United States v. Wright

United States Court of Appeals
For the First Circuit
No. 18-1039
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID WRIGHT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta and Barron, Circuit Judges.
Michael Tumposky, with whom Jessica Hedges, James Haynes,
Forest O'Neill-Greenberg, and Hedges & Tumposky, LLP were on brief,
for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, and Pamela Gaulin,
Harvard Law School, were on brief, for appellee.
August 28, 2019
BARRON, Circuit Judge. Beginning sometime in 2014,
David Wright, Nicholas Rovinski, and Usaamah Rahim -- Wright's
uncle -- engaged in discussions about the Islamic State of Iraq
and Syria ("ISIS"), which the United States has designated as a
Foreign Terrorist Organization under § 219 of the Immigration and
Nationality Act. See 8 U.S.C. § 1189; 80 Fed. Reg. 58,804, 58,804
(Sept. 30, 2015).1 The discussions allegedly involved a "high-
profile" ISIS spokesperson and concerned a plot to fulfill a fatwa
(ISIS decree) issued by "ISIS leaders" to behead Pamela Geller -
- an American citizen living in this country -- for insulting the
Prophet Mohammed. The discussions also concerned plans to kill
police officers in the United States and to establish a "martyrdom"
cell in this country.
Federal Bureau of Investigation ("FBI") agents
electronically monitored the three men's communications, including
through surveillance conducted pursuant to the Foreign
Intelligence Surveillance Act ("FISA"). See 50 U.S.C. § 1801. On
June 2, 2015, after FBI agents intercepted a call between Rahim
and Wright, they confronted Rahim at a bus stop. Rahim then drew
1 The Islamic State of Iraq and the Levant was officially
designated as a Foreign Terrorist Organization in December 2004,
but the Secretary of State amended its designation in September
2015 to reflect the fact "that the Islamic State of Iraq and the
Levant uses the additional aliases the Islamic State, ISIL, and
ISIS." Id. Both parties refer to the organization as "ISIS," so
we do as well.
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a thirteen-inch knife, which led the agents to shoot him when he
refused to drop it. He died from his injuries.
Less than a month later, Wright was indicted for
conspiracy to provide material support to ISIS, in violation of 18
U.S.C. §§ 2339B(a)(1)-(2) ("Count One"); conspiracy to obstruct
justice, in violation of 18 U.S.C. § 371 ("Count Two"); and
obstruction of justice, in violation of 18 U.S.C. §§ 1519 and 2
("Count Three"). An April 2016 superseding indictment added a
count for conspiracy to commit acts of terrorism transcending
national boundaries, in violation of 18 U.S.C. §§ 2332b(a)(2) and
(c) ("Count Four"); and another February 2017 superseding
indictment added a count of obstruction of justice, in violation
of 18 U.S.C. § 1519 ("Count Five").
Following a fourteen-day trial, the jury convicted
Wright on all counts. The District Court sentenced Wright in
December 2017 to twenty-eight years' imprisonment and lifetime
supervised release. The District Court sentenced Wright to a total
of twenty years' imprisonment on Counts One, Three, and Five, to
be served concurrently with a sentence of five years' imprisonment
on Count Two. The District Court sentenced Wright to eight years'
imprisonment on Count Four to be served consecutively with the
twenty-year prison sentence for Counts One, Two, Three, and Five.
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Wright now appeals his convictions. We affirm Wright's
convictions on Counts Two through Five. We vacate his conviction
on Count One.
I.
We begin by considering Wright's challenges to the
District Court's order that denied various pretrial motions to
suppress evidence. Wright does not make a clear argument as to
how his challenge to the District Court's denial of each of these
motions to suppress relates to each of his convictions.
Nevertheless, we proceed on the understanding that the evidence
implicated in each motion would, if suppressed, affect his
convictions on all counts.
"In reviewing a challenge to the district court's denial
of a motion to suppress, we view the facts in the light most
favorable to the district court's ruling, and review the district
court's findings of fact and credibility determinations for clear
error." United States v. Peake, 804 F.3d 81, 86 (1st Cir. 2015)
(internal quotation marks omitted). We review legal issues,
including preserved constitutional claims and a district court's
determination of whether the government exceeded the scope of a
warrant, de novo. See id.; United States v. Brown, 669 F.3d 10,
19 (1st Cir. 2012); United States v. Volungus, 595 F.3d 1, 4 (1st
Cir. 2010).
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A.
We first address Wright's challenge to the District
Court's denial of his motion to suppress the fruits or derivatives
of any electronic surveillance that the FBI conducted pursuant to
FISA. On appeal, Wright argues only that the District Court
"should have suppressed the evidence obtained under FISA's
emergency provision" (the "Emergency Provision") -- insofar as any
evidence was so obtained -- "because that portion of the statute
is unconstitutional or, in the alternative, must be construed
narrowly."
1.
FISA is a federal statute. It establishes, as relevant
here, a mechanism by which federal law enforcement officers may
obtain a judicial order that authorizes the use of electronic
surveillance within the United States when a "significant purpose"
of the surveillance is the collection of "foreign intelligence
information." 50 U.S.C. § 1804(a)(6)(B).
Typically, the process is initiated by the submission of
an application, which must be approved by the Attorney General of
the United States (the "Attorney General"), to the Foreign
Intelligence Surveillance Court ("FISC") for review by one of its
judges. Id. § 1804(a). In response to such an application, FISC
judges may issue an ex parte order that authorizes electronic
surveillance after making, among other things, a finding of
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probable cause that the target of the surveillance is a foreign
power or agent of a foreign power. Id. § 1805(a)(2).
Orders may approve surveillance that targets United
States persons for up to ninety days. Id. § 1805(d)(1). Orders
that approve surveillance that targets non-United States persons
may do so for up to 120 days. Id.
The statute also includes an emergency authorization
provision. See id. § 1805(e). The Emergency Provision permits
the Attorney General to authorize electronic surveillance without
prior judicial approval if the Attorney General "reasonably
determines that an emergency situation exists with respect to the
employment of surveillance to obtain foreign intelligence
information before an order authorizing such surveillance can with
due diligence be obtained" and there is a factual basis supporting
issuance of an order. Id. § 1805(e)(1)(A)-(B). The Emergency
Provision requires that the Attorney General inform the FISC of
its decision to employ emergency surveillance and submit an
application for a judicially approved order, from the FISC,
pursuant to the regular procedure "as soon as practicable," but no
later than seven days after the Attorney General grants the
emergency authorization. Id. § 1805(e)(1)(D).
Information collected through surveillance that has been
authorized by the Attorney General pursuant to the Emergency
Provision can be used in certain "proceeding[s]." Id.
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§ 1805(e)(5). However, such information can be so used only "with
the approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person." Id.
2.
On June 12, 2015, the government filed a notice of intent
"to offer into evidence, or otherwise use or disclose," as relevant
here, "information obtained or derived from electronic
surveillance . . . conducted pursuant to [FISA]." The notice of
intent made no reference to the Emergency Provision.
Wright thereafter filed a motion to compel discovery of
evidence obtained pursuant to FISA. The District Court denied the
motion. The District Court did so after concluding that FISA
"seems to contemplate the filing of . . . an 'ill-informed motion
to suppress.'"
Wright then filed a motion to disclose or suppress such
evidence, in which he "renew[ed] and incorporate[d] by reference
his motion to compel discovery." In that motion, Wright identified
a number of independent and alternative bases for suppression.
In support of his motion, Wright argued that FISA's
general requirement that the acquisition of foreign intelligence
information need only be a "significant purpose" of the search or
surveillance -- and thus need not be the "primary
purpose" -- renders searches and surveillance under that statute
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violative of the First, Fourth, Fifth, and Sixth Amendments to the
United States Constitution. See 50 U.S.C. § 1804(a)(6)(B).
The government filed a memorandum in opposition to
Wright's motion to suppress. The memorandum provided an overview
of the FISA surveillance process, which included a reference to
the Emergency Provision. The memorandum did not, however, indicate
that the government had relied on the Emergency Provision. Rather,
the memorandum argued, in response to Wright's suppression motion,
simply that the government had complied with FISA's requirements
throughout its surveillance. The memorandum also responded to
Wright's federal constitutional argument concerning FISA's general
"significant purpose" requirement, along with the other arguments
for suppression that he had advanced, none of which, as we have
noted, concerned the Emergency Provision.
The District Court held a status conference shortly
after these filings were made, at which it asked the parties a
series of general questions about FISA. One of those questions
was whether the Emergency Provision, as described in the
government's memorandum, raised any federal constitutional issues.
The District Court specifically stated, "I'm not talking about
this case, I'm talking about generally."
Wright then filed a memorandum of law, in which he
addressed the Emergency Provision. Wright first contended that
the Emergency Provision violated the Fourth Amendment. He relied
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on United States v. U.S. Dist. Court for E. Dist. of Mich., S.
Div., 407 U.S. 297 (1972) [hereinafter "Keith"], to contend that
the Emergency Provision is constitutionally deficient because it
does not require judicial approval of surveillance before it
begins. See id. at 316-17 ("Fourth Amendment freedoms cannot
properly be guaranteed if domestic security surveillances may be
conducted solely within the discretion of the Executive Branch.
The Fourth Amendment does not contemplate the executive officers
of Government as neutral and disinterested magistrates.").
Wright argued in the alternative that, to avoid
constitutional problems, the Emergency Provision must be construed
narrowly. With respect to that latter contention, Wright pointed
out that, although Title III of the Omnibus Crime Control and Safe
Streets Act, which authorizes surveillance without prior judicial
approval in "emergency situation[s]," enumerates the specific
"danger[s]" and "activities" that constitute an "emergency
situation," see 18 U.S.C. § 2518(7)(a), FISA does not. Wright
argued that the Emergency Provision should be construed to permit
the Attorney General to authorize emergency surveillance without
prior judicial approval only "when he has evidence that there is
an imminent threat to life, where the surveillance would assist in
the protection of that life, and where a warrant cannot be obtained
in time to stop this imminent threat to life."
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The government filed a response to Wright's memorandum
concerning the Emergency Provision. The government argued that
the Emergency Provision was constitutional. The government
submitted, shortly after filing that response, ex parte filings of
classified materials to the District Court.
The District Court denied Wright's motion. The District
Court explained that its "de novo review reveal[ed] that the
government attorneys here have throughout acted with scrupulous
regard for the rights of the defendant Wright and have conducted
themselves with utmost fidelity within the limited powers accorded
them under [FISA]." The District Court stated that it did not
"agree with each of the government's characterizations, especially
their perception of the imminence of threat posed by the defendant
Wright and his co-conspirators." Nonetheless, the District Court
stated that it found that the "government attorneys ha[d] followed
the established procedures" under FISA with "scrupulous care."
The District Court thus concluded that "[t]here [was] here no basis
to consider the suppression of evidence."
3.
On appeal, Wright abandons the argument that he made
below that concerned FISA's general "significant purpose"
requirement. We also agree with the government that Wright has
waived for lack of development any argument that FISA surveillance
in this case is unconstitutional because of the ex parte nature of
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the surveillance authorization decisions under FISA, and the
resulting inability of Wright to know which evidence, if any, was
used to justify the initiation of any surveillance, or which, if
any, evidence was obtained pursuant to any such surveillance. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Wright
does not, for example, challenge the District Court's observation
that the statute contemplates the filing of "an ill-informed motion
to suppress." Rather, on appeal Wright raises only the two
arguments that he raised below, first challenging the facial
constitutionality of the Emergency Provision and, then, second,
arguing that the provision "need be narrowly construed."
We thus start with Wright's contention on appeal that
the Emergency Provision on its face violates the Fourth Amendment,
because it permits electronic surveillance without prior judicial
approval. In his brief to us on appeal, as in his memorandum
below, Wright relies on Keith to advance that argument. In
particular, Wright stresses that Keith holds that electronic
surveillance in domestic security matters may require an
appropriate ex ante warrant procedure. See Keith, 407 U.S. at
316-17.
But, Wright does not acknowledge that Keith expressly
limits its holding to "only the domestic aspects of national
security" or that Keith "express[es] no opinion as to [] the issues
which may be involved with respect to activities of foreign powers
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or their agents." Id. at 321-22, 324. Nor does Wright confront
the fact that the United States Supreme Court has more recently
characterized Keith as having "implicitly suggested that a special
framework for foreign intelligence surveillance might be
constitutionally permissible." Clapper v. Amnesty Int'l USA, 568
U.S. 398, 402 (2013) (citing Keith, 407 U.S. at 322-23).
In addition, despite the facial nature of his challenge,
Wright does not develop any argument that surveillance conducted
pursuant to the Emergency Provision is unconstitutional no matter
the circumstances involved, notwithstanding that, in ordinary law
enforcement contexts, exigent circumstances may sometimes justify
a warrantless search. See Kentucky v. King, 563 U.S. 452, 460
(2011) ("One well-recognized exception [to the warrant
requirement] applies when the exigencies of the situation make the
needs of law enforcement so compelling that
[a] warrantless search is objectively reasonable under
the Fourth Amendment." (internal quotation marks omitted)). Yet,
insofar as Wright means to bring a facial challenge to the
Emergency Provision based on the mere fact that it permits the
authorization of electronic surveillance without prior judicial
approval, he must, as the government points out, explain
why -- even in dire situations -- advance judicial approval is
always required. See City of Los Angeles v. Patel, 135 S. Ct.
2443, 2450-51 (2015) (noting that the "proper inquiry" for "facial
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challenges to statutes authorizing warrantless searches" is
whether the "searches that the law actually authorizes" are
"unconstitutional in all applications").
We note in this regard that Wright appears to acknowledge
that there are some exigent circumstances in which the
authorization of electronic surveillance without prior judicial
approval -- pursuant to the Emergency Provision or otherwise -- is
constitutionally permissible. Wright argues, for example, that,
to avoid constitutional problems, the Emergency Provision should
be construed in the same narrow fashion that he contends that other
emergency authorization statutes have been construed, such as the
emergency provision in Title III, 18 U.S.C. § 2518(7)(a); see,
e.g., Nabozny v. Marshall, 781 F.2d 83, 85 (6th Cir. 1986); United
States v. Capra, 501 F.2d 267, 277 (2d Cir. 1974), and the
emergency provision in the Stored Communications Act, 18 U.S.C.
§ 2702(b)(8); see, e.g., In re Application of United States for a
Nunc Pro Tunc Order for Disclosure of Telecomm. Records, 352 F.
Supp. 2d 45, 47 (D. Mass. 2005). Given these concessions that the
Emergency Provision can be constitutionally applied in some
circumstances, we reject Wright's Fourth Amendment-based facial
challenge. See Patel, 135 S. Ct. at 2450-51.
Wright does appear to press an alternative argument. He
contends that the Fourth Amendment requires that the Emergency
Provision be construed to permit the Attorney General's emergency
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authorization "power [to] be employed [only] in narrow
circumstances." Specifically, he contends, as he did below, that
the Emergency Provision would be constitutional only if the
statutory phrase, "emergency situation," 50 U.S.C.
§ 1805(e)(1)(A), were construed to require "evidence that there is
an imminent threat to life, where the surveillance would assist in
the protection of that life, and where a warrant cannot be obtained
in time to stop this imminent threat to life."
But, even assuming that the Emergency Provision must be
so narrowly construed, notwithstanding that it authorizes the
collection of foreign intelligence information, Wright makes no
argument that the government could not have met this standard for
an "emergency situation." He also makes no argument that any
evidence traceable to the use of the emergency procedure in
particular would have been prejudicial to him if not suppressed.
Nor does he develop any argument as to why he should be excused
from having to make such arguments. Indeed, as we have noted,
Wright does not adequately develop a challenge to the District
Court's conclusion that the statute encompasses the filing of "an
ill-informed motion to suppress." Accordingly, we reject Wright's
narrow-construction challenge, too. Zannino, 895 F.2d at 17; see
also United States v. Mohamud, 843 F.3d 420, 438 n.21 (9th Cir.
2016) (declining to reach defendant's facial challenge to FISA for
lack of explanation as to why suppression should be required in
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his case); United States v. Posey, 864 F.2d 1487, 1491 (9th Cir.
1989) ("[W]e think it clear that appellant may not make a facial
challenge to the FISA without arguing that the particular
surveillance against him violated the Fourth Amendment . . . Even
if he is correct that the FISA's language might be applied in ways
that violate the Fourth Amendment, he must show that the particular
search in his case violated the Fourth Amendment. Appellant cannot
invalidate his own conviction on the argument that others' rights
are threatened by FISA." (emphasis in original)).2
B.
We now turn to Wright's challenge to the portion of the
District Court's order that denied his motion to suppress evidence
obtained from the search of his electronic devices. The relevant
facts, to which the parties agree, are as follows.
2 Wright also points out that the FISA Emergency Provision
permits the Attorney General to authorize warrantless surveillance
for up to seven days, see 50 U.S.C. § 1805(e)(1)(D), whereas the
analogous provision in Title III only authorizes warrantless
surveillance for up to forty-eight hours, see 18 U.S.C. § 2518(7).
Insofar as Wright means to argue that this "longer-term,
warrantless wiretapping" violates the Fourth Amendment, Wright
makes no argument that any evidence in his particular case was
obtained pursuant to surveillance without judicial approval that
was conducted for more than forty-eight hours or as to how he can
bring a facial challenge to this aspect of the FISA Emergency
Provision without making a showing that some evidence in his case
was so obtained and was prejudicial to him. See Mohamud, 843 F.3d
at 438 n.21; Posey, 864 F.2d at 1491. Nor does he argue that he
was wrongly denied access to the information that might support
such an argument. Accordingly, we see no reason to address this
aspect of Wright's facial challenge to the Emergency Provision.
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During the early morning of June 3, 2015, an FBI agent
filed an application for a search warrant for Wright's apartment.
The affidavit that accompanied the application included two
attachments. One of the attachments described Wright's apartment
("Attachment 2"). The other attachment identified the property
subject to seizure ("Attachment A"). Attachment A included a list
of specific "items," including "[a]ll computer hardware, computer
software, gaming equipment, computer-related documentation, and
storage media" and noted that "[o]ff-site searching of these items
shall be limited to searching for the items described
[previously]." (Emphasis added).
A federal magistrate judge issued a warrant based on the
application. The Magistrate Judge identified the "property to be
searched" in that warrant as Wright's apartment as described in
Attachment 2 and the "property to be seized" as the property listed
in Attachment A.
FBI agents seized Wright's electronic media devices
pursuant to the warrant. The agents also later searched those
media devices for evidence.
Wright argues that the plain text of the warrant
precluded the search of the electronic media devices that were
seized. This contention turns on the proper construction of the
warrant, so our review is de novo. See Peake, 804 F.3d at 86.
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We conclude that the warrant is most naturally read to
contemplate the search of Wright's electronic devices after their
seizure. See id. at 87 (explaining that "search warrants and
affidavits should be considered in a common sense manner, and
hypertechnical readings should be avoided" (internal quotation
marks omitted)). The warrant expressly cross-references
Attachment A in describing the property that may be seized.
Attachment A, in turn, expressly provides for the "[o]ff-site
searching of" electronic media devices. Thus, the warrant -- by
virtue of its cross reference to Attachment A -- is best read to
authorize not only the seizure, but also the search of the devices
at issue, as expressly contemplated by the text of Attachment A.
See United States v. Baldyga, 233 F.3d 674, 683 (1st Cir. 2000)
As a result, Wright's contention that, in light of Riley v.
California, 134 S. Ct. 2473 (2014), we may not infer that an
authorization to seize an electronic device necessarily includes
the authorization to search that device is beside the point.
C.
Wright challenges one other portion of the District
Court's order that denied his various motions to suppress. That
portion of the order concerns Wright's motion to suppress
statements that he made to law enforcement agents at his home on
June 2, 2015.
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Wright contends that the District Court erred by denying
this motion to suppress, because the government violated his
federal constitutional due process rights by failing to record the
interview in which he made the statements. As the government
notes, however, Wright cites no authority to support his alleged
entitlement under the federal Constitution to a recorded
interview. In fact, we have previously held to the contrary. See
United States v. Meadows, 571 F.3d 131, 147 (1st Cir. 2009)
("[T]here is no federal constitutional right to have one's
custodial interrogation recorded.").
Wright does attempt to ground his claim in a United
States Department of Justice policy that requires the recording of
custodial interviews conducted in a place of detention with
suitable recording equipment. But, that policy does not purport
to create legal rights that may be enforced by criminal defendants.
See United States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990)
(holding that "the internal guidelines of a federal agency, that
are not mandated by statute or the constitution, do not confer
substantive rights on any party"). Thus, that policy supplies no
basis for overturning the portion of the District Court's order
that denied Wright's suppression motion with respect to the
statements that he made to law enforcement.
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II.
We turn our attention now to Wright's challenge of the
District Court's handling of an unplanned interaction that
occurred between a juror and an FBI agent at a restaurant while
the trial was ongoing. Here, too, Wright is less than clear in
identifying the convictions to which this challenge pertains. We
nonetheless proceed on the understanding that, like his challenges
to the District Court's order denying his suppression motions, he
means for this challenge to implicate each of his convictions.
While a district court must make an "adequate inquiry"
into non-frivolous claims of juror bias or misconduct, United
States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st Cir. 1993), the
district court has "broad discretion to determine the type of
investigation [that] must be mounted." United States v. Boylan,
898 F.3d 230, 258 (1st Cir. 1990). See also United States v.
Ramirez-Rivera, 800 F.3d 1, 41 (1st Cir. 2015) ("[T]he trial judge
is vested with the discretion to fashion an appropriate and
responsible procedure to determine whether misconduct occurred and
whether it was prejudicial.").
We review the adequacy of a district court's
investigation of -- and response to -- evidence of potential juror
bias or misconduct for abuse of discretion, "recogniz[ing] that
the district court has wide discretion in deciding how to handle
and how to respond to allegations of juror bias and misconduct
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that arise during a trial." United States v. Tejeda, 481 F.3d 44,
52 (1st Cir. 2007) (internal quotation marks omitted). We review
a district court's findings that a juror is credible and that the
jury is impartial for clear error. See United States v. Burgos-
Montes, 786 F.3d 92, 110-11 (1st Cir. 2015).
A.
The relevant facts, as found by the District Court, are
as follows. Juror 25 encountered one of the FBI agents who had
been sitting at the government's counsel table during trial at a
restaurant over a weekend while the trial was ongoing. Juror 25
and the FBI agent exchanged pleasantries but did not discuss the
case.
When the agent was ready to leave his table, wait staff
informed him that someone had already paid for his meal. Wait
staff suggested to the agent that the person who had paid for his
meal was sitting at a table in the restaurant other than the one
at which Juror 25 had been seated.
The government informed the District Court of this
matter on the Monday morning after the encounter. Both parties
agreed to the District Court's proposal to question Juror 25 about
the incident.
The District Court questioned Juror 25 in the presence
of the parties. Juror 25 admitted to seeing the FBI agent and to
exchanging pleasantries with him. He stated that there was no
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discussion of the substance of the case. He also stated that he
had paid the agent's bill and explained, after being asked why he
had done so, that there was "no reason, we like to pay it forward,
so he happened to be there and that's what we did."
Juror 25 also told the District Court that he had
mentioned to about seven jurors that morning that he had seen the
agent over the weekend. He noted, however, that he did not tell
any of those jurors that he had paid the agent's bill at the
restaurant. Juror 25 also stated that he had, pursuant to the
District Court's instructions at the outset of the trial, not
"expressed any opinions about the substance of the case to [his]
fellow jurors."
The District Court excused Juror 25 from the trial and
instructed him not to say anything about the matter to his fellow
jurors. At that point, Wright's counsel asked that the District
Court question the remaining jurors about what Juror 25 had told
them. The District Court declined to do so. The District Court
instead asked all the jurors at the outset of that day's
proceedings whether they had "heard, read, or seen anything at all
concerning the substance of [the] case," whether they had
"[d]iscussed the substance of the case with anyone," and whether
"anyone [had] discussed the substance of the case in [their]
presence," since they had recessed the previous Thursday. When
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each juror answered, "No," the trial then proceeded without
objection.
B.
Wright emphasizes that "any unauthorized communication
between any person who is associated with the case . . . and a
juror would have the potential for being prejudicial," unless the
communication is completely unrelated to the case or is "shown to
be harmless." United States v. O'Brien, 972 F.2d 12, 14 (1st Cir.
1992). But, nothing in the record suggests -- nor does Wright
contend -- that the communication between Juror 25 and the FBI
agent was "about the case." See id. ("In those instances where it
is shown that there was a communication about the case, the
communication would be deemed prejudicial unless shown to be
harmless." (emphasis added)); United States v. Sampson, 486 F.3d
13, 41 (1st Cir. 2007) ("We have attached significance before to
the fact that a juror's casual ex parte communication did not
concern the substance of the case, and we think it is appropriate
to continue to follow that praxis." (citing United States v.
Angiulo, 897 F.2d 1169, 1185 (1st Cir. 1990)).
In any event, the District Court dismissed the only juror
who had "an unauthorized communication [with] someone associated
with the case." Id. Nor was any wrongdoing or bias on the part
of any juror besides Juror 25, whom the District Court excused,
alleged. Moreover, Wright does not suggest that, even if Juror 25
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gave the other jurors a detailed account of his encounter with the
FBI agent, the other jurors actually became biased against him.
Thus, the cases on which Wright relies in contending
that it was an abuse of discretion for the District Court not to
have questioned the other jurors about the incident at the
restaurant are inapt. See United States v. Resko, 3 F.3d 684,
688-693 (3d Cir. 1993) (allegation that jurors had deliberated
prematurely); United States v. Gaston-Brito, 64 F.3d 11, 13 (1st
Cir. 1995) (allegation of an ex parte communication between a
government agent and jurors); Government of the Virgin Islands v.
Weatherwax, 20 F.3d 572, 578 (3d Cir. 1994) (allegation that jurors
may have read an inaccurate newspaper article about the case);
United States v. Lara-Ramirez, 519 F.3d 76, 87 (1st Cir. 2008)
(allegation that Bible in jury room tainted proceedings); United
States v. Paniagua-Ramos, 251 F.3d 242, 250 (1st Cir. 2001)
(allegation from defendant's sister that two jurors had been seen
conversing with the prosecutor during trial); United States v.
Zimny, 846 F.3d 458, 464, 467-68 (1st Cir. 2017) (allegation that
jury was exposed to extraneous prejudicial blog post and comments
and had engaged in premature deliberations).
Wright's reliance on cases in which district courts took
more steps to investigate concerns about juror taint than the
District Court took here, see, e.g., United States v. Ortiz-
Arrigoitia, 996 F.2d 436, 443 (1st Cir. 1993), also cannot help
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his argument. Those cases simply support the notion that "[t]he
trial court has wide discretion in how it goes about this inquiry."
Tejeda, 481 F.3d at 52.
III.
We come, then, to the first of Wright's challenges to
the District Court's jury instructions. Wright first challenges
the instruction that the District Court gave about the permissive
inferences that the jury could make in determining whether Wright
had the intent necessary for him to be found guilty on any count
that required a finding of intent. This challenge, like each of
the challenges that we have thus far considered, appears to take
aim at each of his convictions.
In reviewing preserved challenges to jury instructions,
we "consider de novo whether an instruction embodied an error of
law, but we review for abuse of discretion whether the instructions
adequately explained the law or whether they tended to confuse or
mislead the jury on the controlling issues." United States v.
Ackell, 907 F.3d 67, 78 (1st Cir. 2018) (quoting United States v.
Gray, 780 F.3d 458, 464 (1st Cir. 2015)). We assume favorably to
Wright that his challenge alleges an error of law in the
instruction. But, even assuming our review is de novo, Wright's
challenge fails.
The relevant instruction was as follows:
- 24 -
I will tell you that the law provides that you
may infer that a person intends the natural
and probable consequences of what they say and
do. Now when I say you may infer it, what
that means is you could draw that conclusion,
but you need not, that's left to you as the
jury. You look at all the evidence to see
whether the government [proved], because
they've got to prove this -- this is essential
[--] Mr. Wright's intent beyond a reasonable
doubt.
(Emphasis added).
We have upheld instructions that allow for permissive
inferences regarding intent. See, e.g., Lannon v. Hogan, 719 F.2d
518, 521-22 (1st Cir. 1983) (holding that the instruction, "you
may infer or conclude that a person ordinarily intends the natural
and probable consequences of acts knowingly done," did not contain
constitutional error) (collecting First Circuit cases deciding the
same). In fact, the First Circuit pattern jury instructions
expressly include the language, "You may infer, but you are
certainly not required to infer, that a person intends the natural
and probable consequences of acts knowingly done or omitted."
Pattern Jury Instructions for the District Courts of the First
Circuit § 4.18.1343 (2019).
But, as Wright points out, the District Court's
instruction here does not track that pattern jury instruction word
for word. The instruction instead states that the jury was
permitted to "infer that a person intends the natural and probable
consequences of what they say and do." (Emphasis added).
- 25 -
Wright asserts that, in deviating from the pattern
instruction in this way, the District Court's instruction
"improperly highlighted just one aspect of the case, the
Defendant's words, to the exclusion of all the other evidence on
this crucial point [of Wright's intent]." And, Wright contends,
the instruction -- by highlighting his "words" -- undermined his
entire defense at trial, which was "that, even though [Wright]
said and wrote much of what the Government claimed he said and
wrote, he did not intend to support ISIS, obstruct justice, or
commit an act of violence."
Wright's reading of the instruction, however, is not a
fair one. The instruction allows the jury to infer intent from
both Wright's words and his conduct ("what they say and do"), and
the instruction expressly states that the jury must "look at all
the evidence." (Emphases added). For these reasons, the
instruction is not like the one found to have been erroneous in
United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir. 1992),
the out-of-circuit precedent on which Wright relies.
Rubio-Villareal addressed an instruction "which told the
jury it could infer knowledge from two isolated facts -- that the
defendant was the driver and that cocaine was concealed in the
body of the vehicle." Id. at 298. By contrast, the District
Court's instruction did not permit the jury to infer intent from
such isolated facts. Thus, the instruction neither "effectively
- 26 -
told the jury in this case that the judge thought there was
sufficient evidence to convict the defendant" nor "focused the
jury on some rather than all the facts," as the instruction in
Rubio-Villareal did. Id. at 299. In fact, the instruction stated
that the jury must consider "all the evidence." (Emphasis added).
We therefore reject Wright's challenge to this jury instruction.
IV.
Having dispensed with Wright's challenges that target
his convictions generally, we now focus on Wright's challenges
that concern only his convictions on specific counts -- namely,
Counts One and Four. We begin with Wright's challenges to his
conviction on Count One. The challenges concern, respectively,
the sufficiency of the evidence to support the conviction on Count
One and the District Court's instruction on the elements of the
offense underlying that conviction. We then will turn, in Part V,
to Wright's challenges to his conviction on Count Four. Those
challenges concern, respectively, the sufficiency of the evidence
to support his conviction on that Count and the District Court's
jury instruction on the elements of the offense underlying that
conviction.
A.
To understand Wright's challenge to the sufficiency of
the evidence for his conviction on Count One, it is necessary,
first, to provide some background about the elements of the offense
- 27 -
of conviction and the understanding of the parties and the District
Court as to what those elements required the government to prove.
We then need to explain in further detail the aspects of the
government's case for convicting Wright of that offense that he
contends were not supported by sufficient evidence. Finally, we
will explain why, given the arguments that Wright presses, his
sufficiency challenge to his conviction on Count One fails.
1.
Wright was convicted on Count One of violating 18 U.S.C.
§ 2339B. "[T]o prove a violation [of § 2339B], the government
must establish that a defendant (1) knowingly provided or attempted
or conspired to provide material support (2) to a foreign terrorist
organization (3) that the defendant knew had been designated a
foreign terrorist organization or had engaged in terrorism."
United States v. Dhirane, 896 F.3d 295, 303 (4th Cir. 2018), cert.
denied sub nom., Jama v. United States, 139 S. Ct. 1207 (2019)
(citing Holder v. Humanitarian Law Project, 561 U.S. 1, 16–17
(2010)). 18 U.S.C. § 2339B goes on to define "material support or
resources" as "any property, tangible or intangible, or service,
including," among other things, "personnel (1 or more individuals
who may be or include oneself)." Id. § 2339B(g)(4) (defining
- 28 -
"material support or resources" in accordance with the definition
used in 18 U.S.C. § 2339A(b)(1)).
The indictment alleged that, in violation of § 2339B,
Wright conspired to provide "material support or resources" in the
form of "services and personnel" to ISIS. At trial, however, the
government argued only that, in connection with the co-
conspirators' plot to kill Geller and police officers in the United
States, Wright engaged in a conspiracy to provide
"personnel" -- himself and potential recruits -- and not "services"
to ISIS.
The government limited its case at trial to the
"personnel" theory of liability. The government did so on the
understanding that the jury should be in agreement, in the event
that the jury returned a guilty verdict, as to the particular type
of "material support or resources" -- i.e., "personnel" or
"services" -- that Wright had conspired to provide.
With regard to "personnel," § 2339B provides that:
No person may be prosecuted under this section
in connection with the term "personnel" unless
that person has 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. Individuals who act
entirely independently of the foreign
terrorist organization to advance its goals or
objectives shall not be considered to be
- 29 -
working under the foreign terrorist
organization's direction and control.
Id. § 2339B(h).
Wright's counsel argued to the District Court, that,
under the definition of "material support or resources" provided
in § 2339A(b)(1), "personnel . . . is an example of a type of
service." Neither § 2339A nor § 2339B provides a definition of
"service." But, the Supreme Court, in the course of construing
§ 2339B, has noted that "a person of ordinary intelligence would
understand the term 'service' to cover advocacy performed in
coordination with, or at the direction of, a foreign terrorist
organization." Holder, 561 U.S. at 24 (emphasis added). Thus,
drawing on Holder and the contention that "personnel is an example
of a type of service," Wright's counsel requested that, despite
the government's representation that it would press at trial only
the "personnel" and not the "services" theory of Wright's criminal
liability set forth in the indictment, the District Court "still
instruct the jury that material support implies coordination."
The District Court agreed with Wright's counsel on this
point. The government did not object. In consequence, the issue
of whether the plot to kill Geller and the police officers that
Wright was charged with conspiring to carry out was undertaken "in
coordination with" ISIS, along with the issue of whether that plot
was undertaken "at the direction of ISIS," became key issues at
trial.
- 30 -
2.
The "at the direction of" and "in coordination with"
theories "provide alternative, independently sufficient grounds
for" sustaining the conviction with respect to the "material
support or resources" element of the conspiracy offense at issue.
United States v. Gaw, 817 F.3d 1, 5 (1st Cir. 2016) (quoting United
States v. Cruz-Arroyo, 461 F.3d 69, 73 (1st Cir. 2006)). We have
no need to address, however, whether there was sufficient evidence
to convict Wright on the theory that he conspired to be part of a
plot that was carried out "at the direction of" ISIS. That is
because we reject Wright's contention that there was insufficient
evidence for a rational jury to find beyond a reasonable doubt
that Wright conspired to carry out a plot to kill Geller and others
"in coordination with" ISIS. See id. ("[A]dequate proof of one
[of two alternative theories of criminal liability] obviates any
need for proof of the other." (quoting Cruz-Arroyo, 461 F.3d at
73)).
Our review of Wright's sufficiency challenge is de novo.
See United States v. Ocean, 904 F.3d 25, 28 (1st Cir. 2018) (citing
United States v. Ramírez-Rivera, 800 F.3d 1, 16 (1st Cir. 2015)).
In undertaking that review, "[w]e view all the evidence,
credibility determinations, and reasonable inferences therefrom in
the light most favorable to the verdict in order to determine
whether the jury rationally could have found that the government
- 31 -
established each element of the charged offense beyond a reasonable
doubt." United States v. Valdés-Ayala, 900 F.3d 20, 30 (1st Cir.
2018) (internal quotation marks and punctuation marks omitted).
In overcoming this "formidable standard of review," United States
v. Loder, 23 F.3d 586, 589 (1st Cir. 1994), "[d]efendants
challenging convictions for insufficiency of evidence face an
uphill battle on appeal," United States v. Hernandez, 218 F.3d 58,
64 (1st Cir. 2000).
3.
To make the case that the evidence sufficed to support
the conspiracy conviction at issue on the basis of an "in
coordination with" theory of criminal liability, the government
argues as follows. First, it contends that the evidence
supportably showed that Wright's uncle and alleged co-conspirator,
Rahim, communicated with a "Mr. Hussain" about the plot to kill
Geller and others. The government further argues that the evidence
supportably showed that this "Mr. Hussain" was at the time living
in an ISIS-controlled territory in Syria and was a "high-profile"
member of ISIS. The combination of this evidence, the government
asserts, was legally sufficient to establish that Rahim and "Mr.
Hussain" were conspiring to kill Geller and others "in coordination
with" ISIS. The government thus contends that, so long as the
evidence sufficed to show that Wright was part of that conspiracy
to carry out that plot, the evidence sufficed, as a whole, to
- 32 -
support Wright's conviction for conspiring to provide "material
support or resources" to ISIS on a "coordination" theory.
Wright asserts on appeal that, "[a]t best, the
Government has shown that the plan was inspired by" (emphasis
added) publicly available ISIS videos and documents, "but
independent of, ISIS." In making this blanket assertion as to
what the record shows about "the plan" and its connection to ISIS,
though, Wright fails to engage with any of the evidence that we
have just discussed that concerned "Mr. Hussain's" involvement in
the plot at issue and "Mr. Hussain's" ties to ISIS. Instead,
Wright merely makes a conclusory contrary characterization of the
evidence as a whole with respect to ISIS's connection to the plot.
Such a conclusory assertion is not the kind of developed
argument about the insufficiency of the evidence that Wright must
make to succeed on his sufficiency challenge. It fails to address
the evidence that the government points to in its brief to show
that the evidence sufficed to prove that the plot at
issue -- independent of whether Wright was a part of it -- was
undertaken "in coordination with" ISIS.
By contrast, the evidence that the government introduced
included, among other things, records of electronic communications
between Rahim and Hussain, expert testimony that explained who
Hussain was and what his ties to the ISIS organization were, and
tweets that, the government contends, a jury rationally could find
- 33 -
were authored by Hussain and showed his substantial involvement in
developing and facilitating the plot at issue. Because Wright
addresses none of this evidence, we deem waived for lack of
development any challenge to the sufficiency of the evidence to
support this critical aspect of the government's case for
satisfying the "coordination" requirement, concerning, as it does,
the nature of the plot in which Wright is charged with having been
a participant. See United States v. Benevides, 985 F.2d 629, 633
n.6 (1st Cir. 1993) ("[W]e decline to engage in speculation or to
forge beyond the line of argument that defendant has explicitly
pursued in his appeal.").
We recognize that Wright does also appear to advance the
argument that there was insufficient evidence that he
"coordinate[d] his efforts with members of the [ISIS]." In so
arguing, Wright focuses on the fact that the government "failed to
present any evidence of communication between the Defendant and
any ISIS member regarding the plan." Wright stresses in this
regard that the evidence showed at most that he simply downloaded
publicly available videos and documents produced by ISIS. He then
argues that evidence of that conduct cannot suffice to prove that
he conspired to carry out the plot at issue "in coordination with"
or, for that matter, "at the direction of" ISIS.
But, these contentions about what the evidence showed
regarding Wright's own conduct relate merely to what the evidence
- 34 -
showed about the role that he played in the plot in which he is
charged with having been a participant. Those contentions thus
fail to provide a basis for rejecting the government's argument on
appeal that the evidence supportably showed that Rahim and "Mr.
Hussain" were engaged in a plot to kill Geller and others "in
coordination with" ISIS.
To be sure, there does remain the question of whether
the evidence was insufficient to show that Wright had the requisite
intent and knowledge that the conspiracy that he was alleged to
have joined was of such a kind. See United States v. García-
Pastrana, 584 F.3d 351, 377 (1st Cir. 2009) (noting that the
requisite mental state for conspiracy is "knowledge of the basic
agreement" and "an intent to commit the underlying substantive
offense" (quoting United States v. Brandon, 17 F.3d 409, 428 (1st
Cir. 1994)). And, because Wright separately contends that the
evidence did not suffice in that regard, we must address that
question as well. As we next explain, though, we are not persuaded
by Wright's argument that the evidence was lacking on that separate
score.
As the government points out, Wright was charged as a
co-conspirator in the plot to kill Geller and the police officers
"in coordination with" ISIS and thus as a co-conspirator in a plot
to "provide" what the parties agreed § 2339B treats as "material
support or resources" to that terrorist organization. Wright is
- 35 -
therefore wrong to suggest that, merely because the government
failed to put forth any evidence of communication between him and
a member of ISIS, he could not be convicted of the conspiracy
offense with which he was charged. The Supreme Court has squarely
rejected the argument that the government is required to prove
that a defendant charged with conspiring to provide material
support in violation of 2339B had the specific intent to further
the terrorist organization's activities. See Holder, 561 U.S. at
16-17 ("Congress plainly spoke to the necessary mental state for
a violation of § 2339B, and it chose knowledge about the
organization's connection to terrorism, not specific intent to
further the organization's terrorist activities." (emphasis
added)). Nor does the fact that Wright was charged with conspiring
to commit that offense require the government to have made that
showing. See United States v. Piper, 35 F.3d 611, 615 (1st Cir.
1994) (noting that a defendant who "intentionally agrees to
undertake activities that facilitate commission of a substantive
offense, but who does not intend to commit the offense himself"
may be convicted of conspiracy).
Wright also appears to contend that his sufficiency
challenge has merit because the evidence was insufficient to show
that he knew the nature of "Mr. Hussain's" involvement in the plot.
But, even assuming, favorably to Wright, that the government was
required under conspiracy law to make such a showing, compare
- 36 -
García-Pastrana, 584 F.3d at 377 (1st Cir. 2009) (noting that the
requisite mental state for conspiracy is "knowledge of the basic
agreement") with Ocean, 904 F.3d at 31 (concluding that a defendant
need not know all the details of a conspiracy to be found guilty
as a conspirator), we conclude that the evidence sufficed.
The government's evidence on this score included the
recording and transcript of a May 26, 2015 call between Rahim and
Wright, which supportably showed that Rahim recounted to Wright
that he had received an encrypted document from "Mr. Hussain" with
research on Geller, as well as Wright's response that "I gotta see
that [document]." The government also presented testimony from
Wright's co-conspirator Rovinski, who recounted that Wright,
Rahim, and Rovinski had pledged their support to ISIS's leader,
al-Baghdadi, and that their plot to kill Geller and others was
intended to fulfill ISIS's stated goals. In the face of that
evidence, we see no basis to conclude that there was insufficient
evidence from which a rational jury could find that Wright knew
not only about "Mr. Hussain's" involvement in the plot but also
about his ties to ISIS. Thus, this aspect of Wright's sufficiency
challenge lacks merit, too.
B.
Having rejected Wright's sufficiency challenge on Count
One, we now consider his preserved challenge to the District
- 37 -
Court's jury instruction on that count.3 The jury instruction that
Wright challenges was as follows:
The support must be "material," which means
it's got to make some sort of difference, not
a major coup necessarily, but it's got to make
some difference to the goals, plans, strategy,
tactics of this foreign terrorist
organization, in this case it's ISIS. And
there's got to be -- what they do -- and again
this is all part of this terrorist connection,
what they plan to do has -- the specific
language I want to use is that it has to be
"conduct done in coordination with or at the
direction of the foreign terrorist
organization."
Now the coordination -- and the reason that
the government has to prove that is to
prevent, um, the law from applying [to] some
random act, just a random act of violence and
then ISIS latches onto that and says, "Oh,
yeah, those were our soldiers," or something
like that. They have to -- the conspiracy has
got to be, um, cognizant of and acting in
coordination -- it doesn't have to be direct
orders, but in coordination with the strategy,
the tactics of the foreign terrorist
organization, in this case ISIS. Well, that's
the first question.
(Emphasis added).
Wright contends that this instruction, by virtue of the
underlined language, permitted the jury to find that he conspired
3 The government does not dispute that Wright preserved this
objection below. The government does, however, argue that Wright's
challenge to this instruction should be deemed waived for lack of
development on appeal. We do not agree with the government's
characterization of Wright's briefing on appeal, in which he
sufficiently ties his legal argument to the errors preserved below.
We thus proceed to address his instructional challenge on the
merits.
- 38 -
to provide "material support or resources" to ISIS merely by having
coordinated with ISIS's publicly available strategy and tactics,
while acting independently of the terrorist organization itself.
As Wright puts it, the District Court's expansive definition of
"coordination" in the underlined language quoted above permitted
the jury to convict him based on a finding that he acted with "mere
awareness of the desires of the terrorist organization, delivered
indirectly," without also finding that there had been any
"communication between the Defendant and any ISIS member regarding
the plan" or other any other "actual connection to the terrorist
group." Wright further contends that this flaw in the instruction
constituted reversible error.
Wright's challenge to this instruction is not merely
that its wording is confusing. It is a contention that the
instruction misstated the relevant law, so our review is de novo.
See Ackell, 907 F.3d at 78.
In undertaking that review, we first explain why the
instruction was in error. We then turn to a consideration of
whether the error was harmless, first by determining the standard
for assessing whether an error of this type is, in fact, harmless,
and then by explaining why the applicable harmless error standard
has not been satisfied by the government here.
- 39 -
1.
The government does not make any contention that, even
if the instruction says what Wright says it does, it is a correct
statement of the law. Instead, the government argues only that
Wright misreads it.
The government focuses on the fact that the instruction
begins with a statement that "[the conduct] has to be . . . done
in coordination with or at the direction of the foreign terrorist
organization." The government argues that this initial statement
should be read to qualify the District Court's subsequent
explanation of "coordination" as "coordination with the strategy,
the tactics of the foreign terrorist organization." Thus,
according to the government, the jury would have understood, taking
the instructions as a whole, that it had to find that the
"coordination" was with ISIS itself and not merely with its
publicly available strategy and tactics.
But, we do not agree with the government's proposed
reading of the instruction. The statement that "coordination"
could be merely "coordination with the strategy, the tactics of
the foreign terrorist organization" is preceded by a sentence that
began, "Now the coordination." That same preceding sentence then
goes on to "explain the reason that the government has to prove
that."
- 40 -
In context, then, the instruction's key statement that
describes "coordination" to be merely with the "strategy" and
"tactics" of ISIS, rather than with the terrorist organization
itself, is most naturally read as defining the same "coordination"
that the District Court mentions in its initial statement that
"[the conduct] has to be . . . done in coordination with or at the
direction of the foreign terrorist organization." Most naturally
read, this more detailed definition of the kind of coordination
that is required displaces the stricter requirement of
"coordination with . . . the foreign terrorist organization"
itself that the instruction earlier sets forth. See United States
v. Pizarro, 772 F.3d 284, 300 (1st Cir. 2014) (opting for the "most
natural reading of [a] passage" in a jury instruction,
"particularly in light of" other statements made by the District
Court); United States v. Latorre-Cacho, 874 F.3d 299, 305 (1st
Cir. 2017) (concluding "that the instructions as a whole did not
suffice to disabuse the jury of the misimpression about what it
needed to find that had been created by the erroneous part of the
instructions").
The government does contend that such a reading of the
instruction fails to account for the portion of it that elaborates
on what constitutes "coordination" and that states that "it doesn't
have to be direct orders." The government argues that the
statement at issue thus "could logically have been heard as merely
- 41 -
providing examples of conduct falling short of 'direct orders'
(i.e., coordination with the organization regarding strategy or
tactics)" that would suffice to show "coordination." The
government thus contends that this portion of the instruction
should be read to merely clarify that "coordination" need not rise
to the level of "direct orders."
But, the statement in the instruction that "it doesn't
have to be direct orders," even if properly read to clarify that
"coordination" need not take the form of "direct orders," was still
problematic. The statement cannot be read to say that
"coordination" must be with the terrorist organization itself
rather than with the organization's strategy and tactics, if merely
publicly available. Thus, we conclude that, given the way that
the words of the instruction juxtapose certain conduct that could
suffice as "coordination" with certain conduct that could not, the
instruction is most naturally read to state that "it" -- on the
government's reading, "coordination" -- could be "with the
strategy, the tactics of the foreign terrorist organization" and
so need not be with the organization itself. See, e.g., Febres v.
Challenger Caribbean Corp., 214 F.3d 57, 64 n.8 (1st Cir. 2000)
(opting for a "phrase's more natural reading" in a jury
instruction).
The conclusion that the instruction should be read as
Wright urges us to read it finds additional support in another
- 42 -
portion of the instruction. That portion supports Wright's
proposed reading by setting forth one "example" of the type of
conduct that might fall outside the statute's ambit: "a random act
of violence [that] then ISIS latches onto." (Emphasis added). By
ruling out only that one example, the instruction implicitly
suggests what the displacing definition of "coordination"
suggests: that a jury may deem a defendant to have acted "in
coordination with" a terrorist organization based merely on a
finding that the defendant had operated in parallel to that
organization.
The government does not cite -- nor do we know of -- any
authority to support such an expansive construction of the
"material support or resources" element of the offense. Nor does
the government develop any argument that, insofar as it is so read,
the instruction still properly stated the law of what constitutes
"coordination." We thus conclude that, at least given the
arguments presented to us, Wright has adequately made the case
that the instruction on Count One with respect to the definition
of "coordination" constitutes legal error.
2.
Of course, "[e]ven an incorrect instruction to which an
objection has been preserved will not require us to set aside a
verdict if the error is harmless." United States v. Sasso, 695
F.3d 25, 29 (1st Cir. 2012) (citing United States v. Argentine,
- 43 -
814 F.2d 783, 788–89 (1st Cir. 1987)). The determination of
whether the erroneous instruction was harmless turns in part on
whether the flaw in it was of a constitutional dimension. We thus
start by considering that issue.
a.
An instruction that relieves the government of its
burden of proving beyond a reasonable doubt an element of the
offense violates the Due Process Clause of the Fifth Amendment to
the Constitution. See Patterson v. New York, 432 U.S. 197, 210
(1977). Such an instruction is harmless if "it appears 'beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.'" Neder v. United States, 527 U.S. 1, 15
(1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
The government bears the burden, moreover, of showing that an
instruction that is constitutionally flawed is harmless. See
United States v. Sepulveda-Contreras, 466 F.3d 166, 171 (1st Cir.
2006).
The government does not explain how -- if we conclude
that the instruction says what Wright contends that it says -- we
could reach any conclusion other than that it reduced the
government's burden to prove one of the theories that the parties
themselves agreed was necessary to prove the "material support or
resources" element of the conspiracy charge at issue. After all,
the government makes no argument that an instruction that permitted
- 44 -
Wright to be convicted merely for having coordinated with the
"strategy" and "tactics" of ISIS properly described the
"coordination" that it agreed had to be proven, in the event that
"direction" was not. Accordingly, we proceed on the understanding
that this instructional error is a constitutional one and thus
triggers the harmless error standard for errors of that magnitude.
The government submitted both the "coordination" and
"direction" theories of the "material support or resources"
element to the jury. As the government rightly notes, nothing in
the government's presentation of the case "force[d] or urge[d]"
the jury "to decide the case on the theory [implicated by the
flawed instruction]." See United States v. Skilling, 638 F.3d
480, 483 (5th Cir. 2011). Thus, when applying the demanding
harmless error standard for constitutional errors, we are required
to affirm the conviction if the evidence for either theory of guilt
-- "coordination" or "direction" -- was so
"overwhelming . . . that the jury verdict would have been the same
absent the error." Neder, 527 U.S. at 17; see United States v.
Zhen Zhou Wu, 711 F.3d 1, 30 (1st Cir. 2013) (citing Neder, 527
U.S. at 17; Hedgpeth v. Pulido, 555 U.S. 57 (2008)).
The government makes no argument, however, that it met
the harmless error standard for a constitutional error with respect
to the "in coordination with" theory of guilt, which is the theory
that the flawed instruction described. See United States v.
- 45 -
Rodríguez–Marrero, 390 F.3d 1, 18 (1st Cir. 2004) (noting that we
may deem any harmless error argument not briefed by the government
as waived). The only respect in which the government even touches
on the harmlessness of the instruction is its contention that
"[a]ny possibility that Wright would have been prejudiced by any
confusion caused by this instruction, moreover, is lessened by the
government's closing argument . . . that the evidence showed that
he acted at 'the direction of' ISIS, and not merely in coordination
with ISIS." We thus confine our harmless error analysis to
determining whether the government has met its burden to show that
the evidence that Wright participated in the plot "at the direction
of" ISIS was "overwhelming," see Neder, 527 U.S. at 17, as it
must be to render harmless the constitutional error caused by the
instruction.
b.
The government argued to the jury at trial -- and argues
to us on appeal -- that the evidence of "Wright's avowed intent to
attack Geller to fulfill the fatwa established that he was acting
'at the direction' of ISIS." To make that case, the government
relied heavily on Rovinski's testimony to show that Wright had
pledged allegiance to ISIS's leader and that Rovinski, Rahim, and
Wright were making a plan to kill Geller and others to fulfill
ISIS's fatwa in the hopes of attaining "martydom." But, such
evidence is solely based on a government cooperator's testimony,
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which is a type of evidence that is rarely deemed to be
overwhelming on its own. See United States v. Melvin, 730 F.3d
29, 39 (1st Cir. 2013) (rejecting the government's argument that
the "evidence of the defendant's guilt was so overwhelming as to
render the [error] benign" where "[t]his proposition relie[d]
heavily on [a cooperating witness's] testimony"); see also, e.g.,
United States v. Ramirez-Rivera, 800 F.3d 1, 33 (1st Cir. 2015)
(finding a constitutional error not harmless where "the only other
evidence connecting [the defendant] to anything illegal was the
testimony of the cooperators, which they provided in exchange for
leniency in their own cases"); United States v. Ocasio-Ruiz, 779
F.3d 43, 48 (1st Cir. 2015) (finding an error not harmless where
"the government's cooperating witness . . . gave the only evidence
tying [the defendant] to the [crimes]").
Moreover, Wright testified extensively at his trial that
he was simply engaged in an "ISIS role-play fantasy" to "escape
[his] real life at the time," in which he was "morbidly obese" and
"playing video games all day." Wright did admit in his testimony
that he "said a lot of things that sound[ed] like [he] w[as] really
in support of ISIS," but Wright also testified that these
statements were nothing more than "trash-talking" and "trolling."
Wright testified, for example, that he never intended to support
ISIS or to carry out ISIS's "plan" to kill Geller and police
officers.
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Consistent with this aspect of Wright's testimony, we
note, Wright also offered expert testimony from a
neuropsychologist. She testified that Wright had "significant
elements of a personality disorder." She also testified that
Wright had a fragile ego, used language to impress other people,
and had an unrealistic perception of who he was and impaired
personal relationships.
To be sure, "the jury [may have chosen] to credit the
accounts of the cooperating witness[] over the admittedly self-
serving testimony of the defendant." United States v. Ofray-
Campos, 534 F.3d 1, 28–29 (1st Cir. 2008). But, "[Wright's]
countervailing testimony on his own behalf is a factor in
conducting the harmless error analysis." Id. Taking account of
that factor here, we conclude that a rational jury could have found
from this evidence that Wright could have been simply
"role-playing" with respect to following ISIS's direction. We
thus cannot find the constitutional error in the instruction to
have been harmless beyond a reasonable doubt, because the evidence
to which the government points to make that showing fails to show
that there was "overwhelming" evidence that Wright had conspired
to kill Geller and others "at the direction of" ISIS. And that is
so, even if we were to assume that -- as the government contends
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-- intending to fulfill a publicly made ISIS decree constitutes
acting "at the direction of" ISIS.4 See Neder, 527 U.S. at 17.
V.
Wright next challenges his conviction on Count Four for
conspiracy to commit an act of terrorism transcending national
boundaries. See 18 U.S.C. § 2332b(a)(2) and (c). Wright
challenges this conviction -- just as he challenged his conviction
on Count One -- both on sufficiency grounds and in consequence of
an allegedly erroneous jury instruction. We begin with his
sufficiency challenges.
A.
Entitled, "Acts of terrorism transcending national
boundaries," § 2332b(a)(2) provides that whoever "conspires" "to
commit an offense under [18 U.S.C. § 2332b(a)(1)] . . . shall be
punished under [18 U.S.C. § 2332b(c)]." 18 U.S.C. § 2332b(a)(2).
Section 2332b(a)(1), in turn, provides in relevant part that
"[w]hoever, involving conduct transcending national
boundaries . . . , kills, kidnaps, maims, commits an assault
4 Wright also challenges his conviction on Count One based on
the District Court's refusal to give a clarification that it is
"legal to join, associate, advocate, and even praise a terrorist
organization." Because we vacate and remand Wright's conviction
on Count One on the ground that the instruction that the District
Court did give on "material support or resources" was erroneous,
we have no occasion to consider whether Wright's proposed
instruction -- insofar as it would attach to the District Court's
erroneous instruction -- was required.
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resulting in serious bodily injury, or assaults with a dangerous
weapon any person within the United States . . ." shall be subject
to specified punishments. Id. § 2332b(a)(1)(A). The statute
defines "conduct transcending national boundaries" to mean
"conduct occurring outside of the United States in addition to the
conduct occurring in the United States." Id. § 2332b(g)(1).
Wright premises his sufficiency challenges on the
argument that, under § 2332b(a)(1), the "[a]ct of terrorism" must
be one "involving conduct transcending national boundaries." See
§ 2332b(g)(1). He contends, first, that the "conduct transcending
national boundaries" must be "substantial" and that the only
evidence of "conduct transcending national boundaries" that the
government sufficiently proved at trial is not "substantial." For
that reason, Wright contends that the evidence put forward to
satisfy the "transcending national boundaries" requirement is not
sufficient. Wright then separately contends that, because he was
convicted as a conspirator under 18 U.S.C. § 2332b, the
requirements of conspiracy law obliged the government "to prove
that [Wright] knew and intended that the plan to kill would involve
conduct transcending national boundaries." Yet, he contends, the
evidence at trial was not sufficient to permit a rational juror to
so find.
We review Wright's preserved Count Four sufficiency
challenges de novo. See Ocean, 904 F.3d at 28. As we did when
- 50 -
reviewing Wright's Count One sufficiency challenges, "we view all
the evidence, credibility determinations, and reasonable
inferences therefrom in the light most favorable to the verdict in
order to determine whether the jury rationally could have found
that the government established each element of the charged offense
beyond a reasonable doubt." Valdés-Ayala, 900 F.3d at 30 (internal
quotation marks and punctuation marks omitted).
1.
We start with Wright's contention concerning the failure
of the government to prove that the "conduct transcending national
boundaries" was "substantial." We are not persuaded.
Even if we were to agree that the "conduct" must be
"substantial" to constitute "conduct" within the meaning of the
statute's "conduct transcending national boundaries" requirement,
the evidence that the government put forth at trial sufficed. To
see why, recall that, in countering Wright's sufficiency challenge
to his conviction on Count One, the government argued that it
introduced sufficient evidence that Rahim was plotting with a "Mr.
Hussain" to kill Geller and others. That is significant for
present purposes, because, in countering Wright's sufficiency
challenge to his conviction on Count Four, the government contends
that this same evidence sufficed to show that the conspiracy was
to commit a killing "involving conduct transcending national
boundaries," because there was evidence sufficient to show both
- 51 -
that "Mr. Hussain" was involved in the plot to kill Geller and
others and that "Mr. Hussain" was overseas during that involvement.
The government's evidence on the latter score included
a British foreign intelligence expert's testimony and social media
records, which the government contends supportably showed that
"Mr. Hussain" was in fact a British national, Junaid Hussain. The
government then proceeds to point out that it introduced certified
border-crossing records to supportably show that Junaid Hussain -
- who, other evidence supportably showed, also went by the moniker,
Abu Hussain -- had never traveled to the United States. The
government thus contends that a rational jury could find from this
body of evidence, taken as a whole, that Hussain's conduct in
connection with the plot -- exchanging information about the plot
to kill Geller with Rahim -- took place overseas and that the plot
"involv[ed] conduct transcending national boundaries."
Notably, Wright does not appear to contend otherwise.
In fact, Wright at one point appears to concede that "the jury may
have been legally entitled to infer from these facts that
'abuhussain' was overseas." We thus proceed on the understanding
that the evidence was sufficient to establish that "Mr. Hussain"
was involved in the plot to kill Geller and others and that Mr.
Hussain's involvement took place overseas. But, for that reason,
Wright's sufficiency challenge has little merit.
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The government points out that the District Court found
that the evidence of Hussain's involvement in the plot was
significant enough to deem him a co-conspirator, and Wright does
not challenge that finding on appeal. That evidence, we agree,
sufficed to show that Hussain did not merely "communicate" with
Rahim but provided him with research and guidance on the plot to
kill Geller, and Wright does not argue otherwise. Thus, we agree
with the government that the evidence of Hussain's involvement in
the plot at issue sufficed to show that the "conduct transcending
national boundaries" was "substantial" under any reasonable
interpretation of that term.
2.
We turn now to Wright's other sufficiency challenge to
his conviction on Count Four. Here, he contends that the evidence
was lacking to permit a rational juror to find him guilty of
conspiring to commit the underlying offense, given what he contends
are the requirements of conspiracy law.
But, Wright misapprehends conspiracy law, insofar as he
contends that the government had to prove not only that the
evidence showed that he intended to join a plot that he knew was
to commit a killing involving "conduct transcending national
boundaries," but also that he intended that the killing would
involve such extra-territorial conduct. Conspiracy law simply
imposes no such proof requirement on the government. Piper, 35
- 53 -
F.3d 611 at 615 (noting that a defendant who "intentionally agrees
to undertake activities that facilitate commission of a
substantive offense, but who does not intend to commit the offense
himself" may be convicted of conspiracy).
There does remain the question of whether the evidence
sufficed to show that, in joining the conspiracy, Wright knew that
the plot was to kill Geller and others in a manner "involving
conduct transcending national boundaries." But, while Wright
contends that there was not sufficient evidence on that score, we
disagree.
As the government points out, it introduced sufficient
evidence of "Wright's knowledge that Rahim was communicating with
Hussain about their plans [to kill Geller] and awareness that Abu
Hussain was overseas." The government's evidence on this score
included copies of two "Islamic State e-books" that Wright had
shared with Rahim that listed Hussain as a member of ISIS living
in Syria. The evidence also included the recording and transcript
of the May 26, 2015 call between Rahim and Wright in which Rahim
told Wright that "Mr. Hussain" had information that one of Wright's
friends was attending ISIS training in Syria, from which, the
government contends, a rational jury could infer that Wright must
have known that Hussain was overseas.
In response, Wright merely states, without further
explanation, that "there is no evidence that he agreed or intended
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that any plan to kill would be conducted, in significant part, by
someone overseas." But, this cursory statement is inadequate to
satisfy Wright's burden to explain why the evidence that the
government identifies on appeal was legally insufficient to show
the requisite knowledge. See Zannino, 895 F.2d at 17. We thus
reject Wright's sufficiency challenge to his conviction on Count
Four.5 See Benevides, 985 F.2d at 633 n.6.
B.
We now consider Wright's preserved challenge to the
District Court's jury instruction on Count Four. The relevant
instruction was as follows:
Well, the first two steps are exactly the
same, the government has to prove that Mr.
Wright was part of a conspiracy, as I have
5 Wright also argues that the District Court erred in denying
his motion for a new trial because, even assuming that the
government established a legally sufficient circumstantial case on
Count Four, the evidence that the plot "involv[ed] conduct
transcending national boundaries" lacked probative force. "[T]he
decision to grant or deny a new trial is committed to the sound
discretion of the district court," United States v. Andrade, 94
F.3d 9, 14 (1st Cir. 1996) (quoting United States v. Soto-Alvarez,
958 F.2d 473, 479 (1st Cir.), cert. denied, 506 U.S. 877 (1992)),
and the denial of a motion for a new trial is reviewed for manifest
abuse of that discretion, Gaw, 817 F.3d at 10.
The remedy of a new trial based on the weight of the evidence is
to be "sparingly used, and then only where there would be a
'miscarriage of justice'" if the verdict were left in place.
United States v. Rothrock, 806 F.2d 318, 322 (1st Cir. 1986)
(quoting United States v. Indelicato, 611 F.2d 376, 387 (1st Cir.
1979)). Wright points to the fact that the evidence of overseas
conduct was minimal and suspect, but his argument is cursory at
best, and he makes no attempt to satisfy this "miscarriage of
justice" standard or meet the demands of the deferential abuse-
of-discretion standard. Therefore, this argument also fails.
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defined that to you. Second, they have to
prove -- and the specific intent here, the
specific intent is different, but they've got
to prove specific intent, they've got to prove
it beyond a reasonable doubt. Here the
specific intent has got to be to commit acts
of terrorism transcending national
boundaries . . . .
Second, because it requires, um, transcending
national boundaries, in this one there has to
be conduct that they're planning within the
United States, the conspirators, and there
also has to be conduct outside the United
States, somewhere, anywhere outside the
national boundaries of the United States. The
conduct? Now the conduct can be communication
of some sort, encouragement, direction, but
it's got to be conduct outside the United
States . . . .
Now one or more members of the conspiracy, and
the government says the conspiracy is at least
Wright, Rahim, and Rovinski, they've got to
know about the foreign, um, communication, or
direction, or encouragement, or the foreign
conduct related to what they're doing, and it
doesn't mean that Wright has to know
specifically because you see if one is a
conspirator, not every conspirator has to know
everything every other conspirator is doing.
Conspiracy is like a partnership and if one of
the -- once they're a partnership, the things
that the partners do in furtherance of the
conspiracy is attributed to all the partners.
But at least they've got to show that that
Wright was -- that Wright himself, the person
who's on trial here, that he reasonably
understood that he was engaged in a conspiracy
to do conduct that transcends national
boundaries, that has this terrorist connection
as I've just defined it to you.
(Emphasis added).
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1.
Wright first argues that the District Court erroneously
instructed the jury that "conduct" can mean mere communication.
He contends that the "conduct [transcending national boundaries]
must be, in some way, criminal." Again, we "consider de novo
whether an instruction embodied an error of law." Ackell, 907
F.3d at 78.
Wright develops no argument as to why the "conduct
transcending national boundaries" to which the statute refers must
in and of itself be criminal. Moreover, although the instruction
does list "communication" as one example of "conduct," it
immediately emphasizes that such communication "[has] got to be
conduct outside the United States." This language tracks the
statute's definition of "conduct transcending national
boundaries." See id. § 2332b(g)(1) ("'[C]onduct transcending
national boundaries' means conduct occurring outside of the United
States in addition to the conduct occurring in the United
States."). Therefore, we see no legal error in the District
Court's instruction on "conduct transcending national boundaries."
2.
Wright also argues that the District Court erred by
refusing to instruct the jury, as he requested, that it needed to
find that he intended that the "act of terrorism" to be committed
would involve "conduct transcending national boundaries." We
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review the District Court's refusal to give an instruction
requested by the defendant for abuse of discretion and will "only
reverse if the proposed instruction is '(1) substantively correct;
(2) was not substantially covered in the charge actually delivered
to the jury; and (3) concern[ed] an important point in the trial
so that the failure to give it seriously impaired the defendant's
ability to effectively present a given defense.'" United States
v. Belanger, 890 F.3d 13, 32 (1st Cir. 2018) (quoting United States
v. González–Pérez, 778 F.3d 3, 15 (1st Cir. 2015)) (alteration in
original). "The burden is on the defendant, as the proponent of
the theory, to identify evidence adduced during the trial that
suffices to satisfy this standard." United States v. Ramos-
Paulino, 488 F.3d 459, 462 (1st Cir. 2007) (citing United States
v. Rodriguez, 858 F.2d 809, 814 (1st Cir. 1988))).
The District Court began its instruction with a
statement that the jury was required to find Wright's "specific
intent . . . to commit acts of terrorism transcending national
boundaries." Wright makes no argument that this statement in and
of itself failed adequately to inform the jury of the intent that
he contends that it was required to find that he had. Wright
contends, instead, that the District Court's instruction as a whole
- 58 -
failed to do so, because of a subsequent portion of the
instruction.
That portion of the instruction described conduct that
Wright need not "know specifically" for a jury to find him guilty
as a conspirator. That portion of the instruction also stated
that the government "[has] got to show that . . . Wright
himself . . . reasonably understood that he was engaged in a
conspiracy to do conduct that transcends national boundaries."
Wright contends that, in consequence of these statements, this
portion of the instruction implied that proof of his mere knowledge
that the plot was to commit an "act of terrorism" involving conduct
"transcending national boundaries" -- rather than proof that he
intended that the "act of terrorism" to be committed would involve
conduct "transcending national boundaries" -- was sufficient to
convict him of the conspiracy charge that he faced. Thus, Wright
contends, the District Court's instruction failed to
"substantially cover[]" his requested instruction with respect to
his intent.
But, the District Court's statement concerning the level
of knowledge of the conduct "transcending national boundaries"
that Wright needed to have did not purport to displace its previous
instruction that the jury needed to find that Wright had "the
specific intent . . . to commit acts of terrorism transcending
national boundaries." In fact, consistent with that conclusion,
- 59 -
we note that, elsewhere in the instructions, as the government
points out, the District Court summarized conspiracy law by stating
that "for every conspiracy, he’s got to have a specific intent,
and the government’s got to charge what the specific intent is,
and this is important. . . . He's got to have that specific
intent."
We must consider the instructions as a whole. See United
States v. Richardson, 225 F.3d 46, 54 (1st Cir. 2000). Wright
acknowledges that proof of intent is a distinct requirement for
this offense from proof of knowledge -- given that Wright was
charged with a conspiracy offense. We thus do not see how the
instructions regarding the knowledge requirement can fairly be
read to displace or water down the District Court's separate
instructions on intent, which Wright does not contend were, in and
of themselves, erroneous.
Insofar as Wright means to argue that the wording of the
instruction was "confusing" on this point, because the jury might
not differentiate between the "intent" and "knowledge"
requirements, he did not raise that specific argument below. Thus,
our review would be only for plain error, but Wright develops no
argument as to how he could meet that standard. See United States
v. Prieto, 812 F.3d 6, 17 (1st Cir. 2016).
The District Court, as we have noted, did make a
statement in which it instructed the jury that Wright did not need
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"to know specifically" about "the foreign conduct." Wright appears
to contend that, independent of his challenge to the instruction
based on how it described the element of "intent," this statement
by the District Court about what Wright needed to "know
specifically" was erroneous. He appears to contend, in this
regard, that this statement was likely to confuse the jury as to
whether Wright himself needed to know that the terrorist act to be
committed would involve conduct that "transcended national
boundaries."
But, insofar as Wright does mean to advance that argument
regarding the "knowledge" element, he cannot do so successfully.
At trial, Wright only objected to the District Court's "specific
intent" instruction, and did not raise any concerns about the
District Court's instruction as it pertained to what he was
required to know. Consequently, even if Wright does mean to raise
this argument about the "knowledge" instruction on appeal, our
review would be only for plain error. See Prieto, 812 F.3d at 17.
But, once again, Wright develops no argument as to how he could
meet that standard.
Nor do we see how he could. As the government points
out, the instruction regarding what he needed to "know
specifically" followed a discussion of particular types of conduct
that would qualify as "conduct transcending national boundaries,"
and a conspirator need not be proven to have known all the details
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of a conspiracy. Ocean, 904 F.3d at 31. Moreover, immediately
after instructing the jury as to what Wright did not need to "know
specifically," the District Court correctly stated that the
government needed to show that Wright "reasonably understood that
he was engaged in a conspiracy to do conduct that transcends
national boundaries." We thus cannot say that, when the
instructions are "considered as a whole," the portion of the
instruction that concerned what Wright had to "know specifically"
constituted a "clear and obvious" error. See id. (describing the
plain error standard in the context of jury instructions).
VI.
For the foregoing reasons, we affirm Wright's
convictions on Counts Two through Five, and we vacate Wright's
conviction on Count One and remand for further proceedings not
inconsistent with this opinion.
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