United States v. Mohammad Hassan

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4061
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOHAMMAD OMAR ALY HASSAN,
Defendant – Appellant.
No. 12-4063
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ZIYAD YAGHI,
Defendant – Appellant.
No. 12-4067
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HYSEN SHERIFI,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:09-cr-00216-FL-7; 5:09-cr-00216-FL-8; 5:09-
cr-00216-FL-2)
Argued: September 19, 2013 Decided: February 4, 2014
Before WILKINSON and KING, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Wilkinson and Judge Wilson joined.
ARGUED: Robert Joseph Boyle, ROBERT J. BOYLE, ATTORNEY AT LAW,
New York, New York; Robert Daniel Boyce, NEXSEN PRUET, Raleigh,
North Carolina; John Clark Fischer, RANDOLPH & FISCHER, Winston-
Salem, North Carolina, for Appellants. Jason Michael Kellhofer,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Kirsten E. Small, NEXSEN PRUET, PLLC,
Raleigh, North Carolina, for Appellant Mohammad Omar Aly Hassan.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
2
KING, Circuit Judge:
The appellants in these consolidated proceedings, Mohammad
Omar Aly Hassan, Ziyad Yaghi, and Hysen Sherifi, were tried
jointly in the Eastern District of North Carolina and convicted
of several offenses arising from terrorism activities. On
appeal, the trio presents myriad challenges to their convictions
and sentences. As explained below, we reject the appellants’
various contentions of error and affirm.
I.
A.
On July 22, 2009, the federal grand jury in eastern North
Carolina returned an indictment against the appellants and five
others, alleging multiple terrorism conspiracies and related
offenses. Bench warrants were issued for all eight defendants
on July 23, 2009, and, four days later, seven were arrested. In
September 2009, a superseding indictment was returned, followed
on November 24, 2010, by the operative second superseding
indictment (the “Indictment”). The Indictment alleged the
following offenses that are particularly relevant to these
appeals:
• Count One charged the eight defendants with
conspiring to violate 18 U.S.C. § 2339A, that is,
to provide material support and resources for
violations of 18 U.S.C. § 956 (the “Count One
conspiracy”);
3
• Count Two charged the eight defendants with the
conspiracy offense of violating 18 U.S.C.
§ 956(a), i.e., to commit outside the United
States acts that would constitute murder,
kidnapping, and maiming if committed within the
United States (the “Count Two conspiracy”);
• Counts Four and Eight charged conspiracy
ringleader Daniel Boyd (“Boyd”), his son
Zakariya, and appellant Hysen Sherifi with
possessing firearms in furtherance of a crime of
violence — particularly, the Count Two conspiracy
— in contravention of 18 U.S.C. § 924(c); and
• Count Eleven charged Boyd and Sherifi with
conspiring to kill members of the uniformed
services of the United States in attacks on
military personnel and installations in Virginia
and elsewhere, in violation of 18 U.S.C. § 1117
(the “Count Eleven conspiracy”).
None of the other charges in the Indictment were lodged
against any of the appellants. Count Three charged Boyd with
receiving a firearm and ammunition in interstate commerce, with
knowledge that the offenses set forth in Counts One and Two
would be committed therewith, in contravention of 18 U.S.C.
§ 924(b). Counts Five, Nine, and Ten charged Boyd (and in Count
Five, Boyd’s son Dylan) with knowingly selling firearms and
ammunition to a felon, in violation of 18 U.S.C. §§ 922(d)(1)
and 924. Counts Six and Seven charged Boyd with making false
statements to the government by misrepresenting his plans to
meet others — including appellants Mohammad Omar Aly Hassan and
Ziyad Yaghi — when Boyd travelled to the Middle East in 2007, in
4
contravention of 18 U.S.C. § 1001(a)(2). In Counts Twelve and
Thirteen, defendant Anes Subasic was charged with knowingly
making false statements to procure his naturalization as a
citizen, in violation of 18 U.S.C. § 1425(a).
On February 9, 2011, Boyd pleaded guilty to the Count One
and Count Two conspiracies, and, pursuant to his plea agreement
with the government, Counts Three through Eleven were dismissed
as to him. Dylan and Zakariya Boyd each pleaded guilty to the
Count One conspiracy, and, in exchange, the other charges
against them were dismissed. Boyd was sentenced to 216 months
in prison, and his sons Dylan and Zakariya were sentenced to 84
months and 93 months, respectively. Subasic was tried
separately from the appellants, convicted of the four offenses
alleged against him, and sentenced to 360 months. As for the
appellants, Hassan was convicted of the Count One conspiracy and
sentenced to 180 months; Yaghi was convicted of the Count One
and Count Two conspiracies and sentenced to 380 months; and
Sherifi was convicted of the Count One, Count Two, and Count
Eleven conspiracies, plus Counts Four and Eight, and he was
sentenced to 540 months. 1
1
Although seven of the eight defendants were apprehended
and successfully prosecuted, the eighth, Jude Kenan Mohammad,
apparently remains at large. Mohammad was charged solely with
the Count One and Count Two conspiracies. Other than Mohammad,
each of the defendants was convicted of the Count One
(Continued)
5
B.
The parties and the trial court were in substantial
agreement on the essential elements of the offenses tried before
the jury. 2 First, to obtain a conviction under 18 U.S.C. § 2339A
for the Count One conspiracy, the government was required to
prove as to each appellant: (1) that he entered into a
conspiracy; (2) that the objective of the conspiracy was to
provide material support or resources; and (3) that he then knew
and intended that the provision of such material support or
resources would be used in preparation for, or in carrying out,
a violation of 18 U.S.C. § 956. See United States v. Chandia,
675 F.3d 329, 332 n.1 (4th Cir. 2012). “[M]aterial support or
resources,” as used in § 2339A, includes currency and other
property, training, weapons, expert advice or assistance and
personnel. See § 2339A(b)(1). To prove the Count Two
conspiracy alleged under 18 U.S.C. § 956(a), the government was
obliged to show as to each appellant: (1) that he entered into
conspiracy. Boyd, Yaghi, Sherifi, and Subasic were convicted of
the Count Two conspiracy. Hassan was acquitted of the Count Two
conspiracy, and that charge was dismissed as to Zakariya and
Dylan Boyd.
2
At trial, there was debate over whether Count One
required, as an essential element of the offense, the commission
of an overt act. The trial court ruled that no overt act was
necessary. On appeal, the appellants have abandoned any issue
in that regard.
6
a conspiracy; (2) knowing and intending that the objective of
the conspiracy was murder, kidnapping, or maiming outside the
United States; (3) that the conspiracy was entered into within
the United States; and (4) that a conspirator, not necessarily a
defendant or an appellant, committed an overt act in furtherance
of the conspiracy within the jurisdiction of the United States. 3
The Indictment identified the purposes and objects of the
Count One and Count Two conspiracies, which were generally to
advance violent jihad, support and participate in terrorist
activities outside the United States, and commit acts of murder,
kidnapping, and maiming outside the United States. The manner
3
Section 2339A of Title 18 criminalizes “provid[ing]
material support or resources . . . knowing or intending that
they are to be used in preparation for, or in carrying out, a
violation of [certain enumerated statutes].” 18 U.S.C.
§ 2339A(a). Importantly, one of the statutes listed in
§ 2339A(a) is 18 U.S.C. § 956. Section 956 provides, in
pertinent part, that
[w]hoever, 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
. . . United States shall, if any of the conspirators
commits an act within the jurisdiction of the United
States to effect any object of the conspiracy, [be
guilty of an offense against the United States].
18 U.S.C. § 956(a)(1). The appellants have not challenged the
grand jury’s decision to charge the Count One and Count Two
conspiracies as separate offenses. As a result, we need not
examine whether Counts One and Two were merged for any purpose.
7
and means by which the conspiratorial objects were to be
accomplished by the defendants and their conspirators included
the following:
• To prepare to become “mujahideen” and die
“shahid” — that is, as martyrs in furtherance of
violent jihad;
• To radicalize others, mostly young Muslims or
converts to Islam, to believe in “fard’ayn,” the
idea that violent jihad is a personal obligation
on the part of every good Muslim;
• To offer financing and training in weapons, and
to assist in arranging overseas travel and
contacts so that others could wage violent jihad;
• To raise money to support efforts in training and
equipping personnel, and to disguise the
destination of such monies from the donors; and
• To obtain assault weapons such as the AK-47, and
to develop familiarity and skills with the
weapons of choice used by mujahideen in
Afghanistan and elsewhere.
Multiple overt acts were specifically alleged in the
Indictment that relate to the Count One and Count Two
conspiracies, including, inter alia:
• In late 2006, Yaghi travelled to Jordan to engage
in violent jihad;
• In late 2006, Boyd purchased a Bushmaster carbine
rifle and magazine;
• In early 2007, Boyd purchased a Ruger mini 14
long gun;
• In early 2007, Boyd purchased airline tickets to
Israel from the United States for himself and his
sons;
8
• In early 2007, plane tickets were purchased for
Yaghi and Hassan to travel from the United States
to Israel;
• In June 2007, Boyd, his son Zakariya, Yaghi, and
Hassan departed Raleigh, North Carolina, for
Israel. Having failed in their attempts to
engage in violent jihad, the four men returned to
the United States in late July 2007;
• Upon his arrival back in the United States, Boyd
lied to federal agents by denying that he had
intended to meet Hassan and Yaghi in Israel;
• In February 2008, Boyd solicited money to fund
the travel of “brothers” overseas to engage in
violent jihad;
• In June 2008, Boyd accepted $500 in cash from
Sherifi to help fund violent jihad;
• In June 2008, Boyd showed Sherifi how to use a
Kalashnikov AK-47;
• In June 2008, Sherifi departed North Carolina for
Kosovo to engage in violent jihad;
• In November 2008, Boyd purchased a Mossburg
rifle, a .357 revolver, and a Century Arms rifle;
• In early 2009, Boyd purchased an Ishmash SAGA
.308 rifle, three Century Arms rifles, a Ruger
5.56 rifle, and a Smith & Wesson .223 rifle;
• In April 2009, Sherifi returned from Kosovo to
the United States for the purpose of soliciting
funds and personnel to support the mujahideen;
and
• In June and July 2009, Boyd, Sherifi, and
Zakariya Boyd trained in military tactics and the
use of weapons in Caswell County, North Carolina.
With respect to the essential elements of Counts Four and
Eight — which were tried against Sherifi alone — the government
9
was required to establish: (1) that Sherifi knowingly possessed
a firearm on or about June 10, 2009, and again on or about July
7, 2009; and (2) that he did so to further the crime of violence
alleged in Count Two. See 18 U.S.C. § 924(c). 4 Those charges
arose from the weapons training sessions conducted by Boyd and
others in 2009 in Caswell County.
Finally, to secure Sherifi’s conviction under 18 U.S.C.
§ 1117 on the Count Eleven conspiracy, the government was
required to demonstrate: (1) that Sherifi entered into a
conspiracy; (2) the object thereof was to kill or attempt to
kill officers and employees of the executive branch of the
federal government (here, members of the uniformed services), on
account of — or while such officers and employees were engaged
in — the performance of their official duties; and (3) that at
least one overt act was committed in furtherance of the
conspiracy. 5 Count Eleven identified several overt acts,
4
Pursuant to 18 U.S.C. § 924(c), a “crime of violence” is a
felony offense that, “by its nature, involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense.” Section
956(a) of Title 18 — the Count Two conspiracy statute — falls
within that definition.
5
Section 1117 of Title 18 provides, in pertinent part, that
“[i]f two or more persons conspire to violate [certain sections]
of this title, and one or more of such persons do any overt act
to effect the object of the conspiracy, each shall be [guilty of
an offense against the United States].” Section 1114 is among
the enumerated sections, and makes it a crime to “kill[] or
(Continued)
10
including the following: In June 2009, Sherifi’s coconspirator
Boyd conducted reconnaissance at the Quantico, Virginia Marine
Corps Base; also in June 2009, Boyd reviewed maps of Quantico,
intending the maps to be used to plan and coordinate an attack
on the base; and, in July 2009, Boyd possessed weapons and
ammunition that would be used at Quantico, asserting that they
were for the base and to attack Americans.
C.
During the post-Indictment period leading to the trial, the
appellants filed multiple pretrial motions in the district
court, several of which sought to curtail the government’s case.
For example, the appellants challenged the government’s expert
witness and moved to exclude evidence obtained pursuant to the
Foreign Intelligence Surveillance Act (“FISA”). The district
court disposed of some of the appellants’ evidentiary challenges
prior to trial. First, after conducting a Daubert hearing, the
court authorized the trial testimony of the government’s expert,
Evan Kohlmann, subject to specified limitations. See Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Second, the
court considered and rejected the appellants’ challenges to the
attempt[] to kill any officer or employee of the United States
. . . while such officer or employee is engaged in or on account
of the performance of official duties.” 18 U.S.C. § 1114.
11
government’s FISA-derived evidence. After conducting an in
camera and ex parte review of relevant materials, the court
ruled that such evidence was admissible. Finally, the court
considered several other evidentiary challenges, holding some of
them in abeyance pending the trial proceedings.
Before trial, the prosecution moved to preclude the
appellants from arguing to the jury that their alleged unlawful
conduct was protected by the First Amendment. Although the
trial court agreed with the government “that there is no First
Amendment defense to the crimes with which [the appellants] are
charged,” the court determined “that granting the government’s
motion would go too far.” See United States v. Boyd, No. 5:09-
cr-00216, slip op. at 8-9 (E.D.N.C. July 12, 2011), ECF No.
1222. The court further explained:
While the government correctly points out that the
First Amendment provides no constitutional right to
actively support violent crime, the wording of the
government’s motion would suggest that defendants
should not be allowed to mention the First Amendment
at all at trial, a restriction that strikes the court
as inappropriate. As defendants note, it is the
government’s burden at trial to prove that defendants
engaged in unlawful conduct. Based on defendants’
briefs, it seems that defendants intend to challenge
exactly what “conduct” the government contends is
unlawful. This is a permissible argument to make.
However, in making opening and closing arguments and
in questioning witnesses, defendants may not invite
jury nullification by suggesting that the First
Amendment is a defense to the crimes charged. Both
sides may submit proposed jury instructions regarding
the First Amendment, and such proposals will be
considered by the court at the appropriate time.
12
Id. at 9 (footnotes omitted).
II.
During the trial itself — which was conducted in New Bern
over a three-week period in September and October of 2011 — the
government presented approximately forty witnesses. Of those,
about twenty-two were law enforcement officers, including FBI
agents and employees. Other prosecution witnesses included
expert Kohlmann, three informants, and three named
coconspirators (Boyd and his sons Dylan and Zakariya), as well
as former friends and associates of the defendants. 6 Of the
three appellants, only Sherifi presented evidence. During his
trial presentation, Sherifi called three witnesses, including
himself.
A.
Our description of the trial evidence is provided in the
light most favorable to the government. See United States v.
Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc). That
evidence established a series of conspiratorial activities
6
During the course of the terrorism investigation resulting
in the Indictment and prosecution, the government collected the
FISA-derived evidence, as well as other audio recordings, such
as those made by informants wearing recording devices. The
prosecution used computer records and a number of those
recordings in evidence plus materials seized from social media
and other internet sites.
13
centering on Boyd, who, after pleading guilty to two of eleven
charges, became the prosecution’s chief trial witness.
1.
A citizen of the United States who converted to Islam as a
child, Boyd had, as a young adult, spent time in Pakistan and
Afghanistan in the 1980s and early 1990s. While living abroad,
Boyd participated in the Afghan resistance against the Soviet
occupation and received the nickname “Saifulla,” which, in
Arabic, means “Sword of God.” Boyd later learned that he had
been in a training camp operated or funded by the notorious al-
Qaida leader Osama bin Laden. Boyd returned to the United
States in the early 1990s, and, after another trip to Pakistan,
settled with his family near Raleigh.
Boyd thereafter grew increasingly radicalized in his
religious beliefs and, by 2004, began to espouse a violent
ideology, including the view that the killing of non-Muslims was
a “fard,” or “fard’ayn,” that is, a religious obligation imposed
by Islam. As Boyd became more extreme, he disassociated himself
from the Islamic community in the Raleigh area. Boyd then began
to meet and discuss his violent religious views with others at
his Raleigh home and at the Blackstone Halal Market, a grocery
store he owned and operated for about a year in nearby Garner.
The appellants met and talked with Boyd on numerous occasions
during the course of the conspiratorial activities, during which
14
they often discussed violent jihad. Boyd explained that, to
him, jihad required “doing something to fulfill [his] obligation
in Islam,” and was “suggestive of [men] actually involving
[themselves] with going and physically helping with the
resistance or fighting against . . . the NATO forces in
Afghanistan or Iraq, or anyplace, really.” J.A. 1549. 7 Boyd and
the appellants “were at a point of agreement or a meeting of the
minds” as to this ideology and understanding of violent jihad.
Id. at 1549-50.
2.
a.
About 2005, the FBI initiated a criminal investigation into
Boyd’s activities. By mid-2006, the FBI had introduced its
first informant, Abdullah Eddarkoui, into the Boyd
investigation. In that capacity, Eddarkoui grew close to Boyd
and his family, eventually interacting with Boyd on a daily
basis. In 2007, the FBI introduced a second confidential
informant, Alvin Harris, into its investigation. Harris
obtained a job with another Boyd business, a construction
company called Saxum Walls. Like informant Eddarkoui, Harris
became a close friend of the Boyd family. Harris generally
7
Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties in these appeals.
15
spent several days a week with Boyd. Boyd eventually helped
Harris obtain a passport so that Harris could travel abroad to
engage in violent jihad.
Appellant Yaghi met Boyd in 2006 when Yaghi, then eighteen
years old, approached Boyd at an Islamic center in Durham. The
two men initially spoke about Boyd’s experiences in Afghanistan,
after which Yaghi obtained Boyd’s phone number. That same year,
the FBI also opened an investigation into Yaghi, which was
eventually merged into the Boyd investigation.
In the months that followed their first meeting in 2006,
Boyd and Yaghi had several conversations, primarily at Islamic
centers in the Raleigh area and in Boyd’s home. The men
discussed various topics, including Boyd’s experiences overseas,
plus his views on Islam and violent jihad. Yaghi also sought
Boyd’s advice about Jordan, because Yaghi wanted to travel in
that country to visit relatives and study Islam. Yaghi
explicitly asked Boyd where in Jordan he would find the “best
brothers.” J.A. 1548. This inquiry referred to Muslim men who
were “going to pray” and maintain “the bonds of fellowship and
Islam,” and those who “understood [the] obligation of jihad” and
could help Yaghi “gain access” to violent resistance movements.
Id. at 1550-51. In response, Boyd told Yaghi about a mosque in
Jordan where he could find the “best brothers.”
16
In October 2006, Yaghi travelled to Jordan. Shortly before
Yaghi left the United States, Boyd and several others — who
understood and shared Boyd’s violent and extremist ideology —
met in a parking lot outside a Durham Islamic center to wish
Yaghi well. Boyd described this as a “joyous send-off,” during
which Boyd and the others gave Yaghi gifts, including an Afghan
blanket and a “traditional Pashtun hat.” J.A. 1561-62. The men
wished Yaghi well, sending him off with the valediction “may we
meet again in heaven,” which conveyed their hope that Yaghi
would make his way to the battlefield, and, if he died, find his
way to heaven. Id. at 1555, 1562. According to Boyd, the terms
“battlefield” and “battlefront” were used to refer to locations
where Muslims were then actively waging violent jihad against
the “kuffar,” including wars in Afghanistan, Iraq, Kosovo,
Chechnya, Somalia, Palestine, and Kashmir. As Boyd and others
explained to the jury, “kuffar” is a derogatory term, commonly
used by violent Muslims to refer to non-Muslims. See id. at
989-90, 1399-1400, 1557. Boyd and his coconspirators shared the
view that getting to the jihadist battlefield and fighting
against the kuffar was a necessary and laudable aspiration.
While in Jordan in 2006, Yaghi remained in touch with Boyd
by phone and email. In November 2006, Yaghi sent Boyd an email
explaining that it was “getting more and more obvious that the
true believer[s]” of Islam — such as Yaghi and Boyd — were
17
“under attack by the kuffar and by ‘muslims.’” J.A. 4000. As
Boyd explained, Yaghi’s reference to “muslims” in that email
meant those who claimed to be believers but who were not
actually “true believers.” Id. at 1556-57. Boyd recalled a
“shared understanding amongst a lot of the rhetoric online and
some of the people in the community” that those who shared his
beliefs were “under attack . . . physically in the different
battlefields,” as well as “under attack ideologically from the
. . . naysayers of our religion,” who did not believe that
Muslims had an obligation to defend those fighting on the
jihadist battlefields. Id. at 1557.
Prior to his departure for Jordan, Yaghi told Boyd that he
hoped to find a wife overseas. While abroad, Yaghi wrote Boyd
that Yaghi was waiting to see how his “marriage” would go before
planning to “make [his] next move,” concluding by advising Boyd
that they would “meet in a far better place than this earth.”
J.A. 4000. It was understood by Boyd and his associates that
the phrases “getting married” and “finding a wife” were code for
seeking to reach the battlefield to engage in violent jihad.
Id. at 1592. 8 During some of their exchanges while Yaghi was
8
Kohlmann, the prosecution’s expert, explained to the jury
that speaking in a coded manner is common in jihadist cells:
“Frequently, in communications, individuals will talk about
getting married as a euphemism for engaging in a violent
extremist act, often a suicidal act, the idea being that you
(Continued)
18
abroad, Boyd recalled Yaghi seeming “frustrated” that Boyd
“wasn’t able to fulfill any real helpful role for [Yaghi] to,
you know, get inside somewhere to a battlefield.” Id. at 1560-
61.
While in the Middle East in 2006, Yaghi also posted
numerous statements and copious information on Facebook
concerning his adherence to the violent jihadist ideology.
Yaghi consistently praised the teachings of Anwar al-Awlaki, an
imam and cleric who was born in the United States and later
became an al-Qaida militant in Yemen. Al-Awlaki was well known
as an al-Qaida leader who espoused violent and radical jihadist
views. 9 While overseas, Yaghi also kept in touch with appellant
will be married to the virgins of paradise after the act is
completed.” J.A. 379.
9
Al-Awlaki grew to prominence in the United States during
the late 1990s as a cleric and activist. Following the
September 11, 2001 terrorist attacks, al-Awlaki came under
suspicion for his associations with two of the 9/11 hijackers.
Al-Awlaki was thereafter linked to other terrorist activities
within the United States, often communicating with the
perpetrators via email. In 2003, al-Awlaki departed this
country for Yemen and never returned, eventually becoming an
active high-ranking member of al-Qaida. Al-Awlaki published his
extreme views — particularly that violent jihad against America
was a binding obligation on Muslims — through speeches and
writings, which were widely disseminated on the internet. As
Kohlmann explained, al-Awlaki’s teachings “have proven
extraordinarily popular among extremists living in western
countries,” and have “regularly surfaced” in cases of “homegrown
terrorists.” J.A. 299. In 2011, al-Awlaki was killed by a
drone strike in Yemen.
19
Hassan, who had been his good friend for some time. Yaghi and
Hassan corresponded with one another largely through Facebook.
In their Facebook postings, Hassan and Yaghi discussed the
teachings of al-Awlaki and posted rap songs and poems about
their animosity towards the non-Muslim kuffar. One of Yaghi’s
Facebook postings included the following:
[F]eds tryed ta get at me but im quick wit the
trickery thas how I stay slippery / kuffar get smoked
like hickory / dickery dock i pull the glock so fast
the clock dont have chance ta tock / or tick let the
shots rip then I stop the shit / pop my wrists I don’t
give uck if cops exist / im above the law already
explained how im quick on the draw / heard the battle
in fallujahs ferocious / niggas runnin out of ammo but
they stay strapped wit explosives / rpg 7s I aint
worried if all them niggas die cuz inshallah they all
going ta heaven[.]
J.A. 4395. Hassan also posted violent rhymes, including the
following:
I used to smoke tree / but I dont do that shit no more
that shits far / only thing I smoke now is fuckin
kuffar / getting high off their deaths / fuck buryin
them, let the animals eat their flesh / leave their
bones for weapons or for conditioning my shins[.]
Id. at 4388. Hassan and Yaghi actively promoted the violent
views and teachings of al-Awlaki by providing literature and
videos to others, both within and outside the conspiracies.
In 2007, after Yaghi returned to North Carolina from
Jordan, he continued his friendship with Boyd. The two men met
on a substantial number of occasions throughout 2007. Yaghi
also introduced Hassan to Boyd and accompanied Hassan to Boyd’s
20
home at least twice. 10 During their visits with Boyd, the three
men discussed the “obligation of jihad,” which Boyd explained as
the need “to go and actually defend against the specific wars in
Iraq and Afghanistan that were taking place,” and to fight in
other wars that were “going on in the Muslim world,” such as in
Chechnya and Palestine. J.A. 1653-64.
b.
In February 2007, Yaghi learned that Boyd would be
travelling to Israel and Palestine with his sons. Yaghi asked
to accompany Boyd to the Middle East and asked if Hassan could
join them as well. Because the Boyds were taking a family trip,
Boyd told Yaghi that he and Hassan could not travel with the
Boyds. Boyd agreed, however, to facilitate the purchase of
plane tickets for Yaghi and Hassan to fly to Israel. Yaghi and
Hassan then gave Boyd money for their tickets, and Boyd arranged
through a travel agency for a wire transfer of the necessary
funds. Boyd believed that Hassan and Yaghi wanted to travel
overseas in an effort to “get to a battlefront somewhere.” J.A.
1587. Boyd also told informant Eddarkoui that he had asked
Yaghi and another boy (whom Boyd did not specifically identify)
to “go somewhere overseas for jihad.” Id. at 780. In the
10
Although Hassan had been “peripherally known to the Boyd
family during his teenage years,” J.A. 3071, Hassan did not meet
Boyd until 2007, when Hassan was approximately twenty years old.
21
months leading to their June 2007 trip, Hassan and Yaghi sought
Boyd’s advice about travelling in Israel and Palestine, and
about the locations they should visit. Hassan and Yaghi also
told Boyd that they hoped “to get married” and find wives while
they sojourned in the Middle East. Id. at 1571.
Hassan and Yaghi discussed being familiar with firearms and
assault weapons, as well as the need for training in their use,
both with one another and with Boyd. Hassan and Yaghi knew that
Boyd maintained a large stockpile of such weapons. Boyd had
built his weapons arsenal over the years, and it included
numerous assault rifles and handguns. The Boyd sons were also
familiar with such weapons. Prior to 2006, for example, Dylan
Boyd showed an AK-47 to a high school friend. Hassan and Yaghi
discussed the need to obtain such weapons to use in implementing
their beliefs in violent jihad. In early 2007, Hassan wrote on
Yaghi’s Facebook page, “[Y]o, theres an AK in Garner for sale —
only 250 dollar . . . us 3 could get it for real.” J.A. 4383.
Hassan also posted a link to a YouTube video concerning the
basics of shooting and marksmanship. In March 2007, Hassan
purchased a small caliber rifle from a sporting goods store in
North Carolina. Several months later, Hassan and Yaghi gave
Boyd a car ride from a mosque in Durham where the three men had
been attending religious services. During the ride, Hassan and
22
Yaghi showed Boyd the small rifle, explaining that they had
purchased it for “training” and “target practice.” Id. at 1796.
c.
Boyd and his son Zakariya departed for Israel on June 12,
2007, and Hassan and Yaghi left the very next day. Boyd and
Zakariya were denied entry into Israel, however, and they
instead went to Jordan via France. The Boyds toured Jordan,
staying with a friend, and they concluded their Jordanian trip
in the town of Salt, where they were joined by Dylan Boyd. Like
the Boyds, Yaghi and Hassan were denied entry into Israel; they
instead detoured to Jordan via Germany.
While abroad, Hassan and Yaghi repeatedly sought to contact
Boyd by email and telephone. They received no responses from
Boyd, however, notwithstanding that Boyd had email access during
his travels. Hassan and Yaghi also attempted to reach Boyd by
calling his home in North Carolina, but they were unable to make
contact. Boyd later told the FBI that, as the trips were
originally planned, he was to meet Hassan and Yaghi when they
arrived in Israel and “hook them up” with persons who would
assist their travels in Israel and Palestine. J.A. 1584.
Hassan and Yaghi were to “go on their way from there,” id., that
is, they would ultimately find their way to the battlefield and
participate in violent jihad.
23
While the four men were travelling in the Middle East,
rumors circulated in Raleigh that Boyd had sent Hassan and Yaghi
overseas to go to the battlefield — specifically to engage in
violent jihad. Boyd learned that Aly Hassan, Hassan’s father in
North Carolina, was upset by those rumors. Boyd called the
senior Hassan from Jordan, and the two men had a heated
discussion about the younger Hassan’s travel plans. Boyd told
the senior Hassan that Boyd was not in touch with either Hassan
or Yaghi, and he could not get a message to them.
d.
After Boyd and his sons, on the one hand, and Hassan and
Yaghi, on the other, returned from their 2007 trips to the
Middle East, Hassan and Yaghi remained close friends. Their
contacts with Boyd, however, diminished substantially. Hassan
and Yaghi neither emailed nor phoned Boyd, but they visited him
at the Blackstone Halal Market in Garner on at least two
occasions, in the fall of 2007 and again in the spring of 2008.
During one of those visits, Yaghi introduced Boyd to defendant
Jude Kenan Mohammad.
Mohammad had been raised in the United States, though his
father was from Pakistan and still lived there. Boyd and
Mohammad became good friends, often discussing such matters as
Boyd’s experiences fighting in Afghanistan, Mohammad’s relatives
in Pakistan, and their shared radical and violent religious
24
views. Mohammad also spoke of the evils of westernized living.
In the fall of 2008, Mohammad talked of travelling to Pakistan
to “go back with his people,” which Boyd “assumed was to
eventually try to get to the battlefield.” J.A. 1605-06.
Mohammad also stayed at the Boyd home when the Boyds were on
vacation. While in Boyd’s home, Mohammad reviewed Boyd’s
materials on violent jihad and extremist Islamic ideology.
Mohammad passed along some of those jihadist materials to
others, including Yaghi. His mother recalled dramatic changes
in Mohammad’s behavior during 2008, after he began to espouse
Boyd’s violent jihadist ideology. In October 2008, Mohammad
went to Pakistan. Following his departure, Mohammad’s mother
confronted Yaghi — who had moved into Mohammad’s apartment —
about the changes in her son. Yaghi advised her that Mohammad
was “in the same place” that Yaghi had been “a year prior.” Id.
at 1904-05. Boyd explained that being in the “same place”
metaphorically referred to Mohammad having the understanding and
beliefs that Yaghi espoused with respect to violent jihad. Id.
at 1744.
e.
Aside from the aforementioned encounters at the Blackstone
Halal Market, Boyd had little contact with either Hassan or
Yaghi after their return from the 2007 trip to the Middle East.
In January 2009, Yaghi and Hassan were arrested on unrelated
25
charges. 11 While detained, Hassan asked his then paramour to
email al-Awlaki directly to seek advice on Hassan’s behalf.
Hassan also asked her to remove from Facebook some of Hassan’s
postings, messages, and videos, specifically those relating to
violent jihad. In March 2009, Boyd contacted Yaghi, seeking to
ascertain what, if anything, Yaghi may have discussed with law
enforcement officers while he was in custody. In that
conversation with Boyd, Yaghi denied being a snitch. Otherwise,
Hassan and Yaghi failed to keep in touch with Boyd, and the
government has conceded that they were not part of Boyd’s inner
circle after late 2007.
Although the defense lawyers for both Hassan and Yaghi
emphasized their clients’ termination of communications with
Boyd, the evidence — viewed in the proper light — established a
“parallel set of initiatives” that the prosecution proved were
being carried on by Hassan and Yaghi in 2008 and 2009. See
United States v. Boyd, No. 5:09-cr-00216, slip op. at 19
(E.D.N.C. Oct. 10, 2011), ECF No. 1494 (“Sufficiency Opinion
I”). As the district court explained, after his return from the
2007 trip to the Middle East, Yaghi gave a speech at the Islamic
11
According to court records, Hassan, Yaghi, and another
man were charged with kidnapping and restraining a student at
North Carolina State University during a robbery. Hassan
pleaded guilty to false imprisonment, and Yaghi pleaded guilty
to felonious restraint.
26
Association of Raleigh promoting jihad and the corresponding
moral obligation to commit violence against non-Muslims. Hassan
and Yaghi regularly communicated with one another through email
and Facebook about jihadist ideology and continued to discuss
and engage in weapons training. Hassan espoused increasingly
violent and extremist jihadist views during that period, as
demonstrated by his Facebook postings. The trial court
emphasized that Hassan was highly proficient in using technology
to disseminate his beliefs and in seeking to recruit others to
his violent ideology. See id. at 25. Hassan also became
progressively fervent in his support of al-Awlaki.
Hassan befriended an individual named Jamar Carter in late
2006 or early 2007, first meeting Carter at a UPS store where
Carter worked near Raleigh. Hassan and Yaghi introduced Carter
to the Islamic religion, and shared with Carter their beliefs in
violent jihad and appreciation for the teachings of al-Awlaki.
At one point, Hassan showed Carter videos depicting car bombings
and expressed his view that such actions were permissible.
Carter, having decided that his views of Islam varied
dramatically from those of Hassan and Yaghi, eventually ceased
associating with them.
Boyd’s lack of contact with Hassan and Yaghi after 2007 was
attributed by the prosecution to several factors, including
Boyd’s concern that Hassan and Yaghi talked too much and drew
27
unwanted attention to Boyd and his family. As the trial court
observed, Boyd was questioned by FBI agents twice in the summer
of 2007, once in July and again in August, and Boyd thus grew
ever more concerned that he was under FBI surveillance. See
Sufficiency Opinion I at 18. During his meetings with the FBI,
the agents asked Boyd about his travels abroad and his contacts
with Hassan and Yaghi. Boyd misled the FBI concerning the
extent of his contacts with Hassan and Yaghi, initially failing
to reveal that he had planned to meet Hassan and Yaghi in 2007
while they were travelling abroad in the Middle East.
3.
a.
In March 2008, a mutual friend introduced Boyd to appellant
Sherifi, who was then about twenty-three years old. Sherifi and
Boyd became close friends, and Sherifi often visited the
Blackstone Halal Market where he and Boyd discussed their shared
views advocating a violent jihadist ideology. 12 Boyd and Sherifi
believed that dying “shahid” — as a martyr — was an important
goal for a good Muslim. In the spring of 2008, Sherifi
introduced Boyd to defendant Subasic.
12
The Blackstone Halal Market closed in approximately mid-
2008. Thereafter, several of the coconspirators met regularly
in Boyd’s home.
28
Sherifi, Boyd, Dylan, and Zakariya made regular efforts to
raise money to support jihadist causes — that is, to fund their
own travels or to send money to other “brothers” to further
violent jihadist efforts overseas. In June of 2008, Sherifi
gave Boyd $500 cash for the “sake of Allah.” J.A. 1657. Boyd
explained “that this money was to be used to either help get
somebody over there to the battlefield or get it to the people
who were already there fighting.” Id. On July 21, 2009,
shortly before his arrest, Sherifi received a $15,000 check from
a man named Elbaytam, who lived in Raleigh and attended the same
mosque as Sherifi. Elbaytam may have intended the funds for
charity, consistent with the Muslim custom of “zakat,” i.e.,
charitable giving based on accumulated wealth. Sherifi advised
informant Eddarkoui, however, that the money would instead be
used to support jihadist efforts. On July 23, 2009, Sherifi
deposited $5,000 cash into his bank account.
Sherifi also spoke with Boyd about his desire to travel
abroad to join in violent jihad. In June 2008, Sherifi told
Boyd about the challenges that Sherifi faced in obtaining the
necessary travel documents. Sherifi also speculated that when
“there was Shari’ah” he could travel anywhere. J.A. 4035. 13
13
Shari’ah is a term used to generally describe the moral
and religious rules of Islam, as well as its teachings.
29
Boyd suggested that if Sherifi could not travel, he should “make
jihad” in the United States. Id. Sherifi promptly responded in
the affirmative, intoning “Inshallah,” or “God willing.” Id.
In July of 2008, Sherifi was finally able to travel, and he
departed for Kosovo. Sherifi advised some friends in Raleigh
that he would be visiting family, while telling others that he
was “looking for a way to go somewhere to make Jihad.” J.A.
765-66. Boyd and Sherifi thereafter remained in close contact,
continuing their discussions about violent jihad. Boyd advised
Sherifi about getting to the “battlefield” and finding others
who adhered to his and Boyd’s extremist Islamic views. Boyd and
Sherifi also discussed Sherifi’s plans while he was abroad.
Sherifi hoped ultimately to travel to Jerusalem, and he also
considered travelling to Chechnya or Syria to aid in violent
jihadist movements. In January 2009, Sherifi wrote Boyd that he
had obtained travel documents to a location that, though not his
planned destination, was “a good place to seek the greatest
pleasure of Allah.” Id. at 4011. Sherifi also remained in
contact with informant Eddarkoui, advising him of efforts to
obtain weapons and participate in weapons training with like-
minded persons in Kosovo. In November of 2008, Sherifi wrote to
Eddarkoui that “Allah ha[d] opened a way for [him].” Id. at
4009. Zakariya explained that opening or finding a way, in the
context of violent jihad, meant that Allah had provided a “safe
30
route that you wouldn’t get in trouble through to reach a
current battlefield.” Id. at 2468-69.
In January 2009, the FBI introduced a third confidential
source into its investigation: Melvin Weeks, a Staff Sergeant
in the United States Army at Camp Bondsteel, Kosovo. After
meeting at a local mosque, Sherifi and Weeks soon became good
friends. Sherifi, who believed that jihad meant “to fight
physically with weapons against the enemies of Islam, wherever
they are at and whoever they might be,” J.A. 1947, thereafter
began to discuss his violent jihadist beliefs with Weeks and
made efforts to convert him. As Weeks explained, jihad, to
Sherifi, was not “the jihad of the Prophet Mohammad,” but rather
“just murderous acts against innocent soldiers and civilians.”
Id. at 2018. Over the next few months, Sherifi provided Weeks
with literature and videos, including a video of a beheading,
coupled with the explanation that it was “[w]hat happens to the
one who leaves the din,” i.e., one who leaves the religion of
Islam. Id. at 1973. Sherifi also introduced Weeks to the
teachings of al-Awlaki, providing him with an al-Awlaki writing
entitled “44 Ways to Support Jihad,” in which the Imam explained
how devoted “brothers” could assist violent jihadist causes by
providing money and translating extremist texts, among other
things. Weeks testified that Sherifi believed the “whole point
of governance” was to impose Shari’ah law, and that Sherifi did
31
not respect any other form of government. Id. at 2001-02.
According to Weeks, Sherifi viewed everyone who did not share
Sherifi’s beliefs in violent ideology to be an enemy of Islam,
including “[e]verybody that America [or its allies were]
fighting against.” Id. at 1949.
While Sherifi was abroad in Kosovo, he also spent time with
some like-minded individuals who agreed with Sherifi and
advocated violent jihad. As a prime example of such contacts,
Sherifi spoke with Bajram Asllani, also known as Abu Hatab, who
was a native of Kosovo. Asllani, at the time of trial, was
“wanted by the United States government” on “charges of material
. . . support to terrorism and conspiracy to kill, maim and
injure overseas.” J.A. 2897. Asllani was also wanted in
Serbia, where he had been tried and convicted in absentia for
his involvement in a “conspiracy to blow up several buildings.”
Id. After Sherifi returned to the United States from Kosovo, he
maintained contact with Asllani, speaking with him at least once
using a video camera on a computer. According to Sherifi’s own
testimony, he spoke with Asllani several times and translated
documents for him, though Sherifi claimed never to have met
Asllani in person. Sherifi also wired Asllani money so that
Asllani, who was still in Kosovo, could obtain travel documents.
32
b.
During the course of his conspiratorial activities, Boyd
secured and maintained an extensive firearm and weapons arsenal,
which he kept in and about his home and vehicles. Boyd and his
sons generally carried firearms on their persons, and Boyd
regularly purchased large quantities of ammunition. Zakariya
explained that Boyd focused on obtaining armor-piercing
ammunition as well as deadly hollow-point handgun ammunition.
Beginning in 2008, Boyd voiced an interest in relocating his
family overseas and talked about moving to Jordan. Boyd even
began to sell his personal property, including some of his
firearms, in preparation for such a move. Boyd was concerned
that he would not be able to travel with his entire arsenal and,
as a result, built a weapons bunker beneath his back porch and
deck, where he planned to store some of the firearms. In July
2009, Boyd, Sherifi, and Harris spent several days working on
the weapons bunker. The weapons bunker consisted of an
entrenchment roughly six feet deep and was lined with sandbags
for protection and stability.
c.
In May 2009, Sherifi returned to the United States from
Kosovo, leaving his wife in that Balkan country. Sherifi told
friends in Raleigh that he had returned to North Carolina to
save money to buy a family farm in Kosovo. Sherifi advised
33
others that he planned for the farmland in Kosovo to be used by
his jihadist “brothers” en route to the “battlefield.”
That spring, Boyd and Sherifi discussed and developed a
scheme to attack the Quantico Marine Corps Base in eastern
Virginia. While abroad, Sherifi had identified Camp Bondsteel
in Kosovo as a potential target for attack, because the
“brothers” hated the presence of American soldiers in Kosovo.
After returning to this country, Sherifi worked delivering
medical supplies to various locations, including the Fort Bragg
Army Post in North Carolina. Sherifi boasted to Boyd about how
easy it was, as a delivery truck driver, to access such military
facilities. Boyd and Sherifi then identified Quantico as a
target, in part because Boyd was already familiar with Quantico,
having lived there as a child. As a result, Boyd travelled to
Quantico to get a closer look, supplementing his reconnaissance
efforts with online research on Google and other websites.
Following his visit to Quantico, Boyd reported to Sherifi that
it was easy to access the base.
On several occasions, Boyd and Sherifi discussed their
planned attack on Quantico, and, at least once talked about
kidnapping a Marine officer, “a general or someone of high
rank.” J.A. 1697. Boyd proposed holding the officer for
ransom, seeking in return the release of an Islamic scholar
being imprisoned by the United States. As part of this scheme,
34
Boyd suggested cutting off the Marine’s ring finger and
“sen[ding] his finger with one of his rings” to Marine officials
so that the Marines would “know it was him” and that he was
Boyd’s prisoner. Id.
d.
In the summer of 2009, Sherifi participated in two weapons
training sessions in Caswell County, North Carolina. Those
sessions involved Boyd and others, including informants Harris
and Eddarkoui. The first session occurred on June 10, 2009, and
the second was conducted about a month later, on July 7, 2009.
The sessions took place on a rural property that Harris had
obtained for weapons training, telling the group that it
belonged to one of his relatives. The property was actually,
however, under government control and FBI surveillance. Boyd
organized the “practice” sessions with the “idea . . . that they
would use this [training] in furtherance if they were to go to
try and fight somewhere.” J.A. 1820. During the sessions, Boyd
instructed his trainees on military tactics and weapons skills,
showing them how to use a variety of firearms. At the second
session, Boyd taught the trainees more about military maneuvers.
Boyd also had his trainees practice their firearms skills while
he fired automatic weapons, so that they would become accustomed
to using weapons while being subjected to the sound of gunfire.
35
Sherifi attended and participated in both training sessions, and
he sought to recruit others to the second session.
On July 22, 2009, soon after the second training session,
the initial indictment was returned in these proceedings. Boyd
and his coconspirators had planned a third session for July 27,
2009, the very date on which they were arrested. After the
arrests, the FBI seized Boyd’s weapons arsenal from his home,
together with various and sundry gas masks, computers, cell
phones, and cash. 14 Fifteen of the firearms were loaded at the
time of their seizure. A corresponding search of the North
Carolina home of Sherifi’s parents resulted in the seizure of
packed suitcases and a money belt containing $10,000 in cash.
B.
During the trial, the appellants raised a number of
evidentiary objections and reiterated various First Amendment
arguments, some related to the court’s jury instructions. On
October 7, 2011, at the close of the government’s case, the
appellants moved for judgments of acquittal. The trial court
14
At the time of the initial indictment and during his
ongoing conspiratorial activities, Boyd possessed more than
forty weapons. Boyd’s arsenal included assault weapons, sniper
rifles, handguns, shotguns, and tens of thousands of rounds of
ammunition. See J.A. 4274-79 (cataloging Boyd’s arsenal). Boyd
had at least ten assault weapons, including several Bushmasters
and AK-47s; at least twenty rifles and shotguns; and more than a
dozen handguns.
36
denied each of the acquittal requests, explaining that the
evidence, viewed in the light most favorable to the prosecution,
was sufficient for the jury to find each of the appellants
guilty of the charged offenses. The appellants renewed their
acquittal motions — again on sufficiency grounds — at the close
of all the evidence, and then again after the jury returned its
verdicts. The acquittal motions were all denied.
The prosecution’s closing argument reiterated the key
evidence linking each of the appellants to the charged
conspiracies, focusing on the covert and secretive nature of the
appellants’ plans. The prosecution sought to underscore the
violent tendencies of the appellants and their coconspirators,
as evidenced by their fascination with weapons, postings on
Facebook, and day-to-day communications with one another. The
prosecutors also explained the government’s view of the
evidence, particularly Boyd’s testimony, plus that of expert
Kohlmann concerning home-grown terrorism cells. Conversely, the
defense lawyers focused on what they characterized as the
scattered and vague evidence supporting the conspiracy
allegations, contending that the prosecution had failed to
establish any concrete object thereof, resulting in a fatal
deficiency in its case. Moreover, the defense lawyers attacked
the credibility of Boyd and his sons, arguing that their
potential to receive life sentences had been substantially
37
reduced by their testimony against the appellants. The defense
also asserted that the FBI informants were not credible,
emphasizing that all had been paid for their testimony.
Finally, the lawyers stressed that, under the First Amendment,
the appellants should not be convicted because the evidence
against them consisted primarily of protected speech and, in any
event, failed to prove the charged conspiracies.
On October 13, 2011, after the closing arguments and
instructions, the jury deliberated and returned its separate
verdicts. On January 13, 2012, the court sentenced each
appellant, and it thereafter filed three sentencing opinions
explaining the sentences imposed. These consolidated appeals
followed. We possess jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). 15
III.
By their appeals, the appellants challenge their
convictions in multiple respects. First, they contend that
their convictions cannot stand because the trial court committed
15
We are appreciative of the extensive efforts rendered in
this case by our district court colleague, who patiently
addressed the various issues presented. The record convincingly
demonstrates her diligence, reflected in nearly a dozen written
opinions, plus innumerable orders and oral rulings. We also
commend defense counsel for ably and robustly representing the
appellants.
38
reversible error in its First Amendment analysis. Second, the
appellants pursue recognition of several evidentiary errors,
seeking relief by way of a new trial. Finally, they maintain
that their motions for judgments of acquittal were erroneously
denied, in that the trial evidence was legally insufficient to
sustain any of their convictions. We begin with the First
Amendment, followed by other issues.
A.
The appellants contend that the trial court committed
reversible error in its handling of the argument that their
speech espousing violent jihad was protected by the First
Amendment. Concomitantly, the appellants assert that they never
agreed to take action in connection with their beliefs and
expressions, and thus were prosecuted purely for their offensive
discourse. Of course, their argument ignores that the jury
found — as it was required to do in order to convict — that the
appellants had, in fact, agreed to take action in furtherance of
violent jihad.
1.
The First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech.” U.S. Const. amend.
I. The Supreme Court has explained that, “as a general matter,
the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its
39
subject matter, or its content.” United States v. Stevens, 559
U.S. 460, 468 (2010) (internal quotation marks omitted).
Notwithstanding the foregoing, the First Amendment’s protections
are not absolute, and the Court has approved government
“restrictions upon the content of speech in a few limited
areas, . . . including obscenity, defamation, fraud, incitement,
and speech integral to criminal conduct.” Id. (citations and
internal quotation marks omitted). Moreover, the Court has been
clear that prohibited conduct cannot “be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to
express an idea.” Wisconsin v. Mitchell, 508 U.S. 476, 484
(1993) (internal quotation marks omitted).
The statutes underlying the appellants’ various convictions
serve, inter alia, to criminalize providing, and conspiring to
provide, material support for terrorism, see 18 U.S.C. § 2339A;
conspiring to murder, kidnap, or maim outside the United States,
id. § 956(a); and conspiring to kill a federal officer or
employee, id. § 1117. Often, those offenses involve speech.
For example, the § 2339A convictions in United States v. Stewart
were premised on evidence that the defendants provided material
support — personnel — to a § 956(a) conspiracy by communicating
to the conspirators the messages of “‘spiritual’ leader” Abdel
Rahman that were intended to induce “criminal acts of violence.”
See 590 F.3d 93, 112-16 (2d Cir. 2009). The Second Circuit
40
rejected the defendants’ First Amendment argument that, because
“the government established only that they provided the
underlying conspiracy with Abdel Rahman’s ‘pure speech,’” the
defendants “did not provide ‘personnel’ within any
constitutional interpretation of section 2339A.” Id. at 115.
In so doing, the Stewart court determined that the issue was one
of protected speech, rather than pure speech, and that Rahman’s
“call to arms” was not protected. Id. The court explained that
“[w]ords that instruct, solicit, or persuade others to commit
crimes of violence violate the law and may be properly
prosecuted.” Id. (alteration and internal quotation marks
omitted).
The appellants’ First Amendment contention is somewhat
different than that of the Stewart defendants. As the
appellants would have it, their convictions unconstitutionally
rest on their own protected speech, i.e., mere expressions of
belief in violent jihad. The appellants invoke Holder v.
Humanitarian Law Project, 130 S. Ct. 2705 (2010), wherein the
Supreme Court recently entertained a First Amendment challenge
to 18 U.S.C. § 2339B (making it a federal crime to knowingly
provide material support or resources to “a foreign terrorist
41
organization” designated as such by the Secretary of State). 16
The Humanitarian Law Project plaintiffs “claimed that they
wished to provide support for the humanitarian and political
activities of [foreign terrorist organizations in Turkey and Sri
Lanka] in the form of monetary contributions, other tangible
aid, legal training, and political advocacy, but that they could
not do so for fear of prosecution under § 2339B.” 130 S. Ct. at
2714. Although the Supreme Court concluded that, “in
prohibiting the particular forms of support that plaintiffs seek
to provide to foreign terrorist groups, § 2339B does not violate
the freedom of speech,” id. at 2730, the Court emphasized “that
Congress has [not] banned [the plaintiffs’] pure political
speech,” id. at 2722 (internal quotation marks omitted). That
is,
[u]nder the material-support statute, plaintiffs may
say anything they wish on any topic. They may speak
and write freely about the [foreign terrorist
organizations], the governments of Turkey and Sri
16
The Humanitarian Law Project decision concerned the
constitutionality of § 2339B, rather than § 2339A. Section
2339A(a) prohibits the provision of “material support or
resources” while “knowing or intending that they are to be used
in preparation for, or in carrying out,” violations of certain
terrorism statutes. Meanwhile, § 2339B(a)(1) prohibits
“knowingly provid[ing] material support or resources” to an
organization that has been designated as a “foreign terrorist
organization” by the Secretary of State. Thus, both § 2339A and
§ 2339B criminalize the provision of “material support,” but
they have some different elements. See United States v.
Chandia, 514 F.3d 365, 372 (4th Cir. 2008).
42
Lanka, human rights, and international law. They may
advocate before the United Nations. . . . The
statute does not prohibit independent advocacy or
expression of any kind. Section 2339B also does not
prevent plaintiffs from becoming members of the
[organizations] or impose any sanction on them for
doing so. Congress has not, therefore, sought to
suppress ideas or opinions in the form of “pure
political speech.” Rather, Congress has prohibited
“material support,” which most often does not take the
form of speech at all. And when it does, the statute
is carefully drawn to cover only a narrow category of
speech to, under the direction of, or in coordination
with foreign groups that the speaker knows to be
terrorist organizations.
Id. at 2722-23 (alteration and internal quotation marks
omitted); see also Stewart, 590 F.3d at 115 (“The government
does not deny that section 2339A may not be used to prosecute
mere advocacy or other protected speech, but contends that the
defendants were prosecuted for criminal actions that did not
amount to protected speech.”).
The appellants rely on Humanitarian Law Project for the
proposition that they could not be convicted under § 2339A for
simply speaking, writing about, or even joining a terrorist
organization. That proposition, however, does not undermine any
of the appellants’ convictions. Their convictions rest not only
on their agreement to join one another in a common terrorist
scheme, but also on a series of calculated overt acts in
furtherance of that scheme. For example, each of the appellants
travelled abroad seeking to reach locations considered to be
jihadist battlefields, with the hope and intent of engaging in
43
violent jihad. To prepare themselves for jihad, the appellants
trained with weapons and took instruction from Boyd. Moreover,
Sherifi and Yaghi endeavored to recruit others into the
conspiracies: Sherifi through explicit efforts to recruit
Sergeant Weeks, and Yaghi by introducing Mohammad and Hassan to
Boyd.
Furthermore, it was entirely consistent with the First
Amendment to make “evidentiary use of [the appellants’] speech
to establish the elements of [their] crime[s] or to prove motive
or intent.” See Mitchell, 508 U.S. at 489. Indeed, because
“the essence of a conspiracy is an agreement to commit an
unlawful act,” United States v. Jimenez Recio, 537 U.S. 270, 274
(2003) (emphasis added) (internal quotation marks omitted), the
supporting evidence may necessarily include a defendant’s
speech. See United States v. Rahman, 189 F.3d 88, 117 (2d Cir.
1999) (including conspiracy in list of offenses that “are
characteristically committed through speech”). Such is the case
here, where the appellants engaged in extensive conversations
with Boyd and others about the necessity of waging violent jihad
and their shared goal of reaching the jihadist battlefield.
Meanwhile, evidence such as Sherifi’s discussions with Weeks
about the religious obligation to engage in jihad, as well as
Sherifi’s statements to Eddarkoui about plans to recruit Weeks
for violent jihad in Somalia, allowed the jury to attach
44
nefarious intent to what otherwise might have been considered
innocent acts. As further examples, Hassan’s and Yaghi’s
Facebook postings advocating violent jihad, as well as their
conversations with Boyd to that effect, serve as compelling
support for the jury’s finding that Hassan and Yaghi travelled
abroad with the hope of acting on their beliefs by engaging in
jihad and fighting against the “kuffar.”
As the Sixth Circuit explained with regard to another
terrorism prosecution under 18 U.S.C. § 2339A, “[f]orming an
agreement to engage in criminal activities — in contrast with
simply talking about religious or political beliefs — is not
protected speech.” United States v. Amawi, 695 F.3d 457, 482
(6th Cir. 2012). In that case, “although the conspiracy was
closely related to, and indeed proved by, many of the
defendants’ conversations about political and religious matters,
the conviction was based on an agreement to cooperate in the
commission [of] a crime, not simply to talk about it.” Id. The
Amawi analysis is readily applicable here. Put succinctly, the
First Amendment was no bar to the government’s use of the
appellants’ speech to demonstrate their participation in the
charged conspiracies.
2.
In any event, the appellants contend that the jury was not
fully instructed — and thus misled — on the scope of the First
45
Amendment’s protections. The trial court’s First Amendment
instruction advised the jury as follows:
I turn your attention now to the First Amendment to
the United States Constitution, which establishes
certain rights which accrue to each defendant. The
First Amendment provides, in part, that Congress shall
make no law respecting an establishment of religion or
prohibiting the free exercise thereof or abridging the
freedom of speech or of the press or the right of the
people to be peaceably assembled. The right of
freedom of speech and to engage in peaceful assembly
extends to one’s religion and one’s politics. Having
instructed you concerning rights of each defendant
pursuant to the First Amendment, I also instruct you
that the First Amendment is not a defense to the
crimes charged in the indictment.
J.A. 3567-68. Although the appellants offered eleven other
First Amendment instructions, their appeal focuses on just three
of those proposals. Specifically, they argue that their
proposed instructions 37, 40, and 45 were erroneously excluded
from the court’s charge to the jury. 17 Those proposed
instructions were as follows:
17
The appellants also challenge on First Amendment grounds
the trial court’s rejection of proposed instruction 28. Rather
than pertaining to any protections accorded by the First
Amendment, however, that proposal reflects the appellants’
(incorrect) interpretation of the elements of the Count One
conspiracy.
The appellants have further suggested that the trial
court’s charge was not just deficient but also incorrect,
because the court affirmatively instructed that the First
Amendment was not a defense to the crimes charged. The
appellants failed to adequately address that claim in their
opening brief, however, and therefore have abandoned it. See
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
(Continued)
46
Number 37: [Each appellant’s] right to exercise
religion guarantees his right to believe and profess
whatever religious doctrine he desires.
Number 40: The First Amendment protects speech that
encourages others to commit violence, unless the
speech is capable of producing imminent lawless
action. Speech that makes future violence more
likely, such as advocating for illegal action at some
indefinite time in the future, is protected. Thus,
speech may not be punished just because it makes it
more likely that someone will be harmed at some
unknown time in the future.
Number 45: The First Amendment right to free speech
protects the right of an individual or group to
advocate for the use of force or advocate for the
violation of law so long as the speech is: 1) not
directed to incite or produce imminent lawless action
and 2) is not likely to incite or produce imminent
lawless action. The First Amendment even protects an
individual’s right to praise groups or persons using
terrorism as a means of achieving their ends.
Advocacy is pure speech protected by the First
Amendment.
See id. at 453-460. 18
1999) (“Failure to comply with the specific dictates of [Federal
Rule of Appellate Procedure 28(a)] with respect to a particular
claim triggers abandonment of that claim on appeal.”).
18
Pursuant to Rule 30(d) of the Federal Rules of Criminal
Procedure, “[a] party who objects to any portion of the
instructions or to a failure to give a requested instruction” is
required to “inform the court of the specific objection and the
grounds for the objection before the jury retires to
deliberate.” A “failure to object in accordance with this rule”
will, in most instances, preclude appellate review. See United
States v. Ebersole, 411 F.3d 517, 526 (4th Cir. 2005). The
appellants made arguments in favor of their proposed
instructions — including numbers 37, 40, and 45 — prior to the
court’s charge to the jury. The record reveals, however, that
the appellants only identified instructions 37, 47, and 48 in
their post-charge objections. Nevertheless, the government does
(Continued)
47
We review for abuse of discretion a trial court’s decision
to either give or refuse to give a proposed instruction. See
United States v. Lighty, 616 F.3d 321, 366 (4th Cir. 2010)
(internal quotation marks omitted). In assessing a claim of
instructional error, “we do not view a single instruction in
isolation; rather we consider whether taken as a whole and in
the context of the entire charge, the instructions accurately
and fairly state the controlling law.” United States v.
Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (internal quotation
marks omitted). Thus, “[a] district court commits reversible
error in refusing to provide a proffered jury instruction only
when the instruction (1) was correct; (2) was not substantially
covered by the court’s charge to the jury; and (3) dealt with
some point in the trial so important, that failure to give the
requested instruction seriously impaired the defendant’s ability
to conduct his defense.” Lighty, 616 F.3d at 366 (internal
quotation marks omitted).
Even if the three rejected instructions correctly recite
the legal principles espoused therein, the appellants
nevertheless fail in two essential respects. That is, they have
not, however, raise any contention of waiver for failure of the
appellants to properly object under Rule 30(d). More
importantly, we discern no error in the court’s refusal of the
three instructions at issue.
48
not shown (1) that their proposals were not substantially
covered by the court’s jury charge, or (2) that their proposals
dealt with points so important that the court’s failure to give
them seriously impaired the appellants’ ability to conduct their
defenses. The court’s First Amendment instruction substantially
covered the appellants’ right to freely exercise and express
their religious beliefs, echoing proposed instruction 37.
Proposals 40 and 45, encompassing the First Amendment
protections extended to speech advocating violence, are of no
import in this case. Put simply, the appellants were not
prosecuted for inciting violence, cf., e.g., Stewart, 590 F.3d
at 115, nor would the instructions have permitted any
convictions on that ground. Accordingly, the court did not
abuse its discretion by declining to give — in haec verba —
proposed instruction 37, 40, or 45. 19
19
Additionally, Hassan raises the trial court’s failure to
instruct on the Second Amendment insofar as it “protects an
individual right to possess a firearm unconnected with service
in a militia, and to use that [weapon] for traditionally lawful
purposes, such as self-defense within the home.” See J.A. 463
(further specifying that mere possession of a firearm “does not
in and of itself make a defendant guilty of a crime”). Notably,
Hassan was neither charged with nor convicted of any offense
involving his possession of a firearm, and he cannot show that
the lack of a Second Amendment instruction prejudiced his
defense.
49
B.
We turn now to the various evidentiary issues presented by
the appellants. First, they assert that the trial court erred
in admitting the opinion evidence of Evan Kohlmann, the
government’s expert witness. Next, Hassan and Yaghi maintain
that the admission of their Facebook pages and certain videos
was erroneous. Hassan and Yaghi also challenge selected
evidence against them as being inadmissible lay opinion and
improper hearsay. Finally, Yaghi contends that the court erred
in admitting evidence that the prosecution obtained improperly
pursuant to FISA court orders.
We assess challenges to a trial court’s evidentiary rulings
for abuse of discretion. See United States v. Hornsby, 666 F.3d
296, 307 (4th Cir. 2012). In reviewing an evidentiary ruling
under that standard, “we will only overturn [a] ruling that is
arbitrary and irrational.” United States v. Cole, 631 F.3d 146,
153 (4th Cir. 2011) (internal quotation marks omitted). With
those principles in mind, we address the various evidentiary
challenges.
1.
The appellants first contend that the expert testimony of
Evan Kohlmann was inadmissible under Federal Rule of Evidence
702 because it was irrelevant and failed to satisfy the
foundational requirements established by the Supreme Court in
50
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). The appellants also maintain that, even if Kohlmann’s
evidence was admissible under Rule 702, it was yet inadmissible
under Rule 403 because its probative value was outweighed by the
potential for unfair prejudice.
a.
As the Supreme Court has explained, Rule 702 “imposes a
special obligation upon a trial judge to ensure that any and all
scientific testimony is not only relevant, but reliable.” Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (internal
quotation marks omitted). 20 In Daubert, the Court identified
five factors for use in evaluating the reliability of proposed
expert testimony:
(1) whether the particular scientific theory “can be
(and has been) tested”; (2) whether the theory “has
been subjected to peer review and publication”; (3)
20
Pursuant to Rule 702, “[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise” if the
following requirements are satisfied:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts
or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has
reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
51
the “known or potential rate of error”; (4) the
“existence and maintenance of standards controlling
the technique’s operation”; and (5) whether the
technique has achieved “general acceptance” in the
relevant scientific or expert community.
See United States v. Crisp, 324 F.3d 261, 265-66 (4th Cir. 2003)
(quoting Daubert, 509 U.S. at 593-94). The Daubert test is
flexible; “[r]ather than providing a definitive or exhaustive
list, Daubert merely illustrates the types of factors that will
bear on the inquiry.” Id. at 266.
On April 30, 2010, the government alerted the appellants
that it intended to call Kohlmann as an expert witness with
respect to various aspects of Islamic extremism. Specifically,
it was anticipated that Kohlmann would testify about the
“meaning and context of various words and phrases used by the
defendants which are commonly used by persons practicing extreme
Islam”; the “structure and leadership of groups adhering to the
principles of Islamic extremism”; and the “manner and means
employed by extremist Islamic groups to recruit individuals and
the process of radicalization which occurs within such groups.”
J.A. 204-07. The appellants sought to bar Kohlmann’s testimony,
asserting, inter alia, that the prosecution was unable to
satisfy the Daubert test.
The trial court — after conducting a Daubert evidentiary
hearing and allowing ample opportunity for cross-examination of
Kohlmann — denied the pretrial exclusion motion by written
52
opinion. See United States v. Boyd, No. 5:09-cr-00216 (E.D.N.C.
Sept. 16, 2011), ECF No. 1443 (the “Daubert Opinion”). The
court therein determined that Kohlmann’s proposed testimony was
both reliable and relevant, thus satisfying Rule 702’s
requirements. To its credit, the court did not rule broadly
that all of Kohlmann’s potential testimony was relevant. The
court instead made clear that it would not “allow testimony on
all of the information included in Kohlmann’s very lengthy
expert reports,” id. at 6, explaining that “the government is on
notice that only expert testimony relevant to the case is
admissible and it should tailor its examination of Kohlmann
accordingly,” id. at 11. The trial court also noted that
questions about Kohlmann’s credentials and opinions were “ideal
fodder for vigorous cross examination.” Id. at 8.
The trial court did not abuse its discretion in deciding
that Kohlmann’s proposed evidence satisfied Rule 702. The court
heard and considered testimony about Kohlmann’s credentials and
techniques and was convinced that he possessed “the requisite
knowledge, skill, experience, training, and education to testify
on various aspects of the trend of decentralized terrorism and
homegrown terrorism.” Daubert Opinion 7. In so ruling, the
court gave particular attention to the Daubert factors,
including thorough assessments of whether Kohlmann’s methods
were subject to peer review, his “consultation with others in
53
the field,” and “whether or not his research findings [were]
based in a sound methodology.” Id. at 9.
The trial court’s assessment of Kohlmann’s credentials
fulfilled its gatekeeping obligation under Daubert, and the
court did not err in deciding that Kohlmann’s testimony was
reliable as well as relevant to the issues to be presented.
Notably, we have previously approved of Kohlmann’s expertise in
terrorism matters, ruling that his testimony would “assist the
trier of fact to understand the evidence or to determine a fact
in issue.” See United States v. Benkahla, 530 F.3d 300, 309
(4th Cir. 2008) (internal quotation marks omitted). 21 There, the
trial evidence was also “complicated, touching by necessity on a
wide variety of ideas, terms, people, and organizations
connected to radical Islam.” Id. at 309. We thus ruled that
the trial court had not abused its discretion in deeming
“lengthy testimony about various aspects of radical Islam . . .
appropriate, and indeed necessary, for the jury to understand
the evidence and determine the facts.” Id. at 310 (internal
quotation marks and punctuation omitted). That reasoning
applies equally today, because the evidence in this case was
21
Our Benkahla analysis focused largely on the relevance of
Kohlmann’s testimony because, as Judge Wilkinson explained,
Kohlmann’s “qualifications were obviously substantial and the
district court acted well within its discretion in determining
that they were sufficient.” See Benkahla, 530 F.3d at 309 n.2.
54
similarly complex, involving the testimony of multiple
coconspirators and informants. The evidence in each case also
involved terminology and concepts that were likely to be
unfamiliar to jurors. In such settings, the relevance of expert
testimony is quite evident.
b.
The appellants also challenge the trial court’s failure to
exclude Kohlmann’s testimony under Rule 403, maintaining that
its probative value was substantially outweighed by the risk of
unfair prejudice. 22 We apply a “highly deferential” standard of
review to such an issue, and a trial court’s “decision to admit
evidence over a Rule 403 objection will not be overturned except
under the most extraordinary circumstances, where that
discretion has been plainly abused.” United States v. Udeozor,
515 F.3d 260, 265 (4th Cir. 2008) (internal quotation marks
omitted). We have emphasized that relevant evidence should only
be excluded under Rule 403 “when there is a genuine risk that
the emotions of a jury will be excited to irrational behavior,
and this risk is disproportionate to the probative value of the
22
Pursuant to Rule 403, a trial court “may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, [or]
misleading the jury.”
55
offered evidence.” United States v. Siegel, 536 F.3d 306, 319
(4th Cir. 2008).
Here, the district court carefully balanced — both before
and during trial — the relevance of Kohlmann’s testimony against
the potential prejudice arising therefrom. Although linking the
appellants to extremist jihadist groups was undoubtedly
prejudicial, it was not unfairly so. Indeed, the charges that
were lodged against the appellants meant that the prosecution
would necessarily seek to establish that link. See Benkahla,
530 F.3d at 310 (rejecting Rule 403 challenge to Kohlmann’s
testimony, despite potential prejudice, where relevance could
not be doubted and trial judge could decide that probative value
outweighed any prejudicial risk); United States v. Williams, 445
F.3d 724, 730 (4th Cir. 2006) (explaining that, though
prejudicial, “as is all evidence tending to show a defendant’s
guilt,” the challenged evidence was nevertheless admissible
because the risk of unfair prejudice did not “substantially
outweigh the probative value of the evidence” (emphasis added)).
In these circumstances, the court did not abuse its discretion
in overruling the appellants’ Rule 403 objections. 23
23
The appellants also assert that Kohlmann’s testimony was
irrelevant under Rules 401 and 402 because “[c]riminal behavior
must be judged by the conduct of individual defendants applied
to the particularized elements of the pertinent criminal
statute, not the characteristics of any class of defendants ‘as
(Continued)
56
2.
Next, Hassan and Yaghi contend that several prosecution
exhibits consisting of Facebook pages and the files embedded
therein — including videos hosted on YouTube (and maintained by
Google) — were not properly authenticated. Hassan also
challenges, on hearsay and other grounds, two videos used
against him by the prosecutors. First, he maintains that the
court erred in admitting a physical training video that he had
posted on a website called RossTraining.com. Second, Hassan
claims that a video seized from his cell phone by the FBI was
also erroneously admitted.
a.
The trial court ruled that the Facebook pages and YouTube
videos were self-authenticating under Federal Rule of Evidence
902(11), and thus that they were admissible as business records.
That the Facebook pages and YouTube videos were self-
authenticating business records was not, however, the end of the
trial court’s inquiry. The court also required the government,
pursuant to Rule 901, to prove that the Facebook pages were
linked to Hassan and Yaghi.
a whole.’” Br. of Appellant Sherifi 16. To the extent that
assertion constitutes a distinct relevancy challenge to
Kohlmann’s testimony, it is rejected.
57
Rule 902(11) authorizes the admission in evidence of
records that satisfy the requirements of Rule 803(6)(A)-(C), “as
shown by a certification of the custodian . . . that complies
with a federal statute or a rule prescribed by the Supreme
Court.” Rule 803(6), in turn, provides that business records
are admissible if they are accompanied by a certification of
their custodian or other qualified person that satisfies three
requirements: (A) that the records were “made at or near the
time by — or from information transmitted by — someone with
knowledge”; (B) that they were “kept in the course of a
regularly conducted activity of a business”; and (C) that
“making the record was a regular practice of that activity.” 24
Turning to Rule 901, subdivision (a) thereof provides that, to
“establish that evidence is authentic, the proponent need only
present ‘evidence sufficient to support a finding that the
matter in question is what the proponent claims.’” See United
States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009) (quoting
Fed. R. Evid. 901(a)). Importantly, “the burden to authenticate
under Rule 901 is not high — only a prima facie showing is
24
The current version of Rule 803(6), quoted above, was
effective as of on December 1, 2011, several months after
completion of the trial. The amendments to Rule 803 were not
substantive, however, but were part of a restyling of the Rules
of Evidence to make them more readily understandable and
consistent.
58
required,” and a “district court’s role is to serve as
gatekeeper in assessing whether the proponent has offered a
satisfactory foundation from which the jury could reasonably
find that the evidence is authentic.” Id.
Hassan’s and Yaghi’s Facebook pages were captured via
“screenshots,” taken at various points in time and displaying
Hassan’s and Yaghi’s user profiles and postings. The
screenshots of the Facebook pages also included photos and links
to the YouTube videos. On the Facebook pages, Hassan and Yaghi
had posted their personal biographical information, as well as
quotations and listings of their interests. Each Facebook page
also contained a section for postings from other users, on what
is called a “wall.” Meanwhile, the videos in question were
retrieved from Google’s server. In establishing the
admissibility of those exhibits, the government presented the
certifications of records custodians of Facebook and Google,
verifying that the Facebook pages and YouTube videos had been
maintained as business records in the course of regularly
conducted business activities. According to those
certifications, Facebook and Google create and retain such pages
59
and videos when (or soon after) their users post them through
use of the Facebook or Google servers. 25
After evaluating those submissions, the trial court ruled
that the requirements of Rule 902(11) had been satisfied. The
court then determined that the prosecution had satisfied its
burden under Rule 901(a) by tracking the Facebook pages and
Facebook accounts to Hassan’s and Yaghi’s mailing and email
addresses via internet protocol addresses. In these
circumstances, there was no abuse of discretion in the
admissions of any of the Facebook pages and YouTube videos.
b.
Turning to the physical training video uploaded by Hassan
to RossTraining.com, Hassan maintains that the trial court’s
refusal to admit his own related postings contravened the
evidentiary “rule of completeness.” The rule of completeness
has its origins at common law, and is codified in Rule 106 of
the Federal Rules of Evidence. Pursuant thereto, “[w]hen a
writing or recorded statement or part thereof is introduced by a
25
The appellants’ contention that the Facebook and Google
certifications are insufficient because they were made for
litigation purposes several years after the postings occurred is
entirely unpersuasive. It would make no sense to require a
records custodian to contemporaneously execute an affidavit
attesting to the accuracy of a business record each time one is
created or maintained, when there is no pending litigation or
need for such a certification.
60
party, an adverse party may require the introduction at that
time of any other part or any other writing or recorded
statement which ought in fairness to be considered
contemporaneously with it.” United States v. Moussaoui, 382
F.3d 453, 481 (4th Cir. 2004) (internal quotation marks
omitted). As we have explained, a trial court, in applying the
rule of completeness, may allow into the record “relevant
portions of [otherwise] excluded testimony which clarify or
explain the part already received,” in order to “prevent a party
from misleading the jury” by failing to introduce the entirety
of the statement or document. See United States v. Bollin, 264
F.3d 391, 414 (4th Cir. 2001). Nevertheless, the rule of
completeness does not “render admissible . . . evidence which is
otherwise inadmissible under the hearsay rules.” United States
v. Lentz, 524 F.3d 501, 526 (4th Cir. 2008) (internal quotation
marks omitted). Nor does the rule of completeness “require the
admission of self-serving, exculpatory statements made by a
party which are being sought for admission by that same party.”
Id.
The physical training video posted by Hassan on
RossTraining.com depicted Hassan in a series of physical
training workouts. It opened with a series of quotations on the
video screen, such as “[t]here is no God but ALLAH and Muhammad
is his Messenger,” the “strong Muslim is better than the weak
61
Muslim,” and “[l]et’s please ALLAH and train hard.” Trial Ex.
399; J.A. Vol. XIV. The training video concluded with the words
“support our troops,” which appeared on the screen above an
Arabic phrase and an image of an assault rifle. Id. After
Hassan had uploaded the training video to RossTraining.com,
other users of the website posted various comments and
questions, some of which were critical of Hassan. Hassan
responded to them with postings of his own, including an apology
for any controversy his training video had caused. Hassan then
posted additional statements about his beliefs and his support
of those troops fighting “for the truth.” J.A. 2377. In one of
those subsequent postings, Hassan said that he “do[es] not
support terrorists.” Id. 26 Hassan’s defense lawyer thus sought
to introduce into evidence — under the rule of completeness —
26
Hassan’s assertion that he “do[es] not support
terrorists” was part of a lengthier statement:
The troops I support are the ones who fight for truth,
whether he is Arab, American, Spanish, Europe,
whatever, it doesn’t matter as long as he fights for
the truth. PS, I do not support terrorists.
J.A. 2377. In posting his apology, Hassan asserted:
Islam is a religion of peace but when attacked we
fight back strong. I will edit the video but will
probably keep my religious beliefs . . . because part
of my religious faith is to become strong and in
healthy shape.
Id. at 2377-78.
62
the follow-up statements posted by Hassan. The court, however,
sustained the hearsay objection interposed by the prosecution
and excluded those statements.
Hassan’s excluded statements, though possibly exculpatory,
do not fall within any hearsay exception that would authorize
their admission into evidence. Nor was the jury likely to have
been confused or misled by their exclusion. The court simply
ruled that Hassan’s follow-up postings on RossTraining.com could
not be used to establish the truth of any matter asserted —
specifically, to show that Hassan did not support terrorists.
That ruling was not an abuse of the court’s discretion.
c.
Hassan next challenges the prosecution’s use against him of
the video that the authorities had seized from his personal cell
phone. The cell phone video showed Hassan firing a rifle at an
outdoor location near the Islamic Center in Raleigh. Hassan
maintains that the cell phone video was irrelevant to the
prosecution’s case because it was not created until early 2009,
two years after he stopped having regular contact with Boyd.
Hassan also contends that, even if relevant, the cell phone
video was unduly prejudicial under Rule 403, because it shows
Hassan using a firearm and thereby could have caused the jury to
improperly associate Hassan with Boyd’s weapons arsenal.
63
Because the cell phone video was relevant to Hassan’s
weapons training with Yaghi, it was also relevant to whether
Hassan was yet involved — even in 2009 — in the ongoing Count
One conspiracy. As for Hassan’s claim of prejudice, “[t]he mere
fact that the evidence will damage the defendant’s case is not
enough — the evidence must be unfairly prejudicial, and the
unfair prejudice must substantially outweigh the probative value
of the evidence.” See Williams, 445 F.3d at 730. Put simply,
the cell phone video of Hassan firing a rifle did not present a
sufficient “danger of unfair prejudice” to warrant its exclusion
under Rule 403. Indeed, at least one government witness
admitted that there was no reason to believe that Hassan’s mere
possession or firing of the rifle was illegal. Moreover, there
was no suggestion that Hassan or Yaghi had participated in the
weapons training sessions of 2009 or in the creation and
preservation of Boyd’s weapons arsenal. In these circumstances,
the trial court did not err in its ruling with respect to
Hassan’s cell phone video.
3.
Hassan and Yaghi next contend that three witnesses gave
improper lay opinion evidence when they testified to their
understandings of what Hassan and Yaghi meant by certain
statements or on particular occasions. The following are
challenged as erroneously admitted: (1) Boyd’s understanding of
64
what Hassan and Yaghi meant in statements to Boyd during face-
to-face conversations and in email exchanges; (2) Dylan Boyd’s
understanding of why Hassan and Yaghi wanted to accompany the
Boyds on their 2007 trip to the Middle East; and (3) Jamar
Carter’s testimony regarding his understanding of Yaghi’s use of
the phrase “jihad.”
Pursuant to Federal Rule of Evidence 701, a lay witness may
testify to opinions when such evidence is “(a) rationally based
on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact
in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Rule 701
thus “allows testimony based on the person’s reasoning and
opinions about witnessed events.” United States v. Offill, 666
F.3d 168, 177 (4th Cir. 2011). Lay witnesses are not entitled
to opine broadly or generally; rather, “lay opinion testimony
must be based on personal knowledge.” United States v. Johnson,
617 F.3d 286, 292 (4th Cir. 2010). In contrast to Rule 702,
which governs expert testimony, Rule 701 “permits lay testimony
relating to a defendant’s hypothetical mental state.” Offill,
666 F.3d at 177. Applying those principles, we have ruled that
testimony regarding a witness’s understanding of what the
defendant meant by certain statements is permissible lay
testimony, so long as the witness’s understanding is predicated
65
on his knowledge and participation in the conversation. See,
e.g., United States v. Min, 704 F.3d 314, 325 (4th Cir. 2013);
Offill, 666 F.3d at 177-78.
Having evaluated the trial court’s admission of the
challenged lay opinion testimony, we are satisfied that none of
its rulings constituted an abuse of discretion. In each
instance, the lay testimony stemmed directly from the witness’s
conversations with Hassan and Yaghi, and was therefore based on
that witness’s perceptions. Furthermore, the testimony clearly
assisted the jury in understanding the appellants’ conversations
and statements. Lay opinion testimony is particularly useful
when, as here, the terms and concepts being discussed, such as
“kuffar,” “best brothers,” finding “the battlefield,” and
“shahid,” are likely to be unfamiliar to the jury. In
particular, the government introduced a substantial amount of
evidence relating to the coded and convoluted communications
between the conspirators. In such circumstances, the witnesses
were entitled, under Rule 701, to explain their understandings
and impressions of Hassan’s and Yaghi’s statements and actions.
As a result, the court’s rulings with respect to the lay
evidence were not an abuse of its discretion.
4.
Hassan and Yaghi next maintain that certain evidence
admitted by the trial court constituted inadmissible hearsay.
66
Rule 801 of the Federal Rules of Evidence defines hearsay as any
statement that a “declarant does not make while testifying at
the current trial,” and that is offered “in evidence to prove
the truth of the matter asserted in the statement.”
First, Hassan contends that Boyd’s testimony regarding a
conversation between Boyd and a shared acquaintance (the “mutual
contact”) of Hassan’s father and Boyd constituted multi-level
hearsay. Boyd explained that the “mutual contact” advised him
that Hassan’s father “believed both [Hassan and Yaghi] had
travelled with [Boyd] to . . . try to get to a battlefield.”
J.A. 1760 (emphasis added). Hassan maintains that this
statement was admitted to establish that he had, in fact,
travelled with Boyd to the Middle East with the hope and
intention of making it to the battlefield. The government
contends to the contrary: that such testimony was not admitted
for the truth of the matter asserted, but simply to establish
Boyd’s understanding of why Hassan’s father was angry with Boyd,
thus providing context for a phone call between the two men.
Boyd’s testimony about his phone conversation with Hassan’s
father was not inadmissible hearsay. Assessed in the context of
the other evidence, the prosecution elicited the testimony in
order to show the basis for Boyd’s belief that Hassan’s father
was angry with Boyd. As the prosecution demonstrated, Boyd’s
interactions with the elder Hassan, as well as Boyd’s
67
understanding of rumors in the Raleigh Islamic community about
the travel of Hassan and Yaghi to the Middle East in 2007, were
relevant at trial, in that they offered a plausible explanation
for the cessation of Boyd’s relationship with Hassan and Yaghi.
Second, turning to a specific hearsay challenge interposed
by Yaghi, he maintains that a police detective’s testimony that
law enforcement began to investigate Yaghi in 2006 after
“receiv[ing] information from the Muslim community that [he] was
traveling to Jordan . . . with the intent to participate in
jihad in Iraq,” J.A. 2256, constituted inadmissible hearsay. As
with Boyd’s testimony about the elder Hassan, the prosecution
contends that the detective’s testimony was simply used as
relevant background, and to explain the origins of the Yaghi
investigation. Because Yaghi did not object at trial to the
detective’s testimony concerning the origins of the
investigation, we review Yaghi’s hearsay challenge solely for
plain error. See United States v. Smith, 441 F.3d 254, 262 (4th
Cir. 2006).
Under plain error review, an appellate court may only
correct an error when: “(1) there is an error; (2) the error is
plain; (3) the error affects substantial rights; and (4) the
court determines, after examining the particulars of the case,
that the error ‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” United States v.
68
Williamson, 706 F.3d 405, 411 (4th Cir. 2013) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). The plain error
standard is thus a high bar that is difficult to clear. To
establish that an error affected his substantial rights, an
appellant must demonstrate that “the error actually affected the
outcome of the proceedings.” Id. (internal quotation marks
omitted). Even if the first three prongs of plain error review
have been satisfied, an appellant must convince the reviewing
court that the error “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.”
Olano, 507 U.S. at 732.
Put simply, the trial court did not plainly err in
admitting the detective’s testimony. In context, his statement
concerning the inception of the Yaghi investigation was
presented as background to explain how the law enforcement
officer became involved in the case. The detective’s statement
also supports the inference, however, that some members of the
Muslim community of Raleigh believed that Yaghi had travelled
abroad with the hope of engaging in jihad, and that some in the
law enforcement community likewise thought that Yaghi had done
so. Nevertheless, the government introduced a vast amount of
other trial evidence to that effect. Thus, even if the
detective’s statements would have been subject to a hearsay
69
objection, the court’s admission thereof would not satisfy
either of the final two prongs of plain error review.
5.
On July 27, 2009, well before trial, the government gave
notice that it intended to use evidence it had collected
pursuant to FISA. The appellants moved to suppress the FISA
evidence, or, alternatively, for disclosure of the FISA
materials. 27 The district court, after an in camera and ex parte
review of the FISA materials, denied the appellants’ motion and
explained its reasoning. See United States v. Boyd, No. 5:09-
cr-00216 (E.D.N.C. June 22, 2011), ECF No. 1174 (the “FISA
Opinion”). Yaghi challenges the rulings embodied in the FISA
Opinion, asserting that the electronic surveillance orders were
not supported by probable cause because, when the orders were
issued in June 2007, there was no evidence that Yaghi was an
agent of a foreign power, as required by FISA. Yaghi seeks
disclosure of the FISA materials to support his contentions or,
in the alternative, asks that we review those materials de novo
to assess whether probable cause existed.
27
The FISA applications, as well as the electronic
surveillance orders issued by the FISA Court and any returns
filed in connection with them, are collectively referred to as
the “FISA materials.”
70
FISA established a detailed framework whereby the executive
branch “could conduct electronic surveillance for foreign
intelligence purposes without violating the rights of citizens.”
United States v. Hammoud, 381 F.3d 316, 332 (4th Cir. 2004) (en
banc), vacated on other grounds, 543 U.S. 1097 (2005). Subject
to certain exceptions not relevant here, “electronic
surveillance of a foreign power or its agents may not be
conducted unless the FISA Court authorizes it in advance,” and
“[e]ach application to the FISA Court must first be personally
approved by the Attorney General.” United States v.
Squillacote, 221 F.3d 542, 553 (4th Cir. 2000) (internal
quotation marks omitted). Where, as here, the target of
electronic surveillance is a “United States person,” the FISA
Court
may issue an order authorizing the surveillance only
if the FISA judge concludes that there is probable
cause to believe that the target of the surveillance
is a foreign power or agent of a foreign power, that
proposed minimization procedures are sufficient under
the terms of the statute, that the certifications
required by [50 U.S.C.] § 1804 have been made, and
that the certifications are not clearly erroneous.
Id. (internal quotation marks omitted). 28
28
The FISA provisions, in pertinent part, define a “United
States person” as “a citizen of the United States, [or] an alien
lawfully admitted for permanent residence.” 50 U.S.C.
§ 1801(i). Yaghi, as a naturalized citizen of this country, is
a United States person.
71
FISA identifies several requirements for the government’s
use of information obtained pursuant to a FISA order, as well as
the essential procedures for challenging a prosecutor’s use of
such information. See 50 U.S.C. § 1806. Under those
procedures, a defendant may move to suppress evidence that was
“obtained or derived from such electronic surveillance,” where
the information was “unlawfully acquired” or “the surveillance
was not made in conformity with an order of authorization or
approval” under FISA. Id. § 1806(e). When faced with such a
suppression motion, “if the Attorney General files an affidavit
under oath that disclosure or an adversary hearing would harm
the national security of the United States,” id. § 1806(f), “the
district court must review in camera and ex parte the FISA
application and other materials necessary to rule,” Squillacote,
221 F.3d at 553.
FISA provides that a district court may only divulge
“portions of the application, order, or other materials relating
to the surveillance . . . where such disclosure is necessary to
make an accurate determination of the legality of the
surveillance.” 50 U.S.C. § 1806(f); see United States v. Rosen,
447 F. Supp. 2d 538, 546 (E.D. Va. 2006). We have emphasized
that, where the documents “submitted by the government [are]
sufficient” to “determine the legality of the surveillance,” the
72
FISA materials should not be disclosed. Squillacote, 221 F.3d
at 554.
Because the Attorney General filed an appropriate affidavit
in this case, in response to the appellants’ motion to suppress,
the district court conducted an in camera and ex parte review of
the FISA materials and determined that there was probable cause
to support the FISA orders. The court then articulated and
correctly applied the principles established by FISA and our
precedent, reviewing the FISA materials “de novo with no
deference accorded to the . . . probable cause determinations,
but with a presumption of validity accorded to the
certifications.” FISA Opinion 15. Moreover, as the court
recognized, because the statutory application was properly made
and approved by a FISA judge, it carried a strong presumption of
veracity and regularity. Id. at 14-15; see United States v.
Pelton, 835 F.2d 1067, 1076 (4th Cir. 1987).
We have conducted an independent review of the FISA
materials and likewise conclude that the FISA applications
demonstrated probable cause to believe that Yaghi was an agent
of a foreign power when the FISA orders were issued. Having
conducted that review, we are satisfied that the materials
submitted to the court by the government were sufficient to show
73
that the FISA surveillance was proper. We therefore decline to
order any further disclosure of the FISA materials. 29
C.
Having resolved the appellants’ evidentiary challenges that
bear on admissibility, we turn to their principal contention on
appeal: that the evidence was insufficient to support their
various convictions. At the close of the prosecution’s case-in-
chief, at the conclusion of the trial evidence, and after the
jury’s return of its verdicts, the appellants challenged the
sufficiency of the evidence. The district court ruled that each
of their challenges was without merit, as articulated in the
court’s opinions of October 10 and December 1, 2011. See
Sufficiency Opinion I; United States v. Boyd, No. 5:09-cr-00216
(E.D.N.C. Dec. 1, 2011), ECF No. 1558 (“Sufficiency Opinion
II”).
29
We have heretofore reviewed de novo a district court’s
determination that a FISA application established probable
cause. Squillacote, 221 F.3d at 554; Hammoud, 381 F.3d at 331.
Some of our sister circuits, however, have utilized a more
deferential standard of review. See, e.g., United States v. El-
Mezain, 664 F.3d 467, 567 (5th Cir. 2011) (conducting
“independent in camera review” and applying abuse of discretion
standard); United States v. Abu-Jihaad, 630 F.3d 102, 130 (2d
Cir. 2010) (explaining that “FISA warrant applications are
subject to minimal scrutiny by the courts, both upon initial
presentation and subsequent challenge” (internal quotation marks
omitted)). We are satisfied that probable cause existed in this
case under any of these standards.
74
We review de novo a trial court’s denial of a motion for
judgment of acquittal. See United States v. Osborne, 514 F.3d
377, 385 (4th Cir. 2008). Applying that standard, it is well
settled that “[t]he verdict of a jury must be sustained if there
is substantial evidence, taking the view most favorable to the
[g]overnment, to support it.” Glasser v. United States, 315
U.S. 60, 80 (1942). As we have explained, “substantial
evidence” is that which “a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” United States v.
Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal
quotation marks omitted). We examine “circumstantial as well as
direct evidence,” and remain mindful that “a conviction may rely
entirely on circumstantial evidence.” United States v. Bonner,
648 F.3d 209, 213 (4th Cir. 2011). In so doing, we accord
deference to “the jury’s resolution of all evidentiary conflicts
and credibility determinations.” Id. Simply put, “[a]
defendant challenging the sufficiency of the evidence faces a
heavy burden.” Id. (internal quotation marks omitted).
After our independent and de novo review of the voluminous
trial record, we are satisfied that the evidence presented was
sufficient to sustain the appellants’ various convictions. The
evidence, though largely circumstantial, was nevertheless
substantial. That evidence readily supports the determination
75
that a rational finder of fact could (and in fact did) deem the
evidence adequate to support each conviction beyond a reasonable
doubt.
1.
We turn first to Yaghi, who challenges the sufficiency of
the evidence on the Count One and Count Two conspiracies,
maintaining in particular that none of the evidence supports an
inference that he agreed to participate therein. Yaghi
emphasizes that Boyd and his sons denied under oath entering
into any agreements with him, and he argues that it was not
otherwise proved that he had entered into even a tacit
conspiratorial agreement.
To convict Yaghi on Count One, the government was obliged
to prove: (1) that he entered into a conspiracy; (2) that the
objective thereof was to provide material support or resources;
and (3) that he then knew and intended that such support or
resources would be used in preparation for, or in carrying out,
a separate conspiracy to murder, kidnap, or maim outside of the
United States. See 18 U.S.C. § 2339A; United States v. Chandia,
514 F.3d 365, 372 (4th Cir. 2008). 30 With respect to the first
30
Although the Indictment alleged a series of overt acts in
furtherance of the Count One conspiracy, proof of the commission
of an overt act in a § 2339A conspiracy is not required by
statute. See 18 U.S.C. § 2339A; see also Stewart, 590 F.3d at
114-16 (setting out elements of § 2339A without including overt
(Continued)
76
element, the government was obliged to prove a conspiracy — that
is, an agreement between two or more persons to engage in
illegal activity. See United States v. Burgos, 94 F.3d 849,
857-58 (4th Cir. 1996) (en banc). 31 Yaghi’s involvement in such
a conspiracy was adequately demonstrated if the evidence showed
“a slight connection between [him] and the conspiracy.” United
States v. Kellam, 568 F.3d 125, 139 (4th Cir. 2009) (internal
quotation marks omitted). 32 Furthermore, the “existence of a
tacit or mutual understanding is sufficient to establish a
act requirement); cf. supra note 2 (observing that appellants
asserted at trial that overt act was not required). The Count
Two conspiracy, by contrast, requires proof that at least one
overt act in furtherance thereof was committed within the United
States. See 18 U.S.C. § 956(a)(1).
31
The trial court instructed the jury on the law of
conspiracy, explaining that
[i]f a defendant understands the unlawful nature of a
plan or scheme and knowingly and intentionally joins
in that plan or scheme on one occasion, that is
sufficient to convict him for conspiracy, even though
the defendant hadn’t participated before and even
though the defendant played only a minor part.
J.A. 3573-74. The court also instructed that the prosecution
had no obligation to “prove that a conspiracy has a discrete,
identifiable organization structure.” Id. at 3573.
32
The conspiracy instructions emphasized that a defendant
can be a coconspirator “without knowing [the conspiracy’s] full
scope or all of its members, and without taking part in the full
range of its activities.” J.A. 3573. Moreover, the trial court
advised the jury that “[o]nce a defendant willfully joins in a
conspiracy,” he “is presumed to continue in that conspiracy
unless and until he takes affirmative steps to withdraw.” Id.
at 3574.
77
conspiratorial agreement, and proof of such an agreement need
not be direct — it may be inferred from circumstantial
evidence.” Id. (internal quotation marks omitted). 33
On the second element of the Count One conspiracy,
“material support or resources” is defined as “any property,
tangible or intangible, or service,” including “currency,”
“training,” “expert advice or assistance,” “weapons,” or
“personnel.” 18 U.S.C. § 2339A(b)(1). 34 The third element
required the government to establish that Yaghi acted “with the
knowledge or intent” that such material support or resources
would be used to commit a specific violent crime, in this
instance a violation of 18 U.S.C. § 956. See Stewart, 590 F.3d
at 113.
Turning to the Count Two conspiracy, the government was
obliged to show that: (1) Yaghi entered into a conspiracy; (2)
knowing and intending that the objective thereof was murder,
33
The court explained to the jury that a conspiracy “may be
proved wholly by circumstantial evidence,” J.A. 3572, which can
consist of “a defendant’s relationship” with other conspirators
and “the length of this association,” as well as “the
defendant’s attitude and conduct, and the nature of the
conspiracy,” id. at 3573.
34
The court further defined “training” as “instruction or
teaching designed to impart a specific skill as opposed to
general knowledge,” J.A. 3574-75, and defined “personnel” as
“one or more persons, which can include a defendant’s own
person,” id. at 3575.
78
kidnapping, or maiming outside the United States; (3) the
conspiracy was entered into within the United States; and (4) a
conspirator committed an overt act in furtherance thereof within
the jurisdiction of the United States. See 18 U.S.C. § 956(a);
United States v. Wharton, 320 F.3d 526, 538 (5th Cir. 2003).
After our de novo assessment of the evidentiary record, we,
like the trial court, are satisfied that there was sufficient
evidence to support each of Yaghi’s conspiracy convictions.
That evidence includes the following:
• In 2006, Yaghi sought out Boyd at an Islamic
center in Durham to ask about Boyd’s experiences
in Afghanistan. Yaghi and Boyd became friends,
and Yaghi shared Boyd’s beliefs in the necessity
of violent jihad;
• In the fall of 2006, Yaghi travelled to Jordan,
seeking to reach the battlefield. Yaghi
maintained contact with Boyd during the trip;
• Prior to and during his 2006 trip to Jordan,
Yaghi discussed violent jihad with Boyd. Before
his departure, Yaghi asked Boyd how and where he
could find the “best brothers,” and mentioned
“finding a wife.” Those terms were coded
references for seeking others who shared Yaghi’s
beliefs in violent jihad and could help Yaghi
make his way to the battlefield;
• After returning from his 2006 trip to Jordan,
Yaghi brought Hassan to Boyd’s home, thus
recruiting another man to the terrorism
conspiracies;
• Yaghi thereafter again sought Boyd’s assistance
in travelling to the Middle East, and Boyd
purchased plane tickets for Yaghi and Hassan to
fly to Israel in the summer of 2007;
79
• In 2007, as he prepared to travel to the Middle
East with Hassan, Yaghi indicated a “readiness to
join” Boyd in waging violent jihad;
• Yaghi flew to the Middle East with Hassan in 2007
with the hope of engaging in violent jihad.
Yaghi and Hassan were denied entry into Israel
and were unable to reach the battlefield. The
men thereafter returned to the United States;
• Yaghi and Hassan made unsuccessful efforts to
contact Boyd while they were in the Middle East
in 2007;
• Yaghi facilitated an introduction between Boyd
and defendant Jude Kenan Mohammad in 2008.
Coupled with Mohammad’s subsequent departure for
Pakistan and his “insistence” on finding “a way
to the battlefield,” this evidence shows that
Yaghi recruited Mohammad into both conspiracies.
See Sufficiency Opinion I at 17; 35
• Yaghi posted messages on Facebook promoting his
radical and violent jihadist beliefs. Those
postings continued after Yaghi’s contacts with
Boyd diminished, justifying the jury’s finding
that Yaghi and Hassan — independent of Boyd —
continued to engage in initiatives in furtherance
of the conspiracies; and
• In late 2007, Yaghi made a speech to an Islamic
group in Raleigh, advocating that its members
consider violent jihad. From such statements,
and from Yaghi’s efforts to convert others to his
beliefs in violent jihad, the jury was entitled
to find Yaghi’s continuing participation in the
conspiracies.
35
In referencing the opinions of the district court on the
sufficiency issues, we do not accord any deference to the
court’s analysis; we quote those opinions only where we agree
that they are supported by the record.
80
The trial evidence fully supports the jury’s finding that
Yaghi believed in violent jihad and acted on those beliefs in
concert with coconspirators. Yaghi understood and acquiesced in
the objectives of the Count One and Count Two conspiracies,
i.e., providing material support and resources for, and
committing acts of murder outside the United States. Moreover,
numerous overt acts were undertaken in furtherance of each
conspiracy, including Yaghi’s 2007 trip to the Middle East and
his efforts to recruit others into the conspiracies. The
verdict against Yaghi must therefore be sustained.
2.
Sherifi challenges each of his five convictions,
maintaining that, at best, the trial evidence reflected only his
religious and political beliefs, and perhaps his approval of the
misdeeds of others. In addition to proving that Sherifi’s
conduct fulfilled the elements of the Counts One and Two
conspiracies, the government was required to satisfy the
elements of the other charges lodged against Sherifi. With
respect to Sherifi’s fifth offense of conviction, the Count
Eleven conspiracy, the government was obliged to show that
Sherifi entered into a conspiracy to kill federal employees
engaged in the performance of their official duties, and a
conspirator committed an overt act in furtherance thereof. See
18 U.S.C. § 1117. As to Counts Four and Eight — the firearms
81
charges — the prosecution was required to “present evidence
indicating that the possession of a firearm furthered, advanced,
or helped forward a crime of violence.” United States v. Khan,
461 F.3d 477, 489 (4th Cir. 2006) (internal quotation marks
omitted). Count Four alleged that Sherifi possessed a firearm
on June 10, 2009, in furtherance of the Count Two conspiracy,
and Count Eight alleged that he possessed a firearm on July 7,
2009, also in furtherance of the Count Two conspiracy.
Substantial evidence supports each of Sherifi’s five
convictions, beginning with the following that relates to his
involvement in the Count One and Count Two conspiracies:
• In 2008, Sherifi grew close to Boyd, visiting in
Boyd’s home and spending time with Boyd’s family.
In discussions with Boyd, Sherifi confirmed his
adherence to the violent jihadist ideology he
shared with Boyd, plus the need to act in
accordance therewith;
• Sherifi openly advocated his disdain for the laws
and government of the United States, believing
Shari’ah to be the true law;
• In 2008, Sherifi travelled to Kosovo, advising
associates in Raleigh that he was going there to
be closer to the battlefield;
• Sherifi talked with Boyd and others in Raleigh
about his efforts to join violent jihadist
efforts abroad, as well as his attempts to
radicalize and recruit Sergeant Weeks;
• While in Kosovo, Sherifi participated in firearms
training with like-minded individuals. At one
point, Sherifi was in contact with persons who
82
were considering Camp Bondsteel — where Weeks was
stationed — as a target for jihad;
• Sherifi believed that jihad “was just murderous
acts against innocent soldiers and civilians”;
• After returning to the United States, Sherifi
assisted Boyd in preparing a bunker under Boyd’s
home to conceal Boyd’s weapons arsenal;
• Sherifi participated in Boyd’s efforts to raise
money to support violent jihadist causes, and
gave Boyd $500 in cash to that end; and
• While back in the United States, Sherifi made
efforts to raise funds to purchase “farmland in
Kosovo from which to launch off to the
battlefield” in Kosovo, Syria, and elsewhere.
See Sufficiency Opinion I at 21.
The foregoing evidence readily satisfies the elements of
the Count One and Count Two conspiracies as to Sherifi. Sherifi
wilfully partook in those conspiracies, and sought to provide
money and personnel to support violent jihadist causes, in this
country and abroad. Even more so than Yaghi and Hassan, Sherifi
advocated his extreme and violent beliefs to Boyd and other
members of the conspiracy, demonstrating his intention to act on
those beliefs. The evidentiary record shows that a multitude of
overt acts were committed in furtherance of the conspiracies,
including the weapons training sessions, the construction of
Boyd’s weapons bunker, travel abroad, and consistent efforts to
join violent jihadist battlefields. The verdict against Sherifi
on Counts One and Two must therefore be sustained.
83
The evidence supporting Sherifi’s conviction on the Count
Eleven conspiracy included the following:
• In June 2008, Sherifi expressed to Boyd his
willingness to wage violent jihad in the United
States if unable to do so abroad;
• While in Kosovo, Sherifi discussed the
possibility of targeting the American military
post at Camp Bondsteel for violent jihad;
• In 2009, Boyd shared his plans to attack the
Marine Corps Base at Quantico with Sherifi, who
readily agreed to participate;
• Sherifi told Boyd about his experiences
delivering goods to Fort Bragg, explaining how a
person could easily gain entry into an American
military facility as a truck driver; and
• Boyd proposed kidnapping a Marine officer and
took steps in connection with the Count Eleven
plot, including touring Quantico and conducting
research about the base.
As with the Count One and Count Two conspiracies, the
evidence of Sherifi’s agreement with Boyd to participate in an
attack on Quantico is sufficient to support his Count Eleven
conviction. Cf. In re Terrorist Bombings of U.S. Embassies in
E. Africa, 552 F.3d 93, 113 (2d Cir. 2008) (deeming evidence
sufficient to sustain § 1117 conviction). The evidence is more
than adequate to support a rational fact-finder’s determination
that Sherifi knowingly joined Boyd in a plot to target Quantico
for an attack, and that overt acts were committed in furtherance
84
thereof. Sherifi’s conviction on the Count Eleven conspiracy
must therefore also be sustained.
Turning to Sherifi’s convictions on the firearms charges,
those too must be upheld, given the prosecution’s evidence that
Sherifi participated in weapons training sessions in North
Carolina on June 10 and July 7, 2009, where Boyd taught military
tactics and weaponry skills in preparation for violent jihad.
There was substantial evidence to support a finding that
Sherifi, on both of those occasions, possessed and used at least
one firearm for training purposes, in furtherance of the Count
Two conspiracy. Sherifi’s convictions on Counts Four and Eight
are therefore also sustained.
3.
Hassan, who was convicted of the Count One conspiracy only,
maintains that there was a dearth of evidence, testimonial or
otherwise, showing that he entered into a conspiratorial
agreement with anyone. Hassan emphasizes that he was not
involved in any of the audio recordings introduced into
evidence, and that the FBI informants neither interacted with
Hassan nor heard Boyd mention him.
Reviewing the evidence de novo and acknowledging that the
evidence against Hassan is not as overwhelming as that
implicating the other appellants, there was nevertheless
substantial evidence proving that Hassan was involved in the
85
Count One conspiracy. 36 The evidentiary support for his
conviction includes the following:
• Beginning in 2006 and continuing through mid-
2007, Hassan maintained regular contact with
Boyd, often meeting at the Blackstone Halal
Market;
• In 2006 and 2007 Boyd was stockpiling weapons and
surrounding himself with like-minded individuals
called “good brothers.” Those brothers shared
the view that the killing of non-Muslims was a
prescribed obligation. Yaghi and Hassan shared
Boyd’s beliefs in the necessity of violent jihad;
• Seeking a jihadist battlefield, Yaghi travelled
to Jordan in the fall of 2006. While there,
Yaghi maintained contact with Hassan, all the
while expressing the hope that Hassan would make
it to the battlefield. Hassan also “offered
veiled encouragement to defendant Yaghi while he
was on this expedition” overseas. See
Sufficiency Opinion I at 12;
• In early 2007, Yaghi and Hassan sought Boyd’s
assistance in obtaining plane tickets to travel
to the Middle East;
• Before departing for the Middle East in 2007,
Hassan and Yaghi sought Boyd’s advice, including
methods of overseas travel to avoid detection.
Boyd had discussions with Hassan “about killing
and maiming.” Id. at 13;
36
That Hassan was acquitted of the Count Two conspiracy is
not accorded any weight in our analysis. Even if that verdict
is inconsistent with the guilty verdict on Count One, a jury is
permitted to return an inconsistent verdict if it sees fit to do
so. See United States v. Powell, 469 U.S. 57, 63 (1984). The
question before us relates solely to the Count One conspiracy
and whether — viewed in the light most favorable to the
prosecution — that charge was properly proven against Hassan.
86
• Hassan and Yaghi trained with weapons prior to
their 2007 trip overseas as “part of their
continued training” for violent jihad. Id. at
20.
• During a drive with Boyd in 2007, Hassan
brandished a .22 caliber rifle, which Hassan and
Yaghi said they had purchased for training and
target practice;
• In 2007, exchanges between Yaghi and Boyd
indicated that Boyd, who was experienced on the
battlefield, validated the like-mindedness of
Yaghi and Hassan. As the trial court related, a
“readiness to join” Boyd “reasonably could be
concluded” on Hassan’s part. Id. at 12;
• Using plane tickets purchased through Boyd,
Hassan travelled with Yaghi in 2007 to the Middle
East, and sought to enter Israel and Palestine;
• Boyd advised his associates in Raleigh that he
had asked Hassan and Yaghi to go overseas to
engage in violent jihad;
• After arriving in the Middle East, Hassan and
Yaghi sought on several occasions to contact
Boyd;
• Following his return from the 2007 Middle East
trip with Yaghi, Hassan’s contacts with Boyd
diminished substantially. Another set of
initiatives was then undertaken by Yaghi and
Hassan that, as the trial court explained,
“subscribed to [tenets] of violent jihad espoused
by Daniel Boyd.” Id. at 19;
• Hassan’s postings on Facebook and other social
media confirmed his beliefs in violent jihad and
demonstrated his desire to further the violent
causes and ideology espoused by Boyd and others;
• The physical training video that Hassan posted on
RossTraining.com showed his determination to
train physically for violent jihad;
87
• Hassan showed Jamar Carter videos of car bombings
and offered praise for the people fighting in
such a manner. Hassan’s view of jihad “deemed
suicide bombings righteous.” Id. at 19;
• Hassan’s nefarious intentions were substantiated
when, in January 2009, he “instructed his
paramour to remove his postings on his Facebook
page” as well as “postings on ‘Muslim Gangsta For
Life,’” which endorsed his radical ideology. Id.
at 23;
• Hassan had ties to Anwar al-Awlaki and sought al-
Awlaki’s counsel in early 2009 on an important
matter; and
• Hassan’s connection to al-Awlaki, coupled with
Kohlmann’s explanation of al-Awlaki’s far-
reaching influence in the “development of home-
grown terrorists,” id. at 23-24, show that Hassan
“endorsed, collected and distributed preachings
[that] repeatedly called for Jihad against the
United States.” Id. at 25.
In these circumstances, there was substantial evidence
proving that Hassan joined and agreed to participate in the
Count One conspiracy and that, in fact, he participated in
multiple overt acts in furtherance thereof. As a result, the
trial evidence supports Hassan’s conviction on the Count One
conspiracy, and his contention to the contrary is rejected.
D.
Before turning to the various sentencing issues presented
here, I will exercise a point of personal privilege with respect
to the investigation and prosecution of this important case.
The trial record reveals that the appellants strove to conceal
their nefarious activities from outsiders uncommitted to violent
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revolution around the world, habitually congregating in secret
to discuss their plans and to reinforce, in the manner of
zealots, each other’s resolve. That the conspiracy was
infiltrated and almost all of its cohorts arrested before they
could bring their criminal schemes to fruition should in no way
inspire the conclusion that the appellants have been prosecuted
for merely harboring ideas, convicted of nothing more than an
Orwellian “thoughtcrime.”
To the contrary, the evidence reveals that the appellants
are dangerous men who freely and frequently exercised their
constitutional right to speak, to be sure, but who also
demonstrated a steadfast propensity towards action. Before the
appellants’ actions could escalate to visit grievous harm upon
the government, other countries, or innocent civilians, the FBI
and its associates timely intervened. The laudable efforts of
law enforcement and the prosecutors have ensured that, on this
occasion at least, we will not be left to second-guess how a
terrorist attack could have been prevented.
Absent the long reach of the federal conspiracy statutes,
the government would have been forced to pursue the appellants
with one hand tied behind its back. No such constraint served
to hinder the investigation and prosecution of the appellants,
however, and we are reminded once more that the charge of
conspiring to commit a federal crime has yet to relinquish its
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well-earned reputation as — in the words of Learned Hand — the
“darling of the modern prosecutor’s nursery.” Harrison v.
United States, 7 F.2d 259, 263 (2d Cir. 1925). Judge Hand’s
profound observation is as true now as it was nearly ninety
years ago.
Over the course of the modern legal era, the pursuit of
federal conspiracy convictions has doubtlessly been a boon to
United States Attorneys. And it is eminently fair and
reasonable to say that the implementing statutes — particularly
those that dispense with the commission of an overt act as an
element of the crime — sometimes paint with a broad brush. Cf.
Krulewitch v. United States, 336 U.S. 440, 450 (1949) (Jackson,
J., concurring) (“[T]he conspiracy doctrine will incriminate
persons on the fringe of offending who would not be guilty of
aiding and abetting or of becoming an accessory, for those
charges only lie when an act which is a crime has actually been
committed.”). But our system of government and law reposes
great and solemn trust in federal prosecutors to exercise their
discretion as instruments of right and justice, and it is
therefore “for prosecutors rather than courts to determine when
to use a scatter gun to bring down the defendant.” Id. at 452.
Indeed, the societal utility of conspiracy prosecutions as
a weapon against evildoers is manifest not merely in the
substantive elements of the offense, but also in the procedural
90
mechanisms enabling its ready proof, even against those only
marginally involved. See, e.g., Fed. R. Evid. 801(d)(1)(E) (“A
statement . . . is not hearsay [that] was made by the party’s
coconspirator during and in furtherance of the conspiracy.”). A
person intending to only be “in for a penny,” with the slightest
connection to an established conspiracy, actually risks being
“in for a pound.” It is somewhat unique in this case that Boyd,
the prosecution’s star witness, was also the ringleader of the
conspiracies. This was thus a top-down prosecution of
conspiracy offenses, with Boyd and his sons — having departed
the dock and ascended the witness stand — implicating others
more peripherally involved. That fact matters not, however, in
the context of the criminal culpability of these appellants.
Put succinctly, the specter of federal criminal liability cannot
help but serve as an intense deterrent to those who otherwise
would be bent on violence.
We have faithfully applied the well-settled principles of
conspiracy law in this case, both in letter and in spirit. In
so doing, we have come to the ineluctable conclusion that the
government legitimately and appropriately charged the
appellants, and the convictions it thereby obtained are without
infirmity.
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IV.
Finally, having rejected all challenges to the appellants’
convictions, we turn to their contentions concerning the
sentences imposed by the district court. The court announced
those sentences during a January 13, 2012 hearing, and
thereafter filed a sentencing opinion as to each appellant. See
United States v. Boyd, No. 5:09-cr-00216 (E.D.N.C. Jan. 18,
2012), ECF No. 1653 (the “Sherifi Sentencing Opinion”); United
States v. Boyd, No. 5:09-cr-00216 (E.D.N.C. Jan. 18, 2012), ECF
No. 1654 (the “Hassan Sentencing Opinion”); United States v.
Boyd, No. 5:09-cr-00216 (E.D.N.C. Jan. 18, 2012), ECF No. 1655
(the “Yaghi Sentencing Opinion”).
A.
Hassan, who was convicted of solely the Count One
conspiracy, had a base offense level of 33 under the 2011
edition of the Sentencing Guidelines. Because the district
court deemed Hassan to be subject to the enhancement for a
“federal crime of terrorism” under Guidelines section 3A1.4 (the
“terrorism enhancement”), his offense level increased by twelve
levels to 45. The court then applied two additional
enhancements to Hassan — a three-level adjustment for having
selected victims on the basis of their religion, ethnicity, or
national origin, see id. § 3A1.1(a) (the “hate crime
enhancement”), and a two-level adjustment for attempting to
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obstruct justice by asking his paramour to delete Facebook and
other internet postings, see id. § 3C1.1 — resulting in a total
offense level of 50. The court declined to grant Hassan’s
request for a four-level “minimal participant” reduction under
Guidelines section 3B1.2. With the offense level of 50 and the
terrorism enhancement’s automatic criminal history category of
VI, Hassan’s advisory Guidelines range was life in prison.
Nevertheless, § 2339A(a) of Title 18 provides for a maximum
penalty of only fifteen years. Thus, Hassan’s advisory range
fell to 180 months (fifteen years), which was the very sentence
imposed.
After applying both the terrorism enhancement and the hate
crime enhancement to Yaghi, the sentencing court determined that
his adjusted offense level was 48 and his criminal history
category was VI. The resulting advisory Guidelines ranges were
180 months for the Count One conspiracy and life imprisonment
for the Count Two conspiracy. The court sentenced Yaghi to 180
months on Count One and to a concurrent sentence of 380 months
on Count Two, for an aggregate sentence of 380 months.
Sherifi, who was convicted of the Count One, Two, and
Eleven conspiracies, plus the Count Four and Eight firearm
offenses, received the terrorism enhancement, the hate crime
enhancement, and a three-level enhancement for targeting
government officers or employees as victims, see USSG
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§ 3A1.2(a). The court calculated Sherifi’s advisory Guidelines
ranges as follows: 180 months (the statutory maximum) on Count
One; life in prison on Count Two; 60 months (consecutive to any
other sentence) on Count Four; 300 months (consecutive to any
other sentence) on Count Eight; and life in prison on Count
Eleven. Rather than a life sentence, the court imposed an
aggregate sentence of 540 months. 37
On appeal, each of the appellants challenges the sentencing
court’s application of the terrorism enhancement. In addition,
Hassan contends that the court erred in refusing to grant his
request for a minimal participant reduction. Meanwhile, Yaghi
and Sherifi challenge the substantive reasonableness of their
sentences.
B.
1.
The primary sentencing issue pursued by the appellants
relates to the district court’s application of the terrorism
enhancement. More specifically, each appellant contends that
the court clearly erred in finding that he possessed the
specific intent necessary for application of that enhancement.
In assessing whether a court committed procedural error by
37
Sherifi was sentenced to concurrent 180-month terms on
Counts One, Two, and Eleven; a consecutive 60-month term on
Count Four; and a consecutive 300-month term on Count Eight.
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improperly calculating the advisory Guidelines range, we review
its “legal conclusions de novo and its factual findings for
clear error.” United States v. Lawing, 703 F.3d 229, 241 (4th
Cir. 2012).
The terrorism enhancement has two components. The first
bears upon a defendant’s offense level: If the offense of
conviction “is a felony that involved, or was intended to
promote, a federal crime of terrorism,” the applicable offense
level increases by twelve levels or to a minimum of level 32.
See USSG § 3A1.4(a). The second component of the terrorism
enhancement results in a criminal history category of VI — the
maximum under the Guidelines. Id. § 3A1.4(b). For purposes of
the enhancement, the phrase “federal crime of terrorism” has the
meaning specified in 18 U.S.C. § 2332b(g)(5). Id. § 3A1.4 cmt.
n.1. Thus, a “federal crime of terrorism” is an offense that
(A) is calculated to influence or affect the conduct
of government by intimidation or coercion, or to
retaliate against government conduct; and
(B) is a violation of [an enumerated statute].
18 U.S.C. § 2332b(g)(5). In this case, the statutes of
conviction for Count One (18 U.S.C. § 2339A) and Count Two (18
U.S.C. § 956(a)) are among those enumerated in § 2332b(g)(5)(B)
and, as a result, satisfy the second prong of the definition of a
“federal crime of terrorism.” Thus, only the first prong of the
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definition — § 2332b(g)(5)(A)’s specific intent requirement —
is implicated here.
As we explained in our series of Chandia decisions, a court
deciding whether to impose the terrorism enhancement must
“resolve any factual disputes that it deems relevant to
application of the enhancement,” and then, if it finds the
requisite intent, “should identify the evidence in the record
that supports its determination.” United States v. Chandia, 514
F.3d 365, 376 (4th Cir. 2008) (“Chandia I”); see also United
States v. Chandia, 395 F. App’x. 53, 56 (4th Cir. 2010)
(“Chandia II”) (unpublished); United States v. Chandia, 675 F.3d
329, 331 (4th Cir. 2012) (“Chandia III”). In his first appeal,
we affirmed Chandia’s convictions but vacated his sentence,
remanding for fact finding as to whether he possessed the intent
required for application of the terrorism enhancement. See
Chandia I, 514 F.3d at 376. We also vacated and remanded in
Chandia’s second appeal, explaining that the sentencing court
had “again concluded that Chandia deserved the terrorism
enhancement . . . without resolving relevant factual disputes
. . . and without explaining how the facts it did find related
to Chandia’s motive.” Chandia II, 395 F. App’x. at 54. The
court complied with our mandate in the subsequent resentencing
proceedings, finally prompting our affirmance in Chandia’s third
appeal. See Chandia III, 675 F.3d at 331-32. Here, abiding by
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our directives in Chandia I and Chandia II, the district court
resolved the relevant factual disputes and identified, as to
each appellant, the evidence that supported an individualized
application of the terrorism enhancement. See Hassan Sentencing
Opinion 8 n.5; Yaghi Sentencing Opinion 4 n.5; Sherifi
Sentencing Opinion 3 n.5. 38
Beginning with the sentencing court’s determination that
Hassan possessed the intent necessary for application of the
terrorism enhancement, the issue is whether the court erred in
ruling that Hassan’s actions were “calculated to influence or
affect the conduct of government by intimidation or coercion, or
to retaliate against government conduct.” See 18 U.S.C.
§ 2332b(g)(5)(A). The court found that Hassan had built
relationships with Yaghi and Boyd “based on their shared view of
Islam, including the goal of waging violent jihad in various
parts of the world.” Hassan Sentencing Opinion 8 n.5. The
court explained that Hassan “became part of a loose group of
conspirators whose goal was to kill non-Muslims, specifically
38
Because the appellants’ sentencing proceedings were
conducted prior to the issuance of our Chandia III decision, the
district court did not have the benefit of our ruling that “a
preponderance of the evidence is the appropriate standard of
proof for establishing the requisite intent for the terrorism
enhancement.” See 675 F.3d at 339. Being appropriately
cautious, the court applied the more stringent “clear and
convincing evidence” standard.
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those they believed were living unjustly in Muslim lands.” Id.
To further support its finding on specific intent, the court
turned to the record, identifying, in particular, the following:
that Hassan shared Boyd’s view that jihad imposed an obligation
on Muslims of “physically helping with the resistance or
fighting against . . . the NATO forces in Afghanistan or Iraq,
or anyplace, really,” J.A. 1549; Hassan’s 2007 trip to the
Middle East with Yaghi, for the purpose of finding “those who
could assist him and defendant Yaghi to join the mujahideen,”
Hassan Sentencing Opinion 8 n.5; that Hassan and Yaghi, in
advance of their 2007 trip to the Middle East, “brandished a
firearm to Daniel Boyd in veiled reference to their shared
goals,” id.; Hassan’s role in advancing “jihadist propaganda
including the teachings of Anwar al-Awlaki,” as well as Hassan’s
efforts to create and disseminate “his own rhetoric” on the
internet, id.; and that Hassan was “trying to offer himself as a
fighter” and supporting terrorism and extremism by “attempting
to be a part of it on the battlefield, and supporting those who
would,” J.A. 3794. Premised on that evidence, the court
properly found that Hassan possessed “the motive and intent to
influence or affect the conduct of the government by
intimidation or coercion or retaliate against government
conduct.” See id.
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In its sentencing of Yaghi, the district court also
conducted a detailed analysis, finding by clear and convincing
evidence that he possessed the specific intent necessary for the
terrorism enhancement. The court observed that Yaghi had
initiated a corrupt relationship with Boyd when he “sought out”
Boyd at an Islamic center in Durham “to learn more about . . .
Boyd’s time in Afghanistan and presumably to learn more about
traveling abroad to commit violent jihad.” Yaghi Sentencing
Opinion 4 n.5. As further proof that Yaghi’s conduct was
calculated to influence or affect the conduct of government by
intimidation or coercion, the court relied on his travels in
2006 and 2007 to the Middle East, each time seeking, in the
court’s words, “to engage in violent jihad.” Id. The court
determined that Yaghi’s communications to Boyd, as well as his
postings on Facebook, “evidence[d] his intent to wage violent
jihad and acceptance of radical Islam.” Id. Moreover, Yaghi’s
travels in the Middle East, his relationships with Boyd and
Hassan, and his advocacy of violent jihad on the internet
“through raps and other postings,” convincingly demonstrated his
intent to participate in conduct calculated to influence or
affect government. Id. During Yaghi’s sentencing hearing, the
court observed that his conduct had gone “beyond words to
actions,” and that, despite Yaghi’s “very limited resources, [he
still went] back over and he trie[d] to go to Israel.” J.A.
99
3901. In these circumstances, application of the terrorism
enhancement to Yaghi was supported by a preponderance of the
evidence.
As with Hassan and Yaghi, the district court made detailed
factual findings with respect to the application of the
terrorism enhancement to Sherifi. In assessing Sherifi’s
motives, the court found particular importance in his “return to
the United States [from Kosovo] in 2009 with the intent to
solicit funds and personnel” to support the mujahideen. See
J.A. 3853. The court explained that Sherifi hoped “that he
would be able to secure farmland from which to launch various
challenges against military occupation or intervention.” Id.
Like Hassan and Yaghi, Sherifi had developed a relationship with
Boyd on the basis of their shared “goal of waging violent
jihad.” Sherifi Sentencing Opinion 3 n.5. Sherifi also
developed relationships with coconspirator Subasic and the
notorious Serbian terrorist Asllani. The court credited each of
those relationships, as well as Sherifi’s participation in the
firearms training conducted in Caswell County, his receipt of
$15,000 to support the mujahideen, and his “efforts to convert
[Sergeant] Weeks,” as evidence of Sherifi’s specific intent to
intimidate, coerce, or retaliate against government. See id.
Those findings, which are not clearly erroneous, support the
court’s application of the terrorism enhancement to Sherifi.
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2.
The only other sentencing challenge lodged by Hassan, who
insists that he was the least culpable of the defendants,
relates to the district court’s refusal to award him a four-
level minimal participant reduction under Guidelines section
3B1.2(a). We have evaluated Hassan’s contention of error on
that point, and we are satisfied that the court did not clearly
err in denying Hassan’s request. See United States v. Powell,
680 F.3d 350, 358 (4th Cir. 2012). In a conspiracy prosecution,
a minimal participant reduction is not automatically awarded to
the least culpable conspirator. To be entitled to the
reduction, a defendant must show by a preponderance of the
evidence that his role in the offense of conviction “makes him
substantially less culpable than the average participant.” See
id. at 358-59 (internal quotation marks omitted). Although
Hassan may have been less active than many of his
coconspirators, he has failed to establish that he was a minimal
participant. Thus, the court’s ruling to that effect was not
clearly erroneous, and is not to be disturbed.
3.
Turning to Yaghi and Sherifi’s contentions that their
sentences were substantively unreasonable, we review for abuse
of discretion a challenge to the reasonableness of a sentence.
See United States v. Susi, 674 F.3d 278, 282 (4th Cir. 2012).
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If, as here, there is “no significant procedural error, then we
consider the substantive reasonableness of the sentence imposed,
taking into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Id.
(internal quotation marks omitted). As a general rule, “[w]e
apply a presumption of reasonableness to a sentence within or
below a properly calculated guidelines range.” United States v.
Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013).
Yaghi maintains that his aggregate sentence of 380 months
is unreasonably harsh, and particularly so in light of his
difficult childhood and his peaceful nature. Before sentencing
Yaghi, the court considered the contents of his Presentence
Report, resolved his objections thereto, and properly calculated
his advisory Guidelines range. The court then carefully
evaluated each of the 18 U.S.C. § 3553(a) factors. In so doing,
the court weighed the nature and circumstances of Yaghi’s
offenses of conviction, the need for the sentence imposed, and
his history and characteristics. The court emphasized the
seriousness of Yaghi’s conspiracy convictions and his
“escalating contact with the state criminal justice system,”
explaining that such conduct showed his “disregard for liberty
and property rights of others,” and his readiness to “resort to
force.” See Yaghi Sentencing Opinion 8. In these
circumstances, the court did not act unreasonably, nor did it
102
abuse its discretion. Yaghi’s challenge to the substantive
reasonableness of his aggregate sentence of 380 months is
therefore rejected.
Finally, like Yaghi, Sherifi maintains that his aggregate
sentence of 540 months is substantively unreasonable. Notably,
Sherifi does not challenge the reasonableness of the consecutive
sentence of 360 months imposed on his two firearms offenses —
Counts Four (60 months) and Eight (300 months). Rather, he
contends that, because 360 months for those two convictions is
adequate punishment and serves as a sufficient deterrent, the
court should not have imposed any additional consecutive
sentences on his conspiracy convictions. Prior to sentencing
Sherifi, the court properly calculated the advisory Guidelines
ranges for each of his offenses of conviction. Then, after
assessing Sherifi’s background and his role in the offenses, the
court imposed sentences on the conspiracy offenses that were
substantially below those authorized by statute and recommended
by the Guidelines. In these circumstances, the court did not
abuse its discretion in its sentencing of Sherifi, and we are
unable to disturb its sentencing decisions on the basis of
substantive unreasonableness.
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V.
Pursuant to the foregoing, we reject the various
contentions of error presented by the appellants and affirm the
judgments of the district court.
AFFIRMED
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