United States v. Mehanna

United States Court of Appeals
For the First Circuit
No. 12-1461
UNITED STATES OF AMERICA,
Appellee,
v.
TAREK MEHANNA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Sabin Willett, with whom Susan Baker Manning, Julie Silva
Palmer, Bingham McCutchen LLP, J. W. Carney, Jr., and Carney &
Bassil were on brief, for appellant.
Alex Abdo, Hina Shamsi, Matthew R. Segal, and Sarah R. Wunsch
on brief for American Civil Liberties Union and American Civil
Liberties Union of Massachusetts, amici curiae.
Pardiss Kebriaei, Baher Azmy, and Amna Akbar on brief for
Center for Constitutional Rights, amicus curiae.
Nancy Gertner, David M. Porter, and Steven R. Morrison on
brief for National Association of Criminal Defense Lawyers, amicus
curiae.
E. Joshua Rosenkranz and Orrick, Herrington & Sutcliffe LLP
on brief for Scholars, Publishers, and Translators in the Fields of
Islam and the Middle East, amici curiae.
Elizabeth D. Collery, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Mythili Raman,
Acting Assistant Attorney General, Criminal Division, Denis J.
McInerney, Acting Deputy Assistant Attorney General, Criminal
Division, Carmen M. Ortiz, United States Attorney, John P. Carlin,
Acting Assistant Attorney General, National Security Division, and
Joseph F. Palmer, Attorney, National Security Division, were on
brief, for appellee.
November 13, 2013
SELYA, Circuit Judge. Terrorism is the modern-day
equivalent of the bubonic plague: it is an existential threat.
Predictably, then, the government's efforts to combat terrorism
through the enforcement of the criminal laws will be fierce.
Sometimes, those efforts require a court to patrol the fine line
between vital national security concerns and forbidden
encroachments on constitutionally protected freedoms of speech and
association. This is such a case.
As if that were not enough, the case presents a welter of
other issues. At the risk of singling out one of many, we pay
particular heed to the need to appraise the district court's
efforts — in the face of an avalanche of emotionally charged
evidence — to hold steady and true the delicate balance between
probative value and unfairly prejudicial effect. This appraisal is
especially difficult in terrorism cases because it puts two
competing rights on a collision course: the government's right to
present its best case in support of its theories of guilt and the
defendant's right to be shielded from untoward prejudice arising
out of the introduction of evidence that is, at one and the same
time, probative yet inflammatory.
The stage can be set quite simply. In the court below,
the government aimed a barrage of terrorism-related charges at
defendant-appellant Tarek Mehanna. Following a protracted trial,
the jury convicted him on all counts. The defendant, ably
-3-
represented and supported by a coterie of earnest amici, challenges
not only these convictions but also his 210-month sentence. After
careful consideration of the massive record, the defendant's
prolific arguments, and the controlling law, we affirm.
I. OVERVIEW
We start with an overview of the charges lodged against
the defendant and then outline the travel of the case.
This appeal has its genesis in an indictment returned by
a federal grand jury sitting in the District of Massachusetts. In
its final form, the indictment charged the defendant with four
terrorism-related counts and three counts premised on allegedly
false statements. The terrorism-related counts included one count
of conspiracy to provide material support to al-Qa'ida (count 1);
one count of conspiracy to provide material support to terrorists
knowing or intending its use to be in violation of 18 U.S.C. §§ 956
and 2332 (count 2); one count of providing and attempting to
provide material support to terrorists, knowing and intending its
use to be in violation of 18 U.S.C. §§ 956 and 2332 (count 3); and
one count of conspiracy to kill persons in a foreign country (count
4). The remaining counts included one count of conspiracy to make
false statements as part of a conspiracy to commit an offense
against the United States (count 5) and two counts of knowingly and
willfully making false statements to federal officers (counts 6 and
7). See 18 U.S.C. §§ 371, 1001. For the reader's convenience, we
-4-
have annexed to this opinion an appendix delineating the pertinent
portions of the relevant statutes.
Counts 1 through 3 (the conspiracy and material support
charges) were based on two separate clusters of activities. The
first cluster centered on the defendant's travel to Yemen.1 We
briefly describe that trip.
In 2004, the defendant, an American citizen, was 21 years
old and living with his parents in Sudbury, Massachusetts. On
February 1, he flew from Boston to the United Arab Emirates with
his associates, Kareem Abuzahra and Ahmad Abousamra.2 Abuzahra
returned to the United States soon thereafter but the defendant and
Abousamra continued on to Yemen in search of a terrorist training
camp. They remained there for a week but were unable to locate a
camp. The defendant then returned home, while Abousamra eventually
reached Iraq.
The second cluster of activities was translation-centric.
In 2005, the defendant began to translate Arab-language materials
into English and post his translations on a website — at-Tibyan —
that comprised an online community for those sympathetic to al-
Qa'ida and Salafi-Jihadi perspectives. Website members shared
1
This cluster of activities also comprises the foundation for
count 4.
2
Abousamra was charged as a defendant in this case but
absconded in December of 2006. For aught that appears, he remains
a fugitive.
-5-
opinions, videos, texts, and kindred materials in online forums.
At least some offerings that the defendant translated constituted
al-Qa'ida-generated media and materials supportive of al-Qa'ida
and/or jihad.3
The false statement counts (counts 5 through 7) related
to statements that the defendant made during the course of an
investigation by the Federal Bureau of Investigation (FBI) into his
activities and those of his confederates. This investigation began
in or around 2006. The statements specified in the indictment
concerned the whereabouts and activities of one Daniel Maldonado,
as well as the purpose and ultimate destination of the defendant's
trip to Yemen.
After considerable pretrial skirmishing, not material
here, trial commenced. It lasted some 37 days. The district court
refused to grant judgment of acquittal on any of the seven counts.
The jury convicted the defendant on all of them, and the district
court imposed a 210-month term of immurement.
This timely appeal ensued. In it, the defendant
challenges his convictions, various evidentiary rulings, and his
sentence. We address below the more substantial components of this
asseverational array. A few points are not addressed at all
3
While "jihad" is a linguistically protean term that may
encompass both violent and nonviolent acts, the record makes clear
that the defendant used the term to refer to violent jihad — and
that is the meaning that we ascribe to it throughout this opinion.
-6-
because we have found them to be insufficiently developed, patently
meritless, or both. In addition, the amici have attempted to raise
some issues not preserved by the defendant. We disregard those
attempts. The law is settled that amici cannot ordinarily
introduce into a case issues not briefed and argued by the
appellant. See United States v. Chiaradio, 684 F.3d 265, 284 n.7
(1st Cir.) ("[W]e adhere to the established principle that an
amicus may not 'interject into a case issues which the litigants,
whatever their reasons might be, have chosen to ignore.'" (quoting
Lane v. First Nat'l Bank of Bos., 871 F.2d 166, 175 (1st Cir.
1989))), cert. denied, 133 S. Ct. 589 (2012). This case presents
no occasion for departing from this general rule.
II. THE TERRORISM-RELATED COUNTS
The centerpiece of the defendant's challenge to his
convictions on the four terrorism-related counts is his binary
claim that these convictions are neither supported by the evidence
nor constitutionally permissible.
A. Sufficiency of the Evidence.
We review de novo challenges to the sufficiency of the
evidence. See United States v. Gobbi, 471 F.3d 302, 308 (1st Cir.
2006). This review eschews credibility judgments and requires us
to take the facts and all reasonable inferences therefrom in the
light most favorable to the jury's verdict. See United States v.
Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). Using this lens, we
-7-
must determine whether a rational jury could have found that the
government proved each element of the crimes charged beyond a
reasonable doubt. See id. To withstand a sufficiency challenge,
a guilty verdict need not be an inevitable outcome; rather, "it is
enough that the finding of guilt draws its essence from a plausible
reading of the record." Id.
To put the defendant's sufficiency challenge into a
workable perspective, it is helpful to trace the anatomy of the
four terrorism charges. Count 1 charges the defendant with
conspiring to violate 18 U.S.C. § 2339B, which proscribes
"knowingly provid[ing] material support or resources to a foreign
terrorist organization." Id. § 2339B(a)(1). To satisfy the intent
requirement of section 2339B, a defendant must have "knowledge
about the organization's connection to terrorism." Holder v.
Humanitarian Law Project (HLP), 130 S. Ct. 2705, 2717 (2010). A
specific intent to advance the organization's terrorist activities
is not essential. See id.; see also United States v. Al Kassar,
660 F.3d 108, 129 (2d Cir. 2011) (identifying "two express scienter
requirements: that the aid be intentional and that the defendant
know the organization he is aiding is a terrorist organization or
engages in acts of terrorism").
In this case, the defendant does not dispute that al-
Qa'ida was and is a foreign terrorist organization (FTO). Nor
could he credibly do so. See Redesignation of Foreign Terrorist
-8-
Organizations, 68 Fed. Reg. 56,860, 56,862 (Oct. 2, 2003);
Redesignation of Foreign Terrorist Organization, 66 Fed. Reg.
51,088, 51,089 (Oct. 5, 2001); see also United States v. Farhane,
634 F.3d 127, 135 n.7 (2d Cir. 2011). By like token, the record
leaves no doubt that the defendant was aware of al-Qa'ida's status.
Count 2 charges the defendant with conspiring to violate
18 U.S.C. § 2339A, which proscribes "provid[ing] material support
or resources . . . , knowing or intending that they are to be used
in preparation for, or in carrying out," certain other criminal
activities. Id. § 2339A(a). The intent requirement under section
2339A differs somewhat from the intent requirement under section
2339B: to be guilty under section 2339A, the defendant must have
"provide[d] support or resources with the knowledge or intent that
such resources be used to commit specific violent crimes." United
States v. Stewart, 590 F.3d 93, 113 (2d Cir. 2009) (emphasis in
original). Thus, "the mental state in section 2339A extends both
to the support itself, and to the underlying purposes for which the
support is given." Id. at 113 n.18. As adapted to the
circumstances of this case, the government had to prove that the
defendant had the specific intent to provide material support,
knowing or intending that it would be used in a conspiracy to kill
persons abroad. See 18 U.S.C. §§ 956, 2332.
Count 3 is closely related to count 2. It charges the
defendant with violating, or attempting to violate, 18 U.S.C.
-9-
§ 2339A. The district court instructed the jury that it could find
the defendant guilty on count 3 under theories of direct liability,
attempt, aiding and abetting, or agency. Because the parties'
arguments on appeal target the attempt theory, we focus our
attention there.
Material support is defined identically for purposes of
sections 2339A and 2339B. Such support may take various forms,
including (as arguably pertinent here) the provision of
"service[s]" or "personnel." 18 U.S.C. §§ 2339A(b)(1),
2339B(g)(4). With respect to the Yemen trip, the government
accused the defendant of conspiring to provide himself as an al-
Qa'ida recruit (count 1); knowing or intending the use of this
material support in a conspiracy to kill persons abroad (count 2);
and attempting to provide this support, knowing or intending that
it would be used in such a conspiracy (count 3).
Count 4 bears a family resemblance to counts 1 through 3,
but it has a slightly different DNA. It charges the defendant with
violating 18 U.S.C. § 956, which proscribes conspiring in the
United States "to commit at any place outside the United States an
act that would constitute the offense of murder" if that act had
been committed within the United States. Id. § 956(a)(1). For
purposes of this statute, it does not matter whether the
defendant's coconspirators are located within the United States or
abroad. See id.
-10-
We turn next to the government's proof. In gauging the
sufficiency of that proof, we start with the Yemen trip and the
cluster of activities surrounding it.
The defendant asserts that this trip cannot bear the
weight of his convictions on any of the four terrorism-related
counts because the record shows nothing more than that he went to
Yemen to pursue Islamic studies. The government counters that the
evidence reflects a far more sinister purpose. The salient
question — at least with respect to the first three terrorism-
related counts — is whether the record, viewed in the light most
agreeable to the verdict, supports a finding that the defendant
conspired to provide or attempted to provide himself and others as
recruits (and, thus, as material support) for al-Qa'ida's terrorist
aims.
The government's evidence of the defendant's specific
intent with respect to his Yemen trip included his own actions,
discussions with others, coconspirator statements, and materials
that the defendant either kept on his computer or shared on the
Internet. The defendant contends that this evidence, in the
aggregate, showed nothing more than his participation in activities
protected by the First Amendment (e.g., discussing politics and
religion, consuming media related to those topics, and associating
with certain individuals and groups) and, thus, could not support
a finding of guilt. See Scales v. United States, 367 U.S. 203,
-11-
229-30 (1961); United States v. Spock, 416 F.2d 165, 169-74 (1st
Cir. 1969). But the defendant is looking at the evidence through
rose-colored glasses. We think it virtually unarguable that
rational jurors could find that the defendant and his associates
went abroad to enlist in a terrorist training camp.
On this point, the defendant's own statements are highly
probative. His coconspirators testified that the defendant
persistently stated his belief that engaging in jihad was "a duty
upon a Muslim if he's capable of performing it," and that this duty
included committing violence. The evidence further showed that,
following United States intervention in Iraq, the defendant
concluded "that America was at war with Islam," and saw American
"soldiers as being valid targets."
Acting upon these views, the defendant and his associates
— as early as 2001 — discussed seeking out a terrorist training
camp. Following these discussions, the defendant expressed
interest in receiving military-type training in order to
participate in jihad. The defendant made clear that he wished to
engage in jihad if he "ever had the chance" and that he and his
associates "would make a way to go." Together, they "discussed the
different ways people could get into Iraq, the different training
camps."
In these conversations, the defendant voiced his desire
to fight against the United States military forces in Iraq. He and
-12-
his associates went "in depth on details" regarding the logistics
of reaching such a terrorist training camp.
Coconspirator testimony shined a bright light on the
defendant's intent. This testimony made pellucid that the
defendant and his comrades traveled to Yemen "for the purpose of
finding a terrorist training camp" and "[e]ventually
. . . get[ting] into Iraq." The defendant's particular interest in
Iraq was because it was "an area that was being attacked." He took
the position that "there was an obligation for Muslims to stand up
and fight against invasion of Iraq and the U.S. forces in Iraq."
The defendant attempts to characterize these remarks as
mere political speech. The jury, however, was entitled to draw a
different inference: that the defendant's comments were evidence of
the formation and implementation of a scheme to go abroad, obtain
training, join with al-Qa'ida, and wage war against American
soldiers fighting in Iraq.
The timing of the trip and the furtiveness with which the
defendant acted provide circumstantial support for this conclusion.
The record contains evidence that the defendant abruptly suspended
his studies in Massachusetts during the school year and kept his
plans hidden from his parents. Prior to his departure, he gave his
brother a bag of personal belongings and asked his brother to
dispose of them. These belongings included "something about how to
make a bomb."
-13-
We note that the defendant and his associates purchased
round-trip airline tickets. In the travelers' own words, however,
the return portions were for use "[i]f things didn't work out," as
well as to avoid raising the sort of suspicion often associated
with one-way ticketing. And Abuzahra testified at trial that,
notwithstanding the return ticket, he did not expect to return to
the United States because "[t]he purpose of . . . going was to
basically fight in a war."
From this and other evidence, a rational jury could
conclude that the defendant did not intend to return to the United
States after leaving for Yemen. This intent dovetails with the
defendant's self-proclaimed jihadi agenda and makes the purpose of
the trip apparent.
There was more. The evidence showed that the defendant
and his associates had a plan of action for their arrival in Yemen.
Abousamra had obtained the name of a contact there "who was going
to get them to a military training camp." When the men traveled to
Yemen, they carried a piece of paper that contained the contact's
name.
To be sure, the Yemen trip did not bear fruit. Once
there, the defendant learned to his evident dismay that training
camps no longer existed in the area and "that it was nearly
impossible for anybody to get any training" there. The contact in
Yemen fizzled, telling the defendant and Abousamra that "all that
-14-
stuff is gone ever since the planes hit the twin towers." It is
consistent with the government's theory of the case, however, that
the defendant, when confronted with this news, expressed
disappointment that he had "left [his] life behind" based on faulty
information.
The government's case is strengthened by evidence that
the defendant and his associates engaged in a coverup that
continued long after the defendant's return from Yemen. The record
reflects that the defendant and his associates repeatedly discussed
how to align their stories and mislead federal investigators (in
point of fact, they formulated cover stories for their Yemen trip
even before the trip began). To facilitate the coverup, the
defendant and his cohorts attempted to obscure their communications
by using code words such as "peanut butter," "peanut butter and
jelly," or "PB&J" for jihad and "culinary school" for terrorist
training. Relatedly, the defendant encouraged an associate to
install an "encryptor" on his computer in order to make it "much
harder for [the FBI] to" monitor their online communications.
It is settled beyond hope of peradventure that evidence
of participation in a coverup can be probative of elements of the
underlying crime such as knowledge and intent. See United States
v. Davis, 623 F.2d 188, 192 (1st Cir. 1980) (citing Grunewald v.
United States, 353 U.S. 391, 405 (1957)). This is a commonsense
proposition, and "criminal juries are not expected to ignore what
-15-
is perfectly obvious." United States v. Echeverri, 982 F.2d 675,
679 (1st Cir. 1993).
There is another dimension to this aspect of the
government's case. Although the theory of guilt that we have been
discussing centered on the cluster of activities surrounding the
Yemen trip, it was bolstered by other evidence.
To begin, the defendant's desire to engage in jihad did
not end with the failed Yemen trip. Early in 2006, the defendant
told an associate, Ali Aboubakr, about how he had traveled to Yemen
to engage in jihad. The defendant invited Aboubakr to join him if
he elected to travel abroad for jihad again. He described "a camp"
that they could attend in Yemen, where they would "live with like,
300 other brothers" who "all walk around . . . with camo jackets
and AK-47s." The defendant urged Aboubakr, who was then a college
student, not to tell his father about his plan.
The defendant's communication with his "best friend,"
Daniel Maldonado, further evinced his determination to engage in
jihad.4 In December of 2006, Maldonado telephoned the defendant
from Somalia. During this call, the two discussed the logistics
needed for the defendant to join Maldonado in Somalia, including
transportation and travel documents. Maldonado said that he was
"in a culinary school" and "mak[ing] peanut butter and jelly."
4
At the time of trial, Maldonado was serving a ten-year
sentence pursuant to his guilty plea for receiving military-type
training from an FTO. See 18 U.S.C. § 2339D(a).
-16-
Maldonado testified that this was code language, familiar to the
defendant, denoting that Maldonado was in a terrorist training camp
and engaged in jihad.
Percipient witnesses testified that the defendant watched
jihadi videos with his associates for the purpose of "gain[ing]
inspiration from the[m]" and "becom[ing] like a mujahid."5 These
videos depicted events such as Marines being killed by explosives,
suicide bombings, and combat scenes glorifying the mujahideen. The
defendant was "jubilant" while watching them.
In a similar vein, the record is shot through with
evidence of the defendant's rabid support for al-Qa'ida, his "love"
for Osama bin Laden, his admiration of the September 11 hijackers,
and his conviction that the September 11 attacks were justified and
a "happy" occasion.
The defendant complains that some of this evidence bears
no direct connection to his Yemen trip. This plaint is true as far
as it goes — but it does not take the defendant very far. It
overlooks the abecedarian proposition that evidence of a
defendant's general mindset may be relevant to the issue of his
intent. See, e.g., United States v. Allen, 670 F.3d 12, 14-16 (1st
Cir. 2012). The record here is replete with such evidence.
5
"Mujahideen" (singular: "mujahid") is defined as "Muslim
guerilla warriors engaged in a jihad." The American Heritage
Dictionary of the English Language 1153 (4th ed. 2000). At trial,
Aboubakr described "mujahid" as meaning "somebody who partakes in
fighting."
-17-
The evidence we have summarized sufficed to ground a
finding, beyond a reasonable doubt, that the defendant traveled to
Yemen with the specific intent of providing material support to al-
Qa'ida, knowing or intending that this support would be used in a
conspiracy to kill persons abroad. It likewise sufficed to ground
a finding that the defendant attempted to provide such material
support, knowing or intending that it would be used in a conspiracy
to kill persons abroad. Finally, it sufficed to ground a finding
that the defendant, while in the United States, conspired with
others in a plan to kill persons abroad. The evidence was,
therefore, ample to convict on the four terrorism-related counts.
B. The Defendant's Rejoinders.
Despite the obvious logic of the government's position
and the wealth of evidence that supports it, the defendant labors
to undermine the four terrorism-related convictions. His efforts
take two different directions — one a frontal assault and the other
an end run. We address each in turn.
1. Scholarly Pursuits. The defendant argues that the
only reasonable interpretation of his Yemen trip and the activities
surrounding it is an innocent one: he sojourned to Yemen solely for
the purpose of studying there. He describes himself as a devoted
scholar of Islam and asserts that he visited Yemen, specifically,
because the purest form of Arabic is spoken there. In support, he
reminds us that he toured a school while in the country.
-18-
Relatedly, the defendant suggests that, regardless of his
associates' purpose and intent, he was far more moderate than they.
This moderation allegedly included adherence to certain beliefs
antithetic to al-Qa'ida canon. Among these beliefs was the
doctrine of "aman," which the defendant describes as "a covenant to
obey the law within a country that permits practice of the faith."
As he would have it, his adherence to aman would prohibit him from
targeting American troops.
We readily agree that the record contains some evidence
supporting the defendant's alternative narrative. Yet, that
evidence does not eclipse the plethora of proof pointing in the
opposite direction. When all was said and done, the jury heard and
rejected the defendant's innocent explanation of the events that
occurred. It was plainly entitled to do so. See United States v.
Olbres, 61 F.3d 967, 972-73 (1st Cir. 1995).
To gain a conviction, the government need not
"eliminat[e] every possible theory consistent with the defendant's
innocence." United States v. Noah, 130 F.3d 490, 494 (1st Cir.
1997). It is the jury's role — not that of the Court of Appeals —
to choose between conflicting hypotheses, especially when such
choices depend on the drawing of inferences and elusive concepts
such as motive and intent. See id.; Olbres, 61 F.3d at 972-73.
2. The Alternative Theory of Guilt. The defendant's
second rejoinder represents an attempt to change the trajectory of
-19-
the debate. He points out that the indictment identifies his
translations as culpable activity; that the government introduced
copious evidence in support of a theory of guilt based on the
translations; that it argued this theory to the jury; and that the
jury returned a general verdict. Building on this platform, he
argues that even if the evidence of the Yemen trip is sufficient to
ground his terrorism-related convictions, those convictions cannot
stand because they may have been predicated on protected First
Amendment speech.
It is pointless to speak in the abstract of a verdict
predicated on protected conduct. The Court of Appeals is not a
sorting hat, divining which criminal defendants' stories fall into
constitutionally protected and unprotected stacks. Cf. J.K.
Rowling, Harry Potter and the Sorcerer's Stone 113-22 (1997).
Instead, an appellate court's role is to discern what, if any,
errors marred the trial below. This inquiry requires us to focus
on the relevant actors in the trial and not to engage in an
untethered academic analysis of the verdict itself.
Personification has its limits. Verdicts, not being
sentient, cannot err on their own; rather, any errors in a verdict
come from the actors who have contributed to it. For example, a
trial judge can commit error by instructing the jury that it can
convict a defendant for wholly legal conduct. See, e.g., United
States v. Tobin, 480 F.3d 53, 56-58 (1st Cir. 2007). By the same
-20-
token, jurors can err by returning a guilty verdict that is
unsupported by legally sufficient evidence. See, e.g., United
States v. Valerio, 48 F.3d 58, 63-65 (1st Cir. 1995).
When it comes to the argument that the defendant makes
here — that one of two possible grounds for the general verdict is
suspect — the classification of the specific error makes all the
difference. If "a mistake about the law" underlies the argument,
reversal may be necessary. Griffin v. United States, 502 U.S. 46,
59 (1991); see Yates v. United States, 354 U.S. 298, 312 (1957);
Stromberg v. California, 283 U.S. 359, 367-68 (1931). Such a
"legal error" occurs, for instance, when "jurors have been left the
option of relying upon a legally inadequate theory" by the trial
court's charge. Griffin, 502 U.S. at 59. If, however, "a mistake
concerning the weight or the factual import of the evidence"
underlies the argument, the verdict must be upheld as long as the
evidence is adequate to support one of the government's alternative
theories of guilt. Id.
With this short primer in place, we turn to the
defendant's asseveration that the district court committed legal
error in charging the jury with respect to his translations. At
first blush, this asseveration is counter-intuitive because the
court below evinced a keen awareness of the First Amendment issues
implicated here. Pertinently, the court instructed:
Now, this is important. Persons who
act independently of a foreign terrorist
-21-
organization to advance its goals or
objectives are not considered to be working
under the organization's direction or control.
A person cannot be convicted under this
statute when he's acting entirely
independently of a foreign terrorist
organization. That is true even if the person
is advancing the organization's goals or
objectives. Rather, for a person to be guilty
under this count, a person must be acting in
coordination with or at the direction of a
designated foreign terrorist organization,
here, as alleged in Count 1, al Qa'ida.
You need not worry about the scope or
effect of the guarantee of free speech
contained in the First Amendment to our
Constitution. According to the Supreme Court,
this statute already accommodates that
guarantee by punishing only conduct that is
done in coordination with or at the direction
of a foreign terrorist organization. Advocacy
that is done independently of the terrorist
organization and not at its direction or in
coordination with it does not violate the
statute.
Put another way, activity that is
proven to be the furnishing of material
support or resources to a designated foreign
terrorist organization under the statute is
not activity that is protected by the First
Amendment; on the other hand, as I've said,
independent advocacy on behalf of the
organization, not done at its direction or in
coordination with it, is not a violation of
the statute.
The defendant assigns error to these instructions in
three respects. He says that they (i) fail to define the term
"coordination"; (ii) incorrectly direct the jury not to consider
the First Amendment; and (iii) should have been replaced by a set
-22-
of instructions that he unsuccessfully proffered to the district
court.6
Where, as here, preserved claims of error relate to the
correctness of a jury instruction as a matter of law, our review is
de novo. See United States v. Sasso, 695 F.3d 25, 29 (1st Cir.
2012). None of the defendant's three claims of instructional error
survives this review.
Although we agree that coordination can be a critical
integer in the calculus of material support, the defendant's first
assignment of instructional error is simply wrong. While the
district court did not use the phrase "is defined as," it
nonetheless defined the term "coordination" functionally. It
explained to the jury in no fewer than three different ways that
independent advocacy for either an FTO or an FTO's goals does not
amount to coordination. This distinction, which the court
accurately characterized as "important," went to the heart of the
matter.
Moreover, the district court's instructions harmonize
with the text of the material support statute, which reads:
"Individuals who act entirely independently of the [FTO] to advance
6
The defendant makes a fleeting argument that the district
court's "coordination" instruction was directed only to count 1 and
that the district court failed to instruct on the coordination
element with regard to counts 2 and 3. This argument is
disingenuous: it is nose-on-the-face plain that the district court
incorporated its "coordination" instruction by reference into its
instructions on counts 2 and 3. No more was exigible.
-23-
its goals or objectives shall not be considered to be working under
the [FTO]'s direction and control." 18 U.S.C. § 2339B(h). The
context made clear that the government's "translations-as-material-
support" theory was premised on the concept that the translations
comprised a "service," which is a form of material support within
the purview of the statute. See id. §§ 2339A(b)(1), 2339B(g)(4).
The HLP Court explained that "service," as material support,
"refers to concerted activity, not independent advocacy." 130 S.
Ct. at 2721. The instructions given to the jury embraced this
construct.
In sum, the district court's instructions captured the
essence of the controlling decision in HLP, where the Court
determined that otherwise-protected speech rises to the level of
criminal material support only if it is "in coordination with
foreign groups that the speaker knows to be terrorist
organizations." Id. at 2723. If speech fits within this taxonomy,
it is not protected. See id. at 2722-26. This means that
"advocacy performed in coordination with, or at the direction of,"
an FTO is not shielded by the First Amendment. Id. at 2722. The
district court's instructions tracked the contours of this legal
framework. The court appropriately treated the question of whether
enough coordination existed to criminalize the defendant's
translations as factbound and left that question to the jury. See,
-24-
e.g., Jones v. United States, 526 U.S. 227, 247 n.8 (1999). We
discern no error.
The second assignment of instructional error is no more
robust. The defendant contends that the court below erroneously
foreclosed his argument that his activities were constitutionally
protected by telling the jury: "You need not worry about the scope
or effect of the guarantee of free speech contained in the First
Amendment to our Constitution."
This contention is futile. The very next sentence of the
instructions makes the district court's purpose pellucid:
"According to the Supreme Court, this statute already accommodates
that guarantee by punishing only conduct that is done in
coordination with or at the direction of a foreign terrorist
organization." The instructions, read in context, did not tell the
jury to blind itself to the protections of the First Amendment.
Instead, they appropriately advised the jury that the material
support statute, as well as the instructions the district court
gave regarding that statute, already accounted for those
protections.
In all events, it is a bedrock principle that "[t]he role
of the jury in a federal criminal case is to decide only the issues
of fact." Berra v. United States, 351 U.S. 131, 134 (1956). In
line with this principle, the district court properly barred the
jury from embarking on an independent evaluation of First Amendment
-25-
protections. See United States v. Victoria-Peguero, 920 F.2d 77,
86 (1st Cir. 1990); see also United States v. Fincher, 538 F.3d
868, 872 (8th Cir. 2008).
The defendant's third assignment of instructional error
calumnizes the district court for failing to give his proffered
instructions on the interaction of the material support statutes
and the prophylaxis afforded by the First Amendment. We will
reverse a trial court's refusal to give a proffered jury
instruction only if the proffered instruction is substantively
correct, not otherwise covered in substance in the court's charge,
and of sufficient import that its omission seriously affects the
defendant's ability to present his defense. See Chiaradio, 684
F.3d at 281; United States v. Prigmore, 243 F.3d 1, 17 (1st Cir.
2001); United States v. McGill, 953 F.2d 10, 13 (1st Cir. 1992).
In the case at hand, the defendant's proffered
instructions were not substantively correct but, rather, contained
legally flawed propositions. There is nothing to be gained by
citing book and verse. A single illustration suffices.
The proffered instruction stated: "the person [providing
the alleged support] must have a direct connection to the group
[FTO] and be working directly with the group [FTO] for it to be a
violation of the statute." Contrary to the tenor of this
statement, a direct link is neither required by statute nor
mandated by HLP.
-26-
We add, moreover, that to the extent that the proffered
instructions were sound, they were covered in substance by the
charge actually given. Here, too, a single example makes the
point.
The proffered instructions stated: "[m]ere association
with terrorists or a terrorist organization is not sufficient to
meet the element of 'in coordination with.'" What the district
court told the jury is perfectly consistent with this language.
That ends the matter: a defendant has a right to an instruction on
his theory of the case, but he has no right to insist that the
trial court parrot his preferred wording. See, e.g., United States
v. DeStefano, 59 F.3d 1, 2-3 (1st Cir. 1995); McGill, 953 F.2d at
12.
The bottom line is that the defendant's assault on the
district court's jury instructions is without merit. And, having
eliminated the defendant's claims of legal error, we are left only
with his claim that the jury's finding of "coordination" lacked
sufficient supporting evidence.
As noted above, that inquiry is foreclosed by Griffin.
We already have determined that the cluster of activities
surrounding the defendant's Yemen trip supplied an independently
sufficient evidentiary predicate for the convictions on the
terrorism-related counts. The defendant's translation-related
activities were tendered to the jury only as an alternative basis
-27-
for those convictions. Even if that proof is factually
insufficient, Griffin dictates that we affirm based on the
government's Yemen theory.
It makes no difference that the absence of facts showing
coordination with al-Qa'ida might have resulted in constitutionally
protected conduct. The dividing line that the Supreme Court drew
in Griffin was based on the distinct roles of judge and jury in our
system of justice, not the presence vel non of constitutional
issues. We entrust trial judges with the grave responsibility of
giving juries a proper view of the law, and when they fail to do
so, reversal may be warranted because "there is no reason to think
that [jurors'] own intelligence and expertise will save them from
that error." Griffin, 502 U.S. at 59.
On the other hand, jurors are endowed with expertise in
factfinding. See id. That presumed expertise is not vitiated even
when performing the factfinding task requires them to separate
constitutionally protected conduct from illegal conduct. See,
e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-82 (1964).
Thus, Griffin wisely teaches that there is no need for courts to
save jurors from themselves "when they have been left the option of
relying upon a factually inadequate theory, since jurors are well
equipped to analyze the evidence." 502 U.S. at 59 (emphasis in
original).
-28-
That brings down the final curtain. We have found the
defendant's claims of legal error with respect to his translation
activities wanting, and we have no occasion to examine the factual
sufficiency of those activities as a basis for his terrorism-
related convictions. Even if the government's translation-as-
material-support theory were factually insufficient, we would not
reverse: the defendant's convictions on the affected counts are
independently supported by the mass of evidence surrounding the
Yemen trip and, under Griffin, we need go no further.7
C. Odds and Ends.
The defendant invites us to overturn his conviction on
some or all of the terrorism-related counts for a variety of
additional reasons. Without exception these reasons are meritless.
We dispose of them summarily.
1. Variance. The defendant perceives a fatal variance
between the conspiracies charged in counts 1, 2, and 4 and what he
visualizes as a hodge-podge of other conspiracies captured by the
7
Citing strong circumstantial evidence that the jury rested
these convictions on the Yemen trip — for example, the conviction
on count 4 was necessarily predicated on the Yemen trip (not the
translations), making it highly likely that the convictions on
counts 1, 2, and 3 shared the same provenance — the government
argues strenuously that any instructional error would have been
harmless. See Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per
curiam) (holding that constitutionally or legally defective jury
instruction becomes reversible error only if it "had substantial
and injurious effect or influence in determining the jury's
verdict" (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993))).
Inasmuch as we discern no instructional error, we do not reach this
argument.
-29-
proof at trial. The accepted rule is that when the government's
case at trial varies from the crime limned in the charging document
and that variance is both material and prejudicial, an ensuing
conviction must be set aside. See United States v. Boylan, 898
F.2d 230, 246-48 (1st Cir. 1990).
We need not tarry. As we have explained, questions about
the number of conspiracies that are in play and about their
structure typically "present matters of fact suitable for
resolution by a jury." Sepulveda, 15 F.3d at 1190. Hence,
variance claims are normally reviewed on appeal as matters of
evidentiary sufficiency. See id.
Silhouetted against this backdrop, what we have said
about the defendant's failed sufficiency argument, see supra Part
II(A), not only shows that the government proved the conspiracies
that it charged but also refutes the defendant's variance claim.
Based upon a careful perscrutation of the record, we are confident
that no material and prejudicial variance exists in this case. The
government introduced sufficient evidence to prove each of the
conspiracies with which the defendant was charged.
We add, moreover, that the district court's instructions
focused the jury with laser-like intensity on these particular
conspiracies. And even though the defendant labored to splinter
the government's proof into a myriad of separate conspiracies, the
-30-
jury supportably rejected this effort at deconstruction. That ends
the matter.
2. Legal Impossibility. The defendant argues that
counts 2 and 3 must fail because they depend on a legal
impossibility. See United States v. Dixon, 449 F.3d 194, 202 n.2
(1st Cir. 2006) (explaining that "legal impossibility exists when
a defendant sets out to achieve an objective which, even if
achieved as envisioned, will not constitute a crime").
Specifically, he maintains that he could not have had an intent to
provide material support knowing or intending its use to violate
either section 956 or section 2332. In terms of section 956, he
envisions a legal impossibility because "[p]utative recipients of
the 'personnel' could not 'use' that support, as section 2339A
contemplates, to commit a predicate crime requiring conspiracy
within the United States, because by definition, those recipients
were contemplated to be abroad." He further argues that legal
impossibility results because the government's theory of the case
fell short of making out a conspiracy to commit "an act that would
constitute the offense of murder." 18 U.S.C. § 956(a)(1).
With respect to section 2332, the defendant contends that
legal impossibility forecloses conviction because the government
did not make out "a contemplated conspiracy or attempt occurring
outside the United States to make use of [the defendant's] or
Abousamra's person to kill some national of the United States."
-31-
These convoluted theories are difficult to follow. We
need not wend our way, step by step, through the intricate
labyrinth that the defendant constructs. It suffices to say that,
in the last analysis, his theories raise questions of factual,
rather than legal, impossibility. As such, their resolution
depends on the sort of functions that the criminal law commits to
juries, namely, how one looks at the facts of the case and what
inferences one chooses to draw.
At any rate, dressing up an argument in different raiment
rarely improves its prospects. Stripped of rhetorical flourishes,
the defendant's legal impossibility theories are nothing more than
creative reformulations of discrete aspects of his previously
rejected sufficiency claim. What matters is that the evidence in
this case was adequate to prove all of the elements of the
terrorism-related counts. See supra Part II(A). The defendant's
legal impossibility theories therefore fail.
3. Vagueness. The defendant makes a cursory argument
that the district court's "construction" of the material support
laws was unconstitutionally vague. To the extent that this
argument is preserved, it is foreclosed by HLP, 130 S. Ct. at 2718-
22. Consequently, we reject it out of hand.
4. The Certification Requirement. The defendant objects
that his convictions on counts 2 and 3 are invalid because of the
government's failure to comply with the certification requirement
-32-
adumbrated in 18 U.S.C. § 2332(d). This requirement reads: "No
prosecution for any offense described in this section shall be
undertaken . . . except on written certification . . . that, in the
judgment of the certifying official, such offense was intended to
coerce, intimidate, or retaliate against a government or a civilian
population." Id.
The government concedes that no such certification was
obtained. In the circumstances of this case, however, the absence
of a certification affords the defendant no sanctuary.
To begin, the defendant did not raise this objection in
the district court. Our review, therefore, is only for plain
error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). To make out plain error, the defendant must show "(1) that
an error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." Id.
There is no plain error here. In the first place, it is
doubtful that the certification requirement applies to this case.
The defendant was not prosecuted for an offense "described in"
section 2332 but, rather, for an offense described in section 2339A
(which references section 2332 as a specific-intent element).
Given this uncertainty, any error that may have transpired would
not be "clear or obvious."
-33-
At any rate, the defendant cannot vault the third hurdle
erected by the plain error standard: on this record, he cannot show
that his substantial rights were adversely affected by the absence
of a certification. The defendant's convictions under section
2339A were premised on knowledge and intent that his material
support would be used for violations of either section 2332 or
section 956. On a separate count — count 4 — the jury found that
the defendant violated section 956. Thus, his section 2339A
conviction was supported by an intent to violate section 956. This
makes it highly unlikely that the inclusion of the reference to
section 2332 had any substantial effect. See Turner v. United
States, 396 U.S. 398, 420 (1970) (explaining "that when a jury
returns a guilty verdict on an indictment charging several acts in
the conjunctive, . . . the verdict stands if the evidence is
sufficient with respect to any one of the acts charged").
5. Count 3. The defendant mounts a singular attack on
count 3, which charged him with attempted violation of section
2339A; that is, attempting to provide material support knowing or
intending its use in a conspiracy to kill persons abroad. The
defendant suggests that the government failed to prove that he
engaged in the substantial step necessary to undergird an attempt
conviction. This suggestion is plainly unavailing.
We agree with the defendant that a conviction for attempt
necessitates proof that the defendant took at least one substantial
-34-
step toward the actual commission of the charged crime. See, e.g.,
United States v. Pires, 642 F.3d 1, 8 (1st Cir. 2011); Gobbi, 471
F.3d at 309. Here, however, the Yemen trip constituted a very
substantial step toward the attempted commission of the crime. The
defendant suspended his studies, instructed his brother to destroy
a bag of his possessions, and flew to Yemen armed with the name of
a possible al-Qa'ida liaison. The jury was fully entitled to find
that these actions satisfied the "substantial step" requirement.
In an effort to efface this reasoning, the defendant
posits that the Yemen trip could not have constituted a substantial
step toward the commission of the crime because there was no al-
Qa'ida presence in Yemen in February of 2004. Notwithstanding
these importunings, we need not decide whether or when al-Qa'ida
pulled up stakes and quit Yemen. Even if we assume arguendo that
al-Qa'ida retreated before the defendant's trip, the existence of
a substantial step would not be called into question. Such a
departure would, at most, have created a factual impossibility; and
as we previously have explained, "factual impossibility is not a
defense to . . . liability . . . for inchoate offenses such as
conspiracy or attempt." Dixon, 449 F.3d at 202.
III. THE FALSE STATEMENT COUNTS
The defendant does not contest the sufficiency of the
evidence underpinning his convictions on counts 5 (making false
statements as part of a conspiracy to commit an offense against the
-35-
United States) and 7 (making false statements anent the purpose and
ultimate destination of the Yemen trip). He does, however,
interpose a sufficiency challenge to his conviction on count 6. We
turn next to this challenge.
Count 6 charges a violation of 18 U.S.C. § 1001(a)(2),
which criminalizes "knowingly and willfully . . . mak[ing] any
materially false, fictitious, or fraudulent statement or
representation" to federal officials. The statements on which this
count depends pertain to the whereabouts and activities of the
defendant's friend and compatriot, Maldonado. These utterances
were made when FBI agents questioned the defendant in December of
2006. In response to direct queries, the defendant told the agents
that he had last heard from Maldonado two weeks earlier and that
Maldonado was living in Egypt, working as a website steward. These
statements were unquestionably false: the defendant had spoken to
Maldonado within the week and knew that Maldonado was in Somalia
and training for jihad.
Still, even proof of knowing and willful falsity, without
more, is not enough to sustain a conviction under section
1001(a)(2). Targeted statements must not only be false but also
materially so. See United States v. Sebaggala, 256 F.3d 59, 64-65
(1st Cir. 2001).
The defendant seizes on this additional requirement. He
points out that when the agents questioned him, they knew full well
-36-
where Maldonado was and what he was doing. They also knew that he
had spoken with Maldonado by telephone within a matter of days.
Building on this foundation, the defendant argues that
the agents were asking him questions to which they already knew the
answers for the sole purpose of catching him in a lie. Thus, his
argument runs, his false statements cannot be material because the
agents knew that his statements were false ab initio and,
therefore, were not misled by them. Inasmuch as this argument
challenges the sufficiency of the government's evidence, it
engenders de novo review. See Gobbi, 471 F.3d at 308.
The defendant is fishing in an empty stream. To satisfy
the materiality requirement of section 1001(a)(2), a statement must
have "a natural tendency to influence, or [be] capable of
influencing, a governmental function." Sebaggala, 256 F.3d at 65.
But the statement need not actually have influenced the
governmental function. It is enough that the "statement could have
provoked governmental action." Id.; see United States v. Edgar, 82
F.3d 499, 510 (1st Cir. 1996) (explaining that "the standard is not
whether there was actual influence, but whether [the statement]
would have a tendency to influence"). Thus, the proper inquiry is
not whether the tendency to influence bears upon a particular
aspect of the actual investigation but, rather, whether it would
bear upon the investigation in the abstract or in the normal
-37-
course. See United States v. McBane, 433 F.3d 344, 350-51 (3d Cir.
2005); Edgar, 82 F.3d at 510.
Under this formulation, the knowledge of the interrogator
is irrelevant to the materiality of the defendant's false
statements. See United States v. Land, 877 F.2d 17, 20 (8th Cir.
1989). With this in mind, courts have rejected variations of the
metaphysical proposition advanced by the defendant with a
regularity bordering on the monotonous. See, e.g., United States
v. Lupton, 620 F.3d 790, 806-07 (7th Cir. 2010); McBane, 433 F.3d
at 350-52; Edgar, 82 F.3d at 510; Land, 877 F.2d at 20; see also
Brogan v. United States, 522 U.S. 398, 399-400, 402 (1998) (finding
defendant's false response to be material where agents knew correct
answer at time of questioning, but not elaborating on this point).
In the case at hand, it is clear beyond hope of
contradiction that the defendant's false statements about Maldonado
had a natural tendency to influence an FBI investigation into
terrorism. After all, Maldonado was hip-deep in terrorism-related
antics. During the critical interview, the defendant was plainly
attempting to obscure both Maldonado's participation in terrorist
endeavors and the telephone call in which he and Maldonado had
discussed jihad and terrorist training. The misinformation
imparted by the defendant thus had a natural propensity to
influence an FBI investigation into terrorist activity.
-38-
To cinch matters, the defendant's mendacity was
undertaken for the purpose of misdirecting the ongoing FBI
investigation (or so the jury could have found). This is an
important datum: where a defendant's statements are intended to
misdirect government investigators, they may satisfy the
materiality requirement of section 1001 even if they stand no
chance of accomplishing their objective. See Lupton, 620 F.3d at
806-07. This principle makes eminently good sense: it would stand
reason on its head to excuse a defendant's deliberate prevarication
merely because his interrogators were a step ahead of him.
To say more on this point would be supererogatory. The
defendant's challenge to the sufficiency of the evidence on count
6 is a losing proposition.
IV. THE EVIDENTIARY RULINGS
The next leg of our journey takes us through a series of
hotly contested evidentiary rulings. Although these claims of
error are somewhat interrelated, we subdivide them into five
segments.
A. Coconspirator Statements.
The challenged evidentiary rulings concern four sets of
out-of-court statements attributed to coconspirators and admitted
at trial. The first two sets of declarations were made by closely
related coconspirators and were uttered either before or after the
Yemen trip. The remaining two sets comprise remarks of more remote
-39-
personages, whom the government also alleges were coconspirators.
Although the defendant unleashes a torrent of arguments against the
admission of these statements, we discern no reversible error.
The principles that govern the admission of coconspirator
statements are old hat. Out-of-court statements offered to prove
the truth of the matter asserted are generally regarded as hearsay
and, thus, inadmissible. See Fed. R. Evid. 801(c), 802. But there
are exceptions. Pertinently for present purposes, when such a
statement is offered against a party and is shown to have been
"made by the party's coconspirator during and in furtherance of the
conspiracy," it is "not hearsay" and therefore admissible. Fed. R.
Evid. 801(d)(2)(E).
If a defendant challenges the admissibility of such a
statement when it is offered against him, the trial court may
provisionally admit the evidence and defer its final ruling until
the close of all the evidence. See United States v. Perez-Ruiz,
353 F.3d 1, 12 (1st Cir. 2003). This procedure imposes a two-fold
obligation upon a protesting defendant: he must object when the
evidence is first offered and again at the close of all the
evidence. See id.
In evaluating a trial court's refusal to sustain such a
close-of-evidence objection, we ask whether the record adequately
evinces "that a conspiracy embracing both the declarant and the
defendant existed, and that the declarant uttered the statement
-40-
during and in furtherance of the conspiracy." United States v.
Piper, 298 F.3d 47, 52 (1st Cir. 2002) (internal quotation mark
omitted). The party seeking the benefit of the hearsay exception
(here, the government) must carry the devoir of persuasion on this
inquiry and establish the necessary elements by a preponderance of
the evidence. Id. "If these conditions are met, and if there is
corroboration in the form of extrinsic evidence of the declarant's
involvement in the conspiracy, then the hearsay barrier is avoided
and the statement may be admitted." United States v. Bradshaw, 281
F.3d 278, 283 (1st Cir. 2002).
1. Pre-Yemen Statements. With this framework in place,
we turn first to certain statements that preceded the Yemen trip.
The Yemen trip did not take place until February of 2004.
Abousamra had sought to locate a terrorist training camp in 2002.
At that time, Pakistan captured his fancy. He solicited assistance
from Hassan Masood, a confederate who had particularized knowledge
about that country.
Armed with Masood's information, Abousamra traveled to
Pakistan twice that year. Upon returning, he complained to Masood
about the futility of his quest. Abousamra nonetheless noted that
this cloud had a silver lining: in his travels, he had come across
a sympathetic contact who had urged him to "do whatever [he could]
back in America."
-41-
That advice presaged conversations that took place in
2003 among Abousamra, Abuzahra, and the defendant. Fueled by anger
over the intervention by the United States in Iraq, the three men
agreed in principle to participate in jihad against the United
States. They discussed possible ways to implement this consensus,
including the assassination of political leaders, attacks on
military bases, and incursions at shopping malls.
Ultimately, the trio abandoned any plans for mischief-
making in the United States. At that point, Abousamra conversed
with Jason Pippin, a person whom he had met through online Salafi-
Jihadi forums. Abousamra sought Pippin's counsel about a possible
Yemen trip.
At trial, the government used several of the statements
that had been made during the foregoing discussions. The defendant
argues that nothing Abousamra said at those times can satisfy the
strictures of Rule 801(d)(2)(E). He insists that all the
statements preceded the formation of any plan to go to Yemen and,
a fortiori, did not take place during the conspiracy. He adds
that, even when viewed in the most sinister light, the statements
relate to separate conspiracies that he never joined. Because the
defendant challenges these statements for the first time on appeal,
our review is for plain error. See Duarte, 246 F.3d at 60.
We find no error, plain or otherwise. To begin, we
already have rejected the defendant's atomizing conception that
-42-
each distinct terrorism-oriented thought must be treated as its own
separate conspiracy. See supra Part II(C)(1). Our rejection is
consistent with the truism that a conspiracy may "shift its
priorities from time to time without sacrificing its essential
identity." Sepulveda, 15 F.3d at 1191. That the conspiracy
shifted its focus from Pakistan to domestic attacks and then to
Yemen did not rob it of its essential purpose: waging jihad against
the United States. The means may have changed from time to time,
but the end remained the same.
Once this essential purpose is understood, it becomes
evident that none of the statements at issue predate the formation
of the relevant conspiracy. All of the statements follow the
discussions between the defendant and his associates in 2001 about
terrorist training camps. What is more, the defendant agreed to
participate in jihad against the United States before Abousamra's
exploration of domestic attacks and the trio's investigation into
the plausibility of a Yemen trip.
To be sure, Abousamra's flirtation with Pakistan and his
conversations with Masood occurred earlier. But even though these
remarks came beforehand, the law is settled that a "statement made
by a coconspirator, if in furtherance of the conspiracy, is
. . . admissible against the defendant even if made prior to the
defendant's involvement in the conspiracy." United States v.
Masse, 816 F.2d 805, 811 (1st Cir. 1987). Judge Aldrich
-43-
graphically described the underlying rationale: "[A] conspiracy is
like a train. When a party knowingly steps aboard, he is part of
the crew, and assumes conspirator's responsibility for the existing
freight . . . ." United States v. Baines, 812 F.2d 41, 42 (1st
Cir. 1987).
2. Post-Yemen Statements. After Abuzahra bailed out of
the Yemen trip, he told Masood his reasons for doing so. For his
part, Abousamra recounted his travels in Yemen and beyond to a
number of witnesses. These post-Yemen oral histories were admitted
at trial. The defendant maintains that by the time these
statements were made, the conspiracy had ended as to the
declarants: he says that Abuzahra abandoned the conspiracy by
leaving Yemen early and that, by the time Abousamra spoke, there
was no one left with whom he could have been conspiring. Because
these fact-laden claims of error were preserved below, we review
them for clear error. See Sepulveda, 15 F.3d at 1180.
With respect to Abousamra, the defendant's attempt to
limit the conspiracy to Yemen alone casts the net too narrowly. As
we already have explained, the defendant continued to seek
opportunities to engage in jihad well after his return from Yemen.
See supra Part II(A). Furthermore, the defendant's claim ignores
entirely the charged conspiracy to provide false information to the
government — a conspiracy that continued long after the Yemen trip.
-44-
The defendant's plaint that Abuzahra abandoned the
conspiracy is equally asthenic. "[I]n order to withdraw from a
conspiracy, a conspirator must act affirmatively either to defeat
or disavow the purposes of the conspiracy," such as by confessing
to the authorities or informing his coconspirators that he has
forsaken the conspiracy and its goals. Piper, 298 F.3d at 53
(internal quotation marks omitted). Abuzahra took no such
affirmative steps but, rather, merely eschewed contact with
Abousamra and the defendant upon his return from Yemen. Avoiding
contact with one's coconspirators, without more, is not in any way,
shape, or form tantamount to abandoning the conspiracy.
Consequently, the record in this case does not support the notion
that Abuzahra abandoned the conspiracy before recounting his
travels. See id. (explaining that "[m]ere cessation of activity in
furtherance of the conspiracy does not constitute withdrawal from
a conspiracy" (alteration in original) (internal quotation marks
omitted)).
There is no need to tarry. We conclude, without serious
question, that the court below did not clearly err in admitting the
post-Yemen statements.
3. At-Tibyan Statements. We next consider the
statements of more remote figures alleged to be among the
defendant's coconspirators. Once again, we split the inquiry into
two parts. We start with the defendant's challenge to the
-45-
admission of instant messages from his at-Tibyan collaborators —
messages that tended to show that al-Qa'ida solicited translations
from the website's members.
In the defendant's view, the evidence showing a link
between at-Tibyan and the charged conspiracy consisted of these
messages alone — and more was needed in order to invoke the hearsay
exception. See Bradshaw, 281 F.3d at 283 (requiring "corroboration
in the form of extrinsic evidence"). We need not weigh the
substance of this objection. Even if we assume for argument's sake
that the district court erred in admitting the at-Tibyan messages,
the error would be harmless. After all, a conviction will stand,
notwithstanding a non-constitutional error, "as long as it can be
said 'with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.'" Sasso, 695
F.3d at 29 (quoting Kotteakos v. United States, 328 U.S. 750, 765
(1946)).
Our conclusion about the harmlessness of any error is
easily explained. In this case, the relevance of the at-Tibyan
evidence is limited to the translation theory of guilt. But the
Griffin Court's teachings, when applied here, render that theory of
guilt academic. See supra Part II(B)(2) (explaining why the
defendant's conviction would endure even if the evidence were
insufficient to convict on the translation theory). And if we need
-46-
not consider whether sufficient evidence exists to undergird the
translation theory of guilt, it would be pointless to evaluate
whether some of that evidence should have been excluded.8 It
follows that any error in the admission of such evidence is
perforce harmless. See, e.g., United States v. Mitchell, 85 F.3d
800, 812 n.11 (1st Cir. 1996).
4. Al-Qa'ida Statements. The defendant's last challenge
under Rule 801(d)(2)(E) implicates the district court's failure to
exclude statements of high-level al-Qa'ida leaders. In support,
the defendant asserts that any connection between those infamous
figures and himself was too attenuated to warrant admission of the
statements.
This might be a different case had the challenged
statements been admitted for their truth. The government suggested
below that these statements qualified for the Rule 801(d)(2)(E)
exception because al-Qa'ida leaders "called for individuals to come
join al Qa'ida" and the defendant "tried to respond to that call,"
but the perimeter staked out by the government's rationale seems
vast. Arguably, any pro-jihadi Muslim publicly announcing his
opinions would come within its borders.
Here, however, we can leave the obvious concerns raised
by this scenario for another day. It is virtually a tautology to
8
Of course, it is possible that this evidence, even if
harmless as to guilt, might have been so incendiary as to offend
Federal Rule of Evidence 403. We consider this possibility infra.
-47-
say that in order to require a hearsay exception, a piece of
evidence must otherwise satisfy the definition of hearsay. See
United States v. Salameh, 152 F.3d 88, 112 (2d Cir. 1998). To
qualify as hearsay, a statement must be offered for its truth. See
Fed. R. Evid. 801(c)(2). The defendant directs us to no statements
of al-Qa'ida leaders that were admitted to prove the truth of the
matter asserted.
This hardly seems to be an oversight. It would, for
instance, defy logic to think that the government offered Abu Musab
al-Zarqawi's invective that "the American administration" has
"become an utter liar" to prove itself a perpetual prevaricator.
By the same token, it is plain that the government did not offer
Osama bin Laden's hypothesis that "[t]he wounds of the Muslims are
deep, very deep, in every place" to prove the depth and ubiquity of
Muslim wounds. Because these coconspirator statements simply do
not fit within the taxonomy of Rule 801(d)(2)(E), the district
court did not clearly err in allowing them into evidence over such
an objection.
5. Recapitulation. The short of it is that the
defendant's objections to the admission of coconspirator statements
are unavailing. Collectively, those objections take too crabbed a
view of the relevant conspiracy, joust with harmlessly admitted
evidence, and tilt with windmills by addressing statements that do
-48-
not meet the definition of hearsay. When all is said and done, the
objections afford no basis for tampering with the jury's verdict.
B. Probative Value/Prejudicial Effect.
The next cluster of contested evidentiary rulings relates
to the district court's admission of dozens of terrorism-related
pictures, videos, and printed materials. This evidence, the
defendant insists, vastly exceeded what was necessary to prove the
government's case, inflamed the jury, and contaminated the verdict.
Federal Rule of Evidence 403 governs this challenge.
That rule permits a court to "exclude relevant evidence if its
probative value is substantially outweighed by a danger of" certain
pitfalls, including "unfair prejudice" or "needlessly presenting
cumulative evidence." Fed. R. Evid. 403. Within this rubric, the
term "unfair prejudice" denotes "an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one." Old Chief v. United States, 519 U.S. 172, 180
(1997) (internal quotation marks omitted).
The role of an appellate court in conducting the triage
that Rule 403 contemplates is narrowly circumscribed. "With
respect to evidentiary questions in general and Rule 403 in
particular, a district court virtually always is in the better
position to assess the admissibility of the evidence in the context
of the particular case before it." Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 387 (2008). As a natural corollary of
-49-
the district court's superior coign of vantage, that court's
striking of the Rule 403 balance between probative value and
prejudicial effect should not be disturbed unless an abuse of
discretion looms. See id. at 384. In undertaking such review, we
afford the district court "especially wide latitude." United
States v. Candelaria-Silva, 162 F.3d 698, 705 (1st Cir. 1998)
(internal quotation marks omitted). "Only rarely — and in
extraordinarily compelling circumstances — will we, from the vista
of a cold appellate record, reverse a district court's on-the-spot
judgment concerning the relative weighing of probative value and
unfair effect." Pires, 642 F.3d at 12 (quoting Freeman v. Package
Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988)).
With this deferential standard in mind, we turn to the
defendant's contention that terrorist media admitted at trial
incited the jury to irrational decisionmaking. We begin with a
frank acknowledgment that the collection of terrorist-related media
introduced into evidence was extensive. According to the
defendant, the "most disturbing" items referenced beheadings. For
example, one witness testified about portions of a video in which
Abu Musab al-Zarqawi extolled the decapitation of American
businessman Nicholas Berg while images of deceased American
soldiers were displayed on screen.9 Other testimony indicated that
9
While this evidence was terrifying, we think that the
district court's handling of it was emblematic of the court's
measured approach: the court allowed descriptive testimony but did
-50-
the defendant circulated a video depicting the beheading of Wall
Street Journal reporter Daniel Pearl.
Of course, the defendant's Rule 403 challenge goes well
beyond evidence of beheadings. He also assails the government's
introduction of more than thirty propaganda video clips, such as
al-Qa'ida's State of the Ummah; statements of Osama bin Laden and
Ayman al-Zawahiri in book and interview form; and dozens of images
portraying gripping scenes, such as the World Trade Center engulfed
in flames and al-Qa'ida leaders exhorting their followers.
The defendant remonstrates that any appropriate use of
these materials was overwhelmed by the prejudice inherent in them.
This remonstrance lies at the heart of the defendant's claim of
error. We test its soundness.
In this instance, the first half of the probative
value/prejudicial effect dichotomy is easily satisfied. Evidence
is relevant if it tends to make a material fact more or less
likely. See Fed. R. Evid. 401. The persuasiveness of the evidence
with respect to such a fact is an appropriate proxy for its
probative force. See United States v. Lachman, 48 F.3d 586, 591
(1st Cir. 1995).
The government proffered all of the disputed evidence on
the theory that the defendant either saw or read it and shaped his
not permit the video itself to be shown to the jury.
-51-
worldview accordingly. The evidence was relevant, the government
says, for two reasons.
The first reason (stressed by the government at oral
argument) is breathtaking in its scope: the government labeled the
defendant's crimes "ideological" and argued that, as a result, his
speech and beliefs, as well as the writings and videos that he
consumed were integral to the charged crimes. We do not accept
this sweeping proposition.
Courts must be wary of the particular perils associated
with prosecutions centered on ideology (which include, to use the
government's phrase, prosecutions centered on "propaganda"). An
objective observer might well regard the sprawling taxonomy
suggested by the government as a thinly disguised effort to saddle
defendants indiscriminately with the criminal and cultural baggage
of internationally notorious terrorists. The government's embrace
of such a theory smacks of overreaching, and we give that theory no
weight.
We have much less difficulty with the government's second
(more traditional) reason for urging a finding of relevance. The
government argues convincingly that the defendant's motive and
intent are material facts and that the disputed media have
probative value with respect to those facts. Specifically, the
government posits that the defendant, inspired by terrorist rants,
developed an anti-American animus, which culminated in his decision
-52-
to travel to Yemen to join in al-Qa'ida's struggle. The pictures,
videos, and literature that he absorbed and endorsed during that
evolutionary process, as well as the materials that he used to
recruit others to follow a similar path, doubtless bear on his
motive and intent. See, e.g., United States v. El-Mezain, 664 F.3d
467, 509-10 (5th Cir. 2011) (holding that material seized from the
defendant, "including images of violence and videos glorifying
Hamas and depicting Hamas leaders, was probative of the motive or
intent of the [defendant] to support Hamas"), cert. denied, 133 S.
Ct. 525 (2012); United States v. Jayyousi, 657 F.3d 1085, 1108
(11th Cir. 2011) (holding that televised interview with Osama bin
Laden was properly admitted as "state of mind evidence"); United
States v. Abu-Jihaad, 630 F.3d 102, 133-34 (2d Cir. 2010)
(affirming conclusion that "pro-jihadist contents of the videos
were relevant to understanding [the defendant's] motive and
intent"). While no picture, video, book, or tract spoke directly
to the defendant's purpose in going to Yemen, evidence need not
achieve the conspicuousness of a smoking gun in order to have
probative value.
Probative value, however, is only one pan of the scale.
For Rule 403 purposes, that value must be juxtaposed with
prejudicial effect (or, more precisely, with unfairly prejudicial
effect). The juxtaposition in this case, the defendant suggests,
-53-
indicates that the probative value of the evidence is substantially
overbalanced.
To prove his point, the defendant argues long and loud
that the situation here reprises the situation in United States v.
Al-Moayad, 545 F.3d 139 (2d Cir. 2008). The defendants there were
convicted of, among other things, conspiring and attempting to
provide material support to Hamas. Id. at 145. On appeal, they
complained about the admission of the testimony of Gideon Black,
who gave a graphic, first-hand account concerning a suicide bombing
aboard a bus in Tel Aviv. Id. at 152-53. They likewise complained
about the testimony of Yahya Goba, who told the jury about an al-
Qa'ida training camp that he attended, recounting Osama bin Laden's
visit there and commenting on a video documenting that visit. Id.
at 156-57.
The Second Circuit concluded that this testimony had been
improvidently admitted. In reaching this conclusion, the court
found the probative value of Black's testimony infinitesimal:
although the government offered the testimony to establish the
defendants' knowledge of Hamas's violent activities, the "bombing
was almost entirely unrelated to the elements of the charges," id.
at 161, and in all events the defendants had offered to stipulate
unqualifiedly to their knowledge that Hamas engaged in violent
activities, id. at 160-61. Thus, Black's "extended account of the
-54-
tragedy could not reasonably be considered part of" the
government's narrative. Id. at 161.
The court offered much the same critique with respect to
Goba. A "mujahidin form" required for entry into al-Qa'ida camps
mentioned one defendant, and the ostensible purpose of Goba's
testimony was to explain that form's significance. Id. at 156.
Despite the tenuous nature of this link to the case, the district
court "never appear[ed] to have assessed the probative value" of
the testimony. Id. at 163. Without some "assurance that the court
conscientiously balanced the probative value of the testimony
against its prejudicial effect," the "highly inflammatory and
irrelevant" testimony and accompanying bin Laden video should have
been excluded. Id.
It is hen's-teeth rare that two cases involving different
parties, different facts, and different scenarios will be of much
assistance through a comparative analysis of Rule 403
determinations. These determinations are case-specific and it is
readily apparent that Al-Moayad and the case at hand are not fair
congeners. Although the defendant's counsel in this case stated at
one point that he could "virtually stipulate to the defendant's
state of mind," no actual stipulation was ever proffered or made.10
10
We do not mean to imply that a stipulation would necessarily
have dictated the result of a Rule 403 analysis. To the contrary,
"the prosecutor's choice [not to accept a defendant's stipulation]
will generally survive a Rule 403 analysis when a defendant seeks
to force the substitution of an admission for evidence creating a
-55-
Perhaps more important, the evidence of which the
defendant complains was (unlike the evidence challenged in Al-
Moayad) central to the government's narrative: the government's
case depended on proving that the defendant's actions emanated from
views that, over time, had aligned with al-Qa'ida's. The media
that he consumed en route to forming those views is a salient part
of the story.
Moreover, that part of the story was fiercely contested.
Although the defendant indicated a willingness to admit that he
admired al-Qa'ida's ideals, he steadfastly disassociated himself
from any anti-American actions involving violence. As he put it,
his beliefs "would prevent [him] from attacking fellow Americans
within the United States or outside of it." In the same vein, his
counsel cast Yemen as nothing more than a "free trip" for the
defendant to "do what he wanted to do" — seek out a scholarly
community. The challenged evidence helped to tell a different tale
— and it tended to make the defendant's account less believable.
We summarize succinctly. On the pivotal issue of his
state of mind with respect to his Yemen trip, the defendant refused
coherent narrative of his thoughts and actions in perpetrating the
offense for which he is being tried." United States v. Balsam, 203
F.3d 72, 84 (1st Cir. 2000) (alteration in original) (quoting Old
Chief, 519 U.S. at 192); see United States v. Hammoud, 381 F.3d
316, 342 n.12 (4th Cir. 2004) (en banc) (explaining that where
proffered stipulation "would not relieve the Government of the
burden of demonstrating that [the defendant] knew that Hizballah
engaged in terrorist activity," it did not have to be accepted),
vacated on other grounds, 125 S. Ct. 1051 (2005).
-56-
to yield an inch. His objections below largely overlooked (or, at
least, implausibly discounted) the potential value of the
challenged evidence in undercutting his insistence that his motive
in going to Yemen was benign. Al-Moayad is, therefore,
distinguishable. See El-Mezain, 664 F.3d at 511 (distinguishing
Al-Moayad "because evidence of Hamas violence found on the premises
of [the defendant] tended to rebut the defendants' denial that they
supported Hamas").
Even apart from Al-Moayad, the defendant mounts an all-
out attack on the Rule 403 balancing performed by the court below.
Despite the deferential standard of review, we do not suggest that
such decisions are by any means insulated from effective appellate
oversight. Indeed, we have demonstrated our willingness to reverse
such rulings when the interests of justice so require. We did so,
for instance, in a case in which "there were no findings on
prejudice and probativeness, and a 'hair-trigger' decision was
made." Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 479
(1st Cir. 2000).
Here, however, the record is replete with manifestations
of the district court's conscientious Rule 403 evaluations. There
would be little point in cataloguing each and every illustration of
the court's careful stewardship. One concrete example should
suffice.
-57-
At oral argument, the defendant emphasized the
prejudicial impact of the "Texas BBQ" video — so called because the
defendant used that phrase to refer to the remains of American
soldiers shown in the video. When the defendant objected to this
evidence, the district court entertained arguments on both the
importance of the evidence to the government and its potential to
inflame the jury. After fully considering these arguments, the
court found that the video would be "very probative" in rebutting
the defendant's mantra that his moderate beliefs prevented him from
attacking Americans. Relatedly, the court determined that
describing the more gruesome elements through witness testimony,
rather than publishing the video to the jury, would go "a great
distance to minimizing unfair prejudice" and would render the video
"significantly less inflammatory." Such painstaking consideration
of a Rule 403 objection hardly can be deemed arbitrary, and the
defendant directs us to no other portion of the record indicating
that the district court engaged in anything approaching the
thoughtless discarding of Rule 403 issues.
The defendant's most powerful argument under Rule 403 is
fueled by the sheer mass of the circumstantial evidence introduced
by the government to show motive and intent. Dozens of terrorist
videos, writings, and images are in play here. This raises the
specter, skillfully evoked by the defendant and some of the amici,
that the cumulative effect of the evidence caused unfair prejudice.
-58-
The district court addressed this cumulativeness concern
on several occasions. We offer two representative vignettes.
On the 10th day of trial, the court noted its concern
"that at some point the evidence becomes so cumulative that unfair
prejudice outweighs probative value." The court found, however,
that "we're not at that point." On the 25th day of trial, the
court overruled an objection that the government's evidence was so
cumulative as to be unfairly prejudicial. The court observed that
the very volume of terrorism evidence viewed by the defendant
"might have some probative value as to [his] obsessiveness" with
the subject.
There is a line past which the government's introduction
of relevant evidence for the legitimate advancement of its case
goes too far. When that line is crossed, fair play morphs into
piling on. But that line is hard to draw, and there is no
mathematically precise way in which to plot it.
When we pressed the parties at oral argument as to when
and where the district court should have drawn the line, neither
side gave us any serviceable guide for determining which particular
video, image, or book was the straw that broke the camel's back.
Rather, the parties resorted to generalities.
The parties' inability to plot a well-defined line is
understandable. The point at which relevant and admissible
evidence lapses into relevant but cumulative (and therefore
-59-
inadmissible) evidence is murky. Moreover, it is different in
every case. A court simply cannot say with any degree of assurance
that thirteen images of Osama bin Laden may safely be admitted, but
that the fourteenth image ought to be excluded.
In the last analysis, the lack of a scientifically
accurate measuring device reinforces both the importance of the
trial judge's role and the wisdom of affording substantial
deference to his balancing decision. In this case, we think it is
plain that the question of whether the quantum of evidence
introduced by the government crossed the indistinct boundary that
separates the permissible from the impermissible is fairly
debatable. The district court gave this fairly debatable question
careful attention, and we are reluctant to second-guess its
judgment. After all, "the very closeness of the question favors
the district court's reconciliation of the competing centrifugal
and centripetal forces" that attend the striking of the delicate
balance that Rule 403 demands. Pires, 642 F.3d at 12. We hold,
therefore, that the district court's rejection of the defendant's
cumulativeness objections, though not inevitable, was not an abuse
of discretion.
Let us be perfectly clear. We are mindful that
terrorism-related evidence is often emotionally charged. Courts,
with good reason, have on occasion termed such evidence "alarming,"
United States v. Benkahla, 530 F.3d 300, 310 (4th Cir. 2008),
-60-
"disturbing," Salameh, 152 F.3d at 122, and even "blood curdling,"
United States v. Mubayyid, 658 F.3d 35, 56 (1st Cir. 2011). But
much of this emotional overlay is directly related to the nature of
the crimes that the defendant has set out to commit. It should not
surprise a defendant that proof of his participation in
conspiracies to provide material support to terrorist organizations
and to kill Americans here and abroad will engender the
presentation of evidence offensive to the sensibilities of
civilized people. See El-Mezain, 664 F.3d at 511. Terrorism
trials are not to be confused with high tea at Buckingham Palace.
The Fifth Circuit wisely observed, in analogous
circumstances, that in a terrorism case, "it is inescapable
. . . that there would be some evidence about violence and
terrorist activity." Id. So it is here.
This brings us to the ultimate question that underlies a
claim of error based on Rule 403: whether the district court abused
its discretion in holding that the probative worth of the
challenged evidence was not substantially outweighed by its
prejudicial impact. We think that this question must be answered
favorably to the district court.
The government's evidence plainly packed an emotional
punch, but Rule 403 does not ensure that trials — even criminal
trials — will be antiseptic affairs. Litigants invariably
introduce particular evidence as part of an effort to sway jurors
-61-
to their point of view. In that sense, "all evidence is meant to
be prejudicial." United States v. Rodriguez-Estrada, 877 F.2d 153,
156 (1st Cir. 1989). Rule 403 was never designed to alter that
reality. "[I]t is only unfair prejudice which must be avoided."
Id. (emphasis in original).
We cannot say that the district court's Rule 403
determinations offended this principle. For the most part, the
evidence of which the defendant complains served to discredit his
claim that his purpose in Yemen was innocuous. This is significant
because "[e]vidence which tends to rebut a defendant's claim of
innocent action is unlikely to be unduly prejudicial." El Mezain,
664 F.3d at 509. The court below carefully superintended the ebb
and flow of the evidence, displayed a high degree of sensitivity in
regard to Rule 403 concerns, took pains to minimize the impact of
potentially inflammatory bits of evidence, and gave the jury
suitably prophylactic instructions. There is no reason to believe,
on this record, that the verdict was the result of passion or
prejudice.
C. Thumbnails.
The defendant has an additional shot in his sling. He
objects here, as he did below, to the admission of "thumbnail"
images retrieved from his computer. In support, he argues that
such images can exist on a person's computer without the person's
involvement or knowledge.
-62-
The defendant couches this argument in the idiom of Rule
403 — but this may not be a Rule 403 objection at all. Instead, it
may properly be viewed either as an objection to the relevance of
the evidence, see Fed. R. Evid. 401, or as an objection to the lack
of a proper foundation, see Fed. R. Evid. 901.
In the end, it does not matter how we characterize this
objection. Regardless, the objection goes to the weight of the
evidence, not to its admissibility. One logical inference from the
discovery of the thumbnails is that the defendant viewed and
approved of such images. See El-Mezain, 664 F.3d at 510. The
government was free to argue in favor of this inference, and the
defendant was free to argue otherwise. Jurors are not so naive
that they must be shielded from choosing among reasonable but
competing inferences extractable from proven facts.
To say more would be pointless. The objection to the
introduction of the thumbnails was appropriately overruled.
D. Failure to Disclose.
The next disputed evidentiary ruling is of a different
genre. In a criminal case, the Fifth Amendment imposes certain
disclosure obligations on the government. These disclosure
obligations were most famously articulated in the Supreme Court's
watershed decision in Brady v. Maryland, 373 U.S. 83 (1963).
The Brady Court held that "the suppression by the
prosecution of evidence favorable to an accused upon request
-63-
violates due process." Id. at 87. This "no-fault disclosure
obligation," Haley v. City of Boston, 657 F.3d 39, 48 (1st Cir.
2011), applies "irrespective of the good faith or bad faith of the
prosecution," Brady, 373 U.S. at 87.
It is important to remember that in Brady, the Court
"wielded a scalpel, not a meat-axe." Haley, 657 F.3d at 48. "The
Justices made it transparently clear that the newly announced no-
fault disclosure obligation does not cover all evidence but,
rather, only 'evidence [that] is material either to guilt or to
punishment.'" Id. (alteration in original) (quoting Brady, 373
U.S. at 87). This taxonomy includes any evidence that fairly tends
to negate guilt, mitigate punishment, or undermine the credibility
of government witnesses, including evidence known only to police
investigators and not to the prosecutor. See Strickler v. Greene,
527 U.S. 263, 281-82 (1999). Reversal is warranted if the
government improperly withholds Brady material and prejudice
results. See id.
The defendant in this case essays a Brady claim. He
alleges that defense counsel received a tip that his client had
refused a solicitation, relayed through either an undercover agent
or a cooperating informant, to engage in criminal acts. He moved
to compel production of this evidence. The government responded
with a representation that it possessed no such evidence.
-64-
The district court held a hearing on this motion.
Following the hearing, the court reviewed in camera an ex parte
proffer by the government. It then denied the defendant's motion.
It is to this ruling that the defendant takes exception.
The defendant's position can be stated without much
ceremony. He suggests that evidence of his refusal to commit a
crime would have reinforced a central theme of the defense: that
although he may have sympathized with al-Qa'ida and spoken
glowingly of the virtues of jihad, he nonetheless avoided crossing
the line into criminal activity. The defendant further suggests
that such evidence would have impeached Abuzahra's testimony that
the defendant was ready and willing to commit terrorist acts.
We have inspected the government's in camera submission.
Due to the confidential nature of this submission, we think it
prudent to refrain from any detailed description. For present
purposes, it suffices to say that both the content and the timing
of the contact disclosed in the government's in camera submission
militate against a finding that the conversation in question
constituted Brady material. First, the transcript of that
conversation does not show any solicitation of the defendant's
participation in further terrorist acts. Second, given the timing
of the contact, even a rebuffed solicitation would have had no real
probative value.
-65-
We review a district court's decision that particular
evidence does not constitute Brady material for abuse of
discretion. See United States v. DeCologero, 530 F.3d 36, 65 (1st
Cir. 2008).
Because the material withheld by the government was
tangential to the issues in the case, we find no abuse of
discretion in the district court's judgment that the material was
not "discoverable."
E. Expert Witnesses.
The last group of contested evidentiary rulings deals
with expert witnesses. The defendant sought to present no fewer
than eight experts at trial. The district court allowed six of
these experts to testify, but excluded the remaining two. The
defendant complains about the dual exclusion. We review orders
excluding expert witnesses for abuse of discretion. See Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141-42 (1999); United States v.
Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987).
The first excluded expert was Dr. Steven Durlauf. The
defendant sought to have him present mathematical formulae for the
purpose of undermining the opinion of one of the government's
experts, Evan Kohlmann, with respect to the latter's method of
defining who was an al-Qa'ida adherent. The district court
rejected this proffered testimony on the primary ground that
Kohlmann never claimed that his conclusions comported with, or were
-66-
based upon, scientific standards.11 We discern no abuse of
discretion.
Under Federal Rule of Evidence 702, a district court
pondering whether to admit expert testimony must determine, among
other things, whether the proffered testimony is tied closely
enough to the facts to "assist the trier of fact." Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 591-93 (1993); see United
States v. Shay, 57 F.3d 126, 132-33 (1st Cir. 1995). To forge this
link, there must be "a valid connection . . . between the expert's
testimony and a disputed issue." Shay, 57 F.3d at 133 n.5.
Viewed against this backdrop, the district court had a
plausible basis for rejecting Dr. Durlauf's testimony. There was
simply no "fit" between what Kohlmann described as the basis for
his opinion and the criticism of that opinion that Dr. Durlauf
proposed to make. Admitting Dr. Durlauf's testimony would,
therefore, have been akin to inserting a square peg into a round
hole.
The second excluded expert witness was Dr. Brian Glyn
Williams. The defendant tendered this witness in a professed
effort to rebut Kohlmann's testimony about both the efficacy of
jihadi videos in generating recruits for al-Qa'ida and the purpose
11
As an alternative ground for exclusion, the district court
pointed out that the defendant had not given the government proper
notice of the substance of Dr. Durlauf's proposed testimony. See
Fed. R. Crim. P. 16(b)(1)(C). There is no need for us to address
this alternative ground.
-67-
behind the production of those videos. The district court
determined that this testimony would not be helpful to the jury.
This ruling, too, was within the compass of the district court's
discretion.
It is common ground that a trial court may bar expert
testimony if that testimony will not assist the jury to sort out
contested issues. See Fed. R. Evid. 702; see also Daubert, 509
U.S. at 592-93; United States v. Tetioukhine, 725 F.3d 1, 6-8 (1st
Cir. 2013). In this case, whether the jihadi videos discussed by
Kohlmann were effective as a recruiting tool was a non-issue.
Rather, the relevant issue was whether the defendant intended to
provide material support by helping al-Qa'ida to produce the
videos. See, e.g., Al Kassar, 660 F.3d at 129; Jayyousi, 657 F.3d
at 1105. Even if the videos were not an effective recruiting tool,
this lack of efficacy would not dissipate the defendant's criminal
intent. Seen in this light, Dr. Williams's proffered testimony had
no bearing on the relevant issue and perforce would not have helped
the jury to resolve it.
Much the same can be said about Dr. Williams's proffered
testimony about al-Qa'ida's purpose in making the videos. Within
the margins of this prosecution, it was immaterial whether al-
Qa'ida's purpose was for recruiting (as Kohlmann indicated) or to
boost morale (as Dr. Williams would have testified). Either way,
the videos would constitute material support. Paving the way for
-68-
the jury to choose between the witnesses' competing assessments of
al-Qa'ida's aims would, therefore, have been an empty exercise.
See, e.g., United States v. Maxwell, 254 F.3d 21, 25-26 (1st Cir.
2001).
We add a coda. The proffered testimony of Drs. Durlauf
and Williams was cumulative. One of the expert witnesses who was
allowed to testify on the defendant's behalf, Dr. Marc Sageman,
made essentially the same points that the defendant sought to
pursue through the two excluded experts. The cumulative nature of
the excluded testimony, in itself, adequately underpinned the
district court's exclusionary rulings. See Bobby v. Van Hook, 558
U.S. 4, 12 (2009) (per curiam); LaPlace-Bayard v. Batlle, 295 F.3d
157, 163-64 (1st Cir. 2002).
V. THE SENTENCE
We have one more stop before we reach our final
destination. The probation office prepared the presentence report
based on the 2011 version of the federal sentencing guidelines, and
the district court embraced that premise. The defendant asserts
that the court should have used the November 2003 version of the
guidelines because the relevant criminal activity was the Yemen
trip (which occurred early in 2004).
This bevue is material, the defendant says, because of a
key difference between the two editions of the guidelines. That
difference came about when the Sentencing Commission amended the
-69-
guidelines in November of 2004. See USSG §2A1.5(a) (Nov. 2004).
The amendment, which remained in place through ensuing editions of
the guidelines (up to and including the November 2011 edition), had
the effect of boosting the defendant's base offense level (BOL) by
five levels for one of the linchpin counts of conviction.12 Compare
id. §2A1.5(a) (Nov. 2003), with id. §2A1.5(a) (Nov. 2011).
As a general rule, a sentencing court should use the
version of the guidelines in effect at the time of the disposition
hearing. See United States v. Harotunian, 920 F.2d 1040, 1041-42
(1st Cir. 1990). But this rule, like every other general rule,
admits of exceptions. One such exception obtains when the Ex Post
Facto Clause, U.S. Const. art. I, § 9, cl. 3, is implicated. The
application of a particular version of the guidelines raises ex
post facto concerns if that version increases the level of
punishment for a crime above that in place when the crime was
committed. See Peugh v. United States, 133 S. Ct. 2072, 2078
(2013).
The district court sentenced the defendant in 2012.
Thus, in the absence of ex post facto implications, the then-
current edition of the sentencing guidelines (published in November
12
The seven counts of conviction were grouped for sentencing
purposes. See USSG §3D1.2. The amendment in question affected
count 2, which was one of the counts that had the highest BOL and,
thus, figured prominently in the overall sentencing calculus.
-70-
2011) was the appropriate reference point. See Harotunian, 920
F.2d at 1041-42.
The defendant counters that his culpable activity was
complete before the guidelines were amended in 2004. To avoid ex
post facto concerns, therefore, the court should have employed the
earlier, less draconian, version of the guidelines, promulgated in
November 2003. To the extent that this assignment of error poses
a question of law, it engenders de novo review. See United States
v. Goergen, 683 F.3d 1, 3 (1st Cir. 2012); United States v.
LaCroix, 28 F.3d 223, 226 (1st Cir. 1994). To the extent, however,
that it hinges on the sentencing court's factfinding, it can be
disturbed only if that factfinding is shown to be clearly
erroneous. See United States v. David, 940 F.2d 722, 739 (1st Cir.
1991).
We acknowledge that the defendant's premise is largely
correct: if all of the culpable criminal activity were completed
before the relevant guidelines were made more stringent, then the
district court would in all probability have had to apply the
earlier version of the guidelines.13 See, e.g., United States v.
Bennett, 37 F.3d 687, 698-700 (1st Cir. 1994); Harotunian, 920 F.2d
13
We hedge this statement because, as an alternative ground
in support of the sentencing court's use of the 2011 version of the
guidelines, the government asks us to apply the so-called "one
book" rule. See USSG §1B1.11(b)(2); Goergen, 683 F.3d at 3.
Inasmuch as we conclude that the charged conspiracies extended
beyond the effective date of the 2004 amendment, we do not reach
this issue.
-71-
at 1042. But the conclusion that the defendant draws from this
premise is wrong. The sentencing court determined as a matter of
fact, at least impliedly, that the charged conspiracies continued
well into 2006. The court similarly determined that the
defendant's culpable conduct continued for that same period of
time. These determinations are not clearly erroneous; indeed, they
are consistent with the heavy weight of the evidence adduced at
trial. See supra Part II(A).
Seen in this light, the defendant's assignment of
sentencing error falters. Because his culpable criminal activity
continued past the point when the November 2004 amendment to the
guidelines went into effect, the district court did not err in
using the current version of the guidelines. "[T]he guidelines
apply to a defendant whose offense begins before the guidelines'
effective date and continues after the effective date." David, 940
F.2d at 739. When a defendant participates in a conspiracy and the
duration of that conspiracy extends past the effective date of a
change in the guidelines, the new version of the guidelines
ordinarily applies to the whole of the defendant's culpable
conduct. See United States v. Aviles, 518 F.3d 1228, 1230-31 (11th
Cir. 2008); United States v. Zimmer, 299 F.3d 710, 717-18 (8th Cir.
2002); United States v. Regan, 989 F.2d 44, 48 (1st Cir. 1993). In
such a scenario, no ex post facto concerns are present.
-72-
That ends this aspect of the matter. We hold that the
district court appropriately referred to the version of the
guidelines then in effect — the 2011 version — when sentencing the
defendant.
VI. CONCLUSION
Cases like this one present a formidable challenge to the
parties and to the trial court: the charged crimes are heinous, the
evidentiary record is vast, the legal issues are sophisticated, and
the nature of the charges ensures that any trial will be electric.
In this instance, all concerned rose to meet this formidable
challenge. The lawyers on both sides performed admirably, and the
able district judge presided over the case with care, skill, and
circumspection. After a painstaking appraisal of the record, the
briefs, and the relevant case law, we are confident — for the
reasons elucidated above — that the defendant was fairly tried,
justly convicted, and lawfully sentenced.
We do not pretend to understand why the defendant chose
to go down such a treacherous path. Nevertheless, the jury found
that he knowingly and intentionally made that choice, and that
finding is both supported by the clear weight of the evidence and
untainted by legal error. We need go no further.
Affirmed.
-73-
Appendix
18 U.S.C. § 371. Conspiracy to commit offense or to defraud United
States
If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object of the conspiracy,
each shall be fined under this title or imprisoned not more than
five years, or both.
If, however, the offense, the commission of which is the object of
the conspiracy, is a misdemeanor only, the punishment for such
conspiracy shall not exceed the maximum punishment provided for
such misdemeanor.
18 U.S.C. § 956. Conspiracy to kill, kidnap, maim, or injure
persons or damage property in a foreign country
(a) (1) Whoever, within the jurisdiction of the United
States, conspires with one or more other persons,
regardless of where such other person or persons are
located, to commit at any place outside the United States
an act that would constitute the offense of murder,
kidnapping, or maiming if committed in the special
maritime and territorial jurisdiction of the United
States shall, if any of the conspirators commits an act
within the jurisdiction of the United States to effect
-74-
any object of the conspiracy, be punished as provided in
subsection (a)(2).
* * *
(b) Whoever, within the jurisdiction of the United States,
conspires with one or more persons, regardless of where such other
person or persons are located, to damage or destroy specific
property situated within a foreign country and belonging to a
foreign government or to any political subdivision thereof with
which the United States is at peace, or any railroad, canal,
bridge, airport, airfield, or other public utility, public
conveyance, or public structure, or any religious, educational, or
cultural property so situated, shall, if any of the conspirators
commits an act within the jurisdiction of the United States to
effect any object of the conspiracy, be imprisoned not more than 25
years.
18 U.S.C. § 1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any
matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly
and willfully—
(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
-75-
(3) makes or uses any false writing or document knowing
the same to contain any materially false, fictitious, or
fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years
or, if the offense involves international or domestic terrorism (as
defined in section 2331), imprisoned not more than 8 years, or
both. If the matter relates to an offense under chapter 109A,
109B, 110, or 117, or section 1591, then the term of imprisonment
imposed under this section shall be not more than 8 years.
* * *
18 U.S.C. § 2332. Criminal penalties
(a) Homicide.—Whoever kills a national of the United States, while
such national is outside the United States, shall—
(1) if the killing is murder (as defined in section
1111(a)), be fined under this title, punished by death or
imprisonment for any term of years or for life, or both;
(2) if the killing is a voluntary manslaughter as defined
in section 1112(a) of this title, be fined under this
title or imprisoned not more than ten years, or both; and
(3) if the killing is an involuntary manslaughter as
defined in section 1112(a) of this title, be fined under
this title or imprisoned not more than three years, or
both.
-76-
(b) Attempt or conspiracy with respect to homicide.—Whoever outside
the United States attempts to kill, or engages in a conspiracy to
kill, a national of the United States shall—
(1) in the case of an attempt to commit a killing that is
a murder as defined in this chapter, be fined under this
title or imprisoned not more than 20 years, or both; and
(2) in the case of a conspiracy by two or more persons to
commit a killing that is a murder as defined in section
1111(a) of this title, if one or more of such persons do
any overt act to effect the object of the conspiracy, be
fined under this title or imprisoned for any term of
years or for life, or both so fined and so imprisoned.
* * *
(d) Limitation on prosecution.—No prosecution for any offense
described in this section shall be undertaken by the United States
except on written certification of the Attorney General or the
highest ranking subordinate of the Attorney General with
responsibility for criminal prosecutions that, in the judgment of
the certifying official, such offense was intended to coerce,
intimidate, or retaliate against a government or a civilian
population.
18 U.S.C. § 2339A. Providing material support to terrorists
(a) Offense.—Whoever provides material support or resources or
conceals or disguises the nature, location, source, or ownership of
-77-
material support or resources, knowing or intending that they are
to be used in preparation for, or in carrying out, a violation of
section 32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844(f) or
(i), 930(c), 956, 1091, 1114, 1116, 1203, 1361, 1362, 1363, 1366,
1751, 1992, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, 2332f,
2340A, or 2442 of this title, section 236 of the Atomic Energy Act
of 1954 (42 U.S.C. 2284), section 46502 or 60123(b) of title 49, or
any offense listed in section 2332b(g)(5)(B) (except for sections
2339A and 2339B) or in preparation for, or in carrying out, the
concealment of an escape from the commission of any such violation,
or attempts or conspires to do such an act, shall be fined under
this title, imprisoned not more than 15 years, or both, and, if the
death of any person results, shall be imprisoned for any term of
years or for life. A violation of this section may be prosecuted
in any Federal judicial district in which the underlying offense
was committed, or in any other Federal judicial district as
provided by law.
(b) Definitions.—As used in this section —
(1) the term "material support or resources" means any
property, tangible or intangible, or service, including
currency or monetary instruments or financial securities,
financial services, lodging, training, expert advice or
assistance, safehouses, false documentation or
identification, communications equipment, facilities,
-78-
weapons, lethal substances, explosives, personnel (1 or
more individuals who may be or include oneself), and
transportation, except medicine or religious materials;
(2) the term "training" means instruction or teaching
designed to impart a specific skill, as opposed to
general knowledge; and
(3) the term "expert advice or assistance" means advice
or assistance derived from scientific, technical or other
specialized knowledge.
18 U.S.C. § 2339B. Providing material support or resources to
designated foreign terrorist organizations
(a) Prohibited activities.—
(1) Unlawful conduct.—Whoever knowingly provides material
support or resources to a foreign terrorist organization,
or attempts or conspires to do so, shall be fined under
this title or imprisoned not more than 15 years, or both,
and, if the death of any person results, shall be
imprisoned for any term of years or for life. To violate
this paragraph, a person must have knowledge that the
organization is a designated terrorist organization (as
defined in subsection (g)(6)), that the organization has
engaged or engages in terrorist activity (as defined in
section 212(a)(3)(B) of the Immigration and Nationality
Act), or that the organization has engaged or engages in
-79-
terrorism (as defined in section 140(d) (2) of the
Foreign Relations Authorization Act, Fiscal Years 1988
and 1989
* * *
* * *
(g) Definitions.—As used in this section —
* * *
(4) the term “material support or resources” has the same
meaning given that term in section 2339A (including the
definitions of “training” and “expert advice or
assistance” in that section);
* * *
(6) the term "terrorist organization" means an
organization designated as a terrorist organization under
section 219 of the Immigration and Nationality Act.
(h) Provision of personnel.—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
-80-
considered to be working under the foreign terrorist organization's
direction and control.
(i) Rule of construction.—Nothing in this section shall be
construed or applied so as to abridge the exercise of rights
guaranteed under the First Amendment to the Constitution of the
United States.
(j) Exception.—No person may be prosecuted under this section in
connection with the term "personnel", "training", or "expert advice
or assistance" if the provision of that material support or
resources to a foreign terrorist organization was approved by the
Secretary of State with the concurrence of the Attorney General.
The Secretary of State may not approve the provision of any
material support that may be used to carry out terrorist activity
(as defined in section 212(a)(3)(B)(iii) of the Immigration and
Nationality Act).
-81-