. 04-1882
States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997)
(approving introduction of written materials as sufficiently
authenticated because they were found in an isolated
campsite occupied only by the defendant); United States v.
Arce, 997 F.2d 1123, 1128 (5th Cir. 1993) (finding the fact
that drug ledgers were discovered in known drug traf-
ficker’s home to be evidence of authenticity). In this case,
classified information surrounding the initial discovery of
the Baghdad File bolsters the contention that the file is
what the government purports it to be.
We find this authentication evidence taken together to be
at least as reliable as that relied upon in United States v.
Elkins, 885 F.2d 775 (11th Cir. 1989). In that case, the
defendant was convicted of conspiracy and engaging in
illegal exporting activity involving the sale of two aircraft
to Libya. Id. at 779. The defendant challenged the use of
circumstantial evidence to authenticate two documents
used to show that the aircraft were purchased by the
Libyan military. Id. at 785. The Eleventh Circuit held that
Rule 901 “requires only some competent evidence in the
record to support authentication”; the circumstantial
evidence of where the documents were found (in West
Germany, in the briefcase of a Libyan arms dealer) was
sufficient to authenticate the documents in the absence of
any evidence of adulteration or forgery. Id. at 785-86. Here,
in addition to the circumstantial evidence regarding the
discovery of the file alluded to above, we have Sargon’s
testimony that the file contained genuine IIS documents.
The district court did not abuse its discretion in determin-
ing that the Baghdad File was properly authenticated
under Rule 901.
As stated above, the Baghdad File was admitted under
Federal Rule of Evidence 807, the residual exception to the
hearsay rule. Rule 807 permits evidence to be admitted if it
has sufficient “circumstantial guarantees of trustworthi-
ness.” Sargon’s testimony, already discussed in the context
No. 04-1882 13
of authentication, provides some circumstantial guarantee
of the trustworthiness of the statements in the Baghdad
File. There were also witnesses at trial who positively
identified the handwriting of Zaitawi and Dumeisi on Al-
Shammari’s phone records and on the report related to Al-
Shammari’s Chicago visit, respectively. In addition, we have
Zaitawi’s relationship to Al-Shammari and her access to
telephone records. At oral argument, Dumeisi clarified that
the hearsay statement with which he takes issue is not so
much the individual documents making up the Baghdad
File—he concedes that many of the documents are admissi-
ble and are IIS communications as they purport to be—but
rather with the statement that these documents were found
together, in Baghdad, especially considering the sketchy
circumstances surrounding the file’s whereabouts before it
was given to Andrews.
Dumeisi raises a valid question with respect to the timing
of the discovery of the Baghdad File: if the file was not
obtained by Andrews until June 2002, how could the FBI
question Zaitawi at least a month earlier, in April/May
2002, about Al-Shammari’s telephone records allegedly
found in Iraq? We can only point out that the evidence
presented at trial, including Andrews’s testimony about
when he received the file, is not inconsistent with the FBI
having knowledge from another source, prior to June 2002,
that Al-Shammari’s telephone records had been discovered
in Baghdad. A review of the classified evidence convinces us
that this timing issue is not fatal to the district court’s
finding of authenticity and trustworthiness; the evidence in
fact provides a significant guarantee of trustworthiness that
the Baghdad File was found, Dumeisi’s contributions and
all, in circumstances reinforcing its legitimacy as a coherent
file of IIS documents.
Finally, Dumeisi raises a Sixth Amendment issue with
respect to admission of the Baghdad File, arguing that the
government’s failure to present sufficient “indicia of reliabil-
14 No. 04-1882
ity” regarding the evidence implicates the Confrontation
Clause. See Ohio v. Roberts, 448 U.S. 56, 65-66 (1980)
(excluding hearsay except under certain circumstances
when the evidence is so trustworthy that the rationale for
the hearsay rule is not offended), abrogated by Crawford v.
Washington, 541 U.S. 36 (2004) (regarding only testimonial
evidence). If evidence is not covered by a firmly rooted
exception to the hearsay rule, it must possess particularized
guarantees of trustworthiness at least as reliable as
evidence admitted under a firmly rooted hearsay exception.
See Idaho v. Wright, 497 U.S. 805, 821 (1990). Because this
argument was not raised in the district court, our review is
for plain error; we reverse only if there is a clear or obvious
error that affected the outcome of the trial. See United
States v. Shearer, 379 F.3d 453, 456 (7th Cir. 2004).
Dumeisi correctly points out that the residual hearsay
exception is not a firmly rooted exception for Confrontation
Clause purposes. Cf. Wright, 497 U.S. at 817. But in
determining that the Baghdad File was admissible, the
district court expressly considered the same circumstantial
guarantees of trustworthiness that justify admission of
business records and official records without violating the
Confrontation Clause. For example, the court relied upon
Sargon’s testimony that IIS officers had a duty to accurately
record their own activities and the information received
from their sources. The lack of a motive to falsify informa-
tion and the fact that written records are often more
reliable than the potentially hazy memory of the recorder
are the classic reasons for excepting business records and
official records from the hearsay rule—in other words, for
making them firmly rooted hearsay exceptions. See
Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996); see also
United States v. Klinzing, 315 F.3d 803, 810 (7th Cir. 2003).
Thus, the district court did not violate the Confrontation
Clause in admitting the Baghdad File.
No. 04-1882 15
It was within the court’s discretion to admit the Baghdad
File under Federal Rule of Evidence 807. The government
argues that it would have been proper to admit the file
under several other hearsay exceptions as well, including
the business records exception in Rule 803(6) and the public
records exception in Rule 803(8); however, because we have
already found the evidence admissible under Rule 807, it is
unnecessary to analyze its admissibility under these rules.
Once the court admitted the Baghdad File in evidence, it
was within the purview of the jury to assign the file its
proper probative weight. See, e.g., United States v. Hedman,
630 F.2d 1184, 1197-98 (7th Cir. 1980).
B. CIPA Substitution
About a month before Dumeisi’s trial began, on December
8, 2003, the government provided him with materials
pursuant to the Jencks Act, 18 U.S.C. § 3500. Included in
these materials was the grand jury testimony of El-Dilemi,
the former IIS officer and government witness who testified
at trial about the “spy pen” and his observations of Dumeisi
at the IMUN. On a single page of this transcript, El-Dilemi
made a statement referencing classified information, which
the government had inadvertently failed to redact.
Dumeisi’s counsel dutifully returned its copies of the page,
but, believing that the classified statement was helpful to
Dumeisi, filed both a motion for a pre-trial conference under
§ 2 of CIPA, 18 U.S.C. App. 3, and a motion to dismiss the
indictment for discovery violations. On December 31, 2003,
the government filed its CIPA § 6 notice relative to the El-
Dilemi testimony and requested a protective order prohibit-
ing disclosure of classified information under § 4 of CIPA.
After an in camera examination of the classified material,
the district court denied Dumeisi’s request for a § 2 confer-
ence and found that the government had not violated its
discovery obligations under Brady v. Maryland, 373 U.S. 8316 No. 04-1882
(1976). The court also found that the government’s proposed
unclassified summary2 was sufficient so as not to deprive
Dumeisi of any potential impeachment value that the
information had under Giglio v. United States, 405 U.S. 150(1972).
Dumeisi argues that CIPA was misapplied, and that his
resulting position with respect to the information at issue
deprived him of his rights to confrontation, effective
assistance of counsel, and a fair trial. Both parties invited
this court to review the classified information in order to
evaluate the district court’s decision regarding disclosure of
material for abuse of discretion. See United States v.
O’Hara, 301 F.3d 563, 569 (7th Cir. 2002). We review
questions of CIPA interpretation de novo. Id. at 568.
The CIPA’s fundamental purpose is to “protect[ ] and
restrict[ ] the discovery of classified information in a way
that does not impair the defendant’s right to a fair trial.” Id.It is essentially a procedural tool that requires a court to
rule on the relevance of classified information before it may
be introduced. See United States v. Wilson, 901 F.2d 378,
2
The unclassified summary of information concerning El-Dilemi
follows in its entirety:
The United States Government has provided Hazim El-
Dilemi and/or his family with the following economic and
non-economic assistance:
1. The government agreed to provide asylum to El-Dilemi
and paid him a total of $1000 in remuneration. The
government also paid for El-Dilemi’s airplane ticket to
the United States. Upon his arrival in the United States,
the government provided El-Dilemi with a receipt for an
application for a Social Security number that had been
obtained for him.
2. The government also provided immigration assistance
to relatives of El-Dilemi.
No. 04-1882 17
379 (4th Cir. 1990). As Dumeisi concedes, the CIPA does not
create any discovery rights for the defendant. The district
court appropriately utilized § 4 and § 6 of the act to deal
with the use, relevance, and admissibility of the evidence at
issue. Section 2 provides for a pretrial conference to estab-
lish timetables for discovery and for the procedures estab-
lished by other sections of CIPA (i.e., the alternative
procedures for disclosing classified information in § 6); the
court found it unnecessary to conduct this conference, given
that the procedures were already underway. This did not
violate Dumeisi’s constitutional rights; he received a
summary of the relevant information, which the court found
would provide him with “substantially the same ability to
make his defense as would disclosure of the specific classi-
fied information,” several days prior to trial. To the extent
he takes issue with the fact that this information was
received only days before trial, we note that “[d]elayed
disclosure of evidence does not in and of itself constitute a
Brady [or Giglio] violation.” O’Hara, 301 F.3d at 569.
Having reviewed the classified evidence, we find that the
district court did not abuse its discretion in substituting the
government’s summary of classified information regarding
El-Dilemi for the actual information. Nor did the court err
in denying Dumeisi’s motion for discovery sanctions against
the government; the material does not implicate Brady.
Finally, the government’s summary related to El-Dilemi did
not deprive Dumeisi of its potential impeachment value
under Giglio.
C. Surveillance under the FISA
On August 28, 2003, Dumeisi filed a motion seeking
disclosure of any materials related to surveillance under the
FISA, 50 U.S.C. §§ 1801-1811, 1821-1829. The district court
held a hearing on the motion, at which the government
stated that both electronic and physical surveillance had
18 No. 04-1882
been conducted on Dumeisi under the FISA. The govern-
ment submitted the materials relied upon by the Foreign
Intelligence Surveillance Court (“FISC”), and after ex parte,
in camera review, the district court concluded that the FISA
surveillance was lawful and that disclosure of the materials
would endanger national security. The court therefore
denied Dumeisi’s motions for disclosure of the materials
and for suppression of the fruits of all surveillance con-
ducted under the FISA. Dumeisi appeals this decision,
expressing concern that the facts presented to the FISC in
support of the application for surveillance consisted solely
of his First Amendment-protected activities as a journalist.
We review the district court’s ruling on the propriety of the
FISC’s orders de novo. Cf. In re Grand Jury Proceedings of
the Special April 2002 Grand Jury, 347 F.3d 197, 204-05
(7th Cir. 2003).
The FISC must make certain findings before authorizing
electronic or physical surveillance. See 50 U.S.C. §§ 1805(a),
1824(a)(3)(A). For targets that are “United States persons,”
such as Dumeisi, the FISC must find:
(3) on the basis of the facts submitted by the applicant
there is probable cause to believe that—
(A) the target of the electronic surveillance is a foreign
power or an agent of a foreign power: Provided, That no
United States person may be considered a foreign power
or an agent of a foreign power solely upon the basis of
activities protected by the first amendment to the
Constitution of the United States[.]
50 U.S.C. § 1805(a)(3). We have reviewed the classified
materials relied upon by the FISC and conclude that the
government provided probable cause that Dumeisi was an
agent of a foreign power entirely independent of any of his
journalistic activities. The requirements of §§ 1805(a)(3)
and 1824(a)(3) were properly fulfilled, and the district
court’s ruling must be affirmed.
No. 04-1882 19
D. Jury Instructions on Newspaper Articles
At trial, Dumeisi requested Defendant’s Instruction No.
5: “It is not a violation of 18 U.S.C. § 951(a) to publish a
news article.” The court refused this instruction, instead
giving the following:
The First Amendment to the Constitution protects the
right to free speech and the freedom of the press. This
means that individuals are permitted to express views
that are controversial or even despicable. The speech
that Mr. Dumeisi gave at the Iraqi Mission and news-
paper articles he authored or published are protected by
the First Amendment. The speech and newspaper
articles, as well as Mr. Dumeisi’s opinion and political
views, are to be considered only insofar as they may
pertain to issues of motive and intent.
(Tr. at 1177-78.) Dumeisi contends that the failure to give
his instruction created the “very real probability that the
jury’s verdict rested on the sole basis that Dumeisi printed
articles in his newspaper.” The government, for its part,
stated in a hearing before the district court that Dumeisi’s
proposed instruction would be “a bit confusing, because one
of the allegations [made against Dumeisi] is that . . . he
acted . . . by publishing certain news articles that would
enable him to identify opposition members.” (Tr. at 1031.)
We review the district court’s refusal to give a theory of
defense instruction de novo. United States v. Buchmeier,
255 F.3d 415, 426 (7th Cir. 2001).
We find nothing improper in the district court’s instruc-
tions with respect to publishing a newspaper article. The
limiting instructions to the jury on First Amendment
protection—which, we note, were repeatedly given through-
out the trial—stated that Dumeisi should not, and legally
could not, be convicted simply for publishing unpopular or
even “despicable” opinions. A jury is generally presumed to
20 No. 04-1882
follow limiting instructions. See, e.g., United States v.
Smith, 308 F.3d 726, 739 (7th Cir. 2002). Given that an
element of § 951 is acting “subject to the direction or control
of a foreign government or official,” 18 U.S.C. § 951(d), and
there was evidence suggesting that Dumeisi published
certain articles at the behest of the IIS, we find this
publication relevant and agree with the district court that
Dumeisi’s proposed instruction would have been “mislead-
ing as to the law.” (Tr. at 1031.) Refusing Dumeisi’s pro-
posed instruction did not deprive him of a fair trial; the
instruction given meets the concern he raised at trial that
his First Amendment-protected speech would be used as the
sole basis for a guilty verdict. See Buchmeier, 255 F.3d at
426; United States v. Boykins, 9 F.3d 1278, 1287 (7th Cir.
1993).
E. Jury Instructions on Conspiracy
Dumeisi also appeals the instructions given to the jury on
the law of conspiracy. Dumeisi was convicted both of
violating 18 U.S.C. § 951, which provides criminal liability
for anyone “other than a diplomatic or consular officer or
attaché, [who] acts in the United States as an agent of a
foreign government without prior notification to the
Attorney General,” and of conspiracy to violate the same.
He argues that the IIS agents alleged to have conspired
with him were all diplomatic attachés and thus were legally
incapable of conspiring to violate this statute. As we have
stated, “[t]he elements of the crime [of conspiracy] are not
satisfied unless one conspires with at least one true co-
conspirator.” United States v. Mahkimetas, 991 F.2d 379,
383 (7th Cir. 1993) (citation omitted). To that end, Dumeisi
proposed two different jury instructions related to the
conspiracy count in his indictment. On appeal, he asserts
that the district court’s refusal of these instructions was
wrong as a matter of law. Again, we review the district
No. 04-1882 21
court’s refusal to give a theory of defense instruction de
novo. Buchmeier, 255 F.3d at 426.
The first proposed instruction indicated that a diplomat
need not inform the Attorney General that he is an agent of
a foreign government. Although a correct statement of law,
this instruction is irrelevant to Dumeisi’s case; no argument
was made that he was exempt from the statute. Thus, the
district court’s decision to refuse this instruction was
proper.
Defendant’s Proposed Instruction No. 6, more closely
related to the argument we summarized above, stated:
To be guilty of conspiracy, the defendant must have an
agreement with at least one person. In considering
whether there was at least one other person who was a
party to the alleged agreement, you must exclude as
potential parties any person acting entirely outside the
United States and any person who was a diplomatic or
consular officer or attache.
The district court was unpersuaded that this instruction is
a correct statement of the law. We agree that it is not. The
rule that a conspiracy cannot be established between one
criminally-minded individual and a government agent or
informer was established to combat the risk of “ ‘the manu-
facturing’ of crime which might occur if the presence of
government agents could create indictable conspiracies.”
Mahkimetas, 991 F.2d at 383 (citation omitted). That risk
is not present in this case. On the other hand, at least one
of the risks that underlie criminal punishment for conspir-
acy—that of “concerted action shrouded in secrecy”—is
entirely present here.
Only one case interpreting § 951 (actually, its predeces-
sor, 22 U.S.C. § 288) has been cited by the parties. In
United States v. Melekh, the District Court for the Northern
District of Illinois found that a U.N. employee could be
convicted of conspiracy to violate the statute, even though
22 No. 04-1882
he himself could not have been prosecuted for failure to
register. 193 F. Supp. 586, 592 (N.D. Ill. 1961). We agree
with the analysis by the district court in that case that the
purpose of the act “is to grant a personal exemption to such
person as to his own liability for registration. There is no
reason to suppose that carte blanche privileges were
thereby to be accorded the immune person’s activities in
respect to third parties not so immune.” Id. In other words,
if there was a real agreement between Dumeisi and IIS
agents for Dumeisi to act in the United States as an agent
of Iraq without notifying the Attorney General, the diplo-
matic titles held by those IIS agents cannot save Dumeisi
from being prosecuted for the conspiracy. The refusal of the
district court to charge the jury with Dumeisi’s proposed
jury instruction was proper.
F. Sufficiency of the Evidence
Dumeisi’s final contention is that the evidence elicited at
trial was insufficient as a matter of law to support his
conviction for all counts. In reviewing a sufficiency chal-
lenge, we view all evidence in the light most favorable to
the government, defer to the credibility determinations
made by the jury, and reverse only when no rational trier
of fact could find the essential elements of the crime beyond
a reasonable doubt. United States v. Thomas, 284 F.3d 746,
751 (7th Cir. 2002); United States v. Moore, 115 F.3d 1348,
1363 (7th Cir. 1997).
We first address the conviction for violating 18 U.S.C.
§ 951, which provides criminal liability for “[w]hoever . . .
acts in the United States as an agent of a foreign govern-
ment without prior notification to the Attorney General[.]”
§ 951(a). The term “agent of a foreign government” is
defined in § 951(d) as “an individual who agrees to operate
within the United States subject to the direction or control
of a foreign government or official[.]” Dumeisi argues that
No. 04-1882 23
the evidence at trial established nothing more than that he
gathered publicly accessible information, published news
articles, and communicated with foreign consular officials.
To the contrary, there is ample evidence that Dumeisi acted
knowingly at the behest of the IIS.
First of all, the correspondence amongst IIS officials
contained in the Baghdad File—the trustworthiness of
which we have discussed at length—indicates that Dumeisi
received payments from the IIS and that he received
directions from that organization (as to how to use Zaitawi,
for example). Further evidence that Dumeisi was an “agent”
of Iraq is his handwritten report on Al-Shammari’s activi-
ties in Chicago and the telephone records, which were,
drawing all inferences in favor of the government, trans-
ferred to someone within the IIS in Iraq. In addition to the
Baghdad File, there was evidence that Dumeisi initiated
contact with the IMUN and offered to publish articles
supplied by them; that he received training and was asked
to report on Iraqi Opposition activities in the United States;
that he had telephone conferences with someone from the
IMUN every Thursday afternoon to receive instructions;
that he was given a pen like those used by the IIS that
could be used as a camera and a tape recorder; that he
printed provocative articles in his paper in order to learn
more about the Opposition; and that he produced false press
passes for IMUN employees to facilitate their access to
places which they could not, as diplomats, have gone.
Dumeisi’s protestations notwithstanding, it is irrelevant
that the IIS itself considered Dumeisi a “source” as opposed
to a fully vetted “agent.” Congress’s definition of “agent” for
the purpose of § 951 is the only one at issue here, and
ample evidence was elicited at trial to satisfy that defini-
tion.
Dumeisi’s final argument with respect to the § 951 charge
is that he did not “knowingly” violate the statute because he
did not have knowledge of the requirement to register. He
24 No. 04-1882
did not make this argument at trial, and the instruction
given by the district court—without objection—required the
jury to find that Dumeisi “acted knowingly and that he
knew that he had not provided notification to the Attorney
General prior to acting in the United States on behalf of
Iraq.” (R. at 105.) Knowledge of the requirement to register
is not an element of § 951.
Dumeisi makes essentially the same “knowledge” argu-
ment with respect to the conspiracy count. Again, it is
immaterial whether the IIS co-conspirators had knowledge
of the registration requirement set forth in § 951. We have
already discussed the propriety of the district court’s
instructions on the law of conspiracy, and there was
sufficient evidence elicited at trial to show agreement
between Dumeisi and others to violate the law.
The jury found Dumeisi guilty of lying under oath in an
immigration proceeding, in violation of 18 U.S.C. § 1621,
and before a grand jury, in violation of 18 U.S.C. § 1623.
The elements of perjury are (1) testimony under oath before
a competent tribunal, (2) in a case in which United States
law authorizes the administration of an oath, (3) false
testimony, (4) concerning a material matter, (5) with the
willful intent to provide false testimony. United States v.
Chaplin, 25 F.3d 1373, 1377 (7th Cir. 1994).
In the immigration proceeding, Dumeisi responded
negatively to the following questions: “Have you ever
worked for, on the behest of a foreign government?”; “Have
you ever failed to register as an agent of a foreign power?”;
and “Have you ever received any property or compensation
from a foreign power?” Whether Dumeisi had knowledge of
the registration requirement is of no importance in evaluat-
ing whether his answers were knowing falsehoods; his
knowing receipt of money and property (including a com-
puter, fax machine, and cash payments) from IMUN
representatives, for example, renders his answer to the
No. 04-1882 25
third question false regardless of any requirement to
provide Attorney General notification. Likewise, Dumeisi
testified before the grand jury that he had no knowledge of
what he did with the phone records on Al-Shammari given
to him by Zaitawi. Evidence produced at trial was sufficient
for a rational juror to find beyond a reasonable doubt that,
as he acknowledged to his friend Rabah, Dumeisi in fact
obtained the records from Zaitawi at the request of IMUN
personnel and then passed them on to the IMUN.
III. Conclusion
We conclude that the district court properly admitted the
Baghdad File in evidence, that the jury instructions given
on newspaper publication and on the law of conspiracy were
proper, and that the CIPA and the FISA were properly
applied to Dumeisi’s case. There was sufficient evidence to
convict Dumeisi on all counts. The jury’s verdict will not be
disturbed, and the conviction is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-15-05