2d Circuit reverses material support convictions, citing improper admission of hearsay evidence and immaterial/inflammatory evidence
United States v. Al-Moayad (2d Cir. Oct. 2, 2008)
The 2nd Circuit has reversed and vacated the material support convictions of Mohammed Ali Al-Moayad and Mohammed Mohsen Zayed (involving fundraising for HAMAS), on the ground that the district court erroneously admitted into evidence a variety of evidence. Specifically, the Court held that the trial judge should have excluded under Rule 403 testimony from a victim of a HAMAS bus bombing concerning the details of what happened during that bombing and likewise should have excluded the testimony of Yahya Goba (one of the Lackawanna Six) regarding the details of operations at the al Farooq training camp in Afghanistan (including supporting video involving bin Laden and Zawahiri). In addition, the Court held that the trial judge should have excluded as hearsay various other items of evidence.
The full opinion is posted here.
Key excerpts summarizing these various rulings appear below:
The defendants contend that the testimony of Gideon Black about the Tel Aviv bus
5 bombing and of Yahya Goba about the Al-Qaeda training camp was irrelevant, prejudicial, and
6 highly inflammatory. They also contend that the district court permitted the government to elicit
7 testimony from both witnesses that strayed far beyond the government's proffered purpose in
8 offering the evidence – as to Black, establishing the defendants' knowledge that Hamas engaged
9 in terrorist acts, and as to Goba, authenticating the mujahidin form. We agree that the district
10 court should have excluded the challenged testimony under Rule 403, and that its failure to do so
11 deprived the defendants of a fair trial.
…
The defendants were not charged with planning or carrying out the Tel Aviv bus
2 bombing. Indeed, the government did not introduce any evidence connecting Al-Moayad or
3 Zayed to that or any other terrorist act, other than the fact that Siyam mentioned the Tel Aviv
4 incident during his speech at the group wedding. Nevertheless, Black was permitted to testify at
5 length about the suicide bombing. Black spoke about his cousin Yoni, their shared experience
6 studying in Jerusalem, their plans to visit family on the day of the bombing, the catastrophic
7 explosion and subsequent chaotic scene aboard the bus, and Yoni's death. Black also repeated
8 certain parts of his narrative multiple times, such as when he viewed photos of the destroyed bus
9 and described them for the jury, and when he commented on a video of a news story about the
10 bombing.
11 The government argued that the testimony was necessary to establish the defendants'
12 knowledge that Hamas engaged in terrorist activity, and was relevant to the issue of
13 predisposition. However, neither Al-Moayad nor Zayed ever denied knowing about Hamas's
14 involvement in violent acts and they both offered to stipulate as to that knowledge, essentially
15 eliminating the government's burden of proof on that element. In light of these concessions, as
16 well as the considerable testimony during other parts of the trial about notorious terrorist attacks
17 carried out by Hamas, any probative value to be gained from Black's testimony was significantly
18 diminished.
…
Even if the district court properly admitted Black's testimony for the proffered purpose –
2 to show that a bombing actually occurred, just as Siyam said it had – the court erred in allowing
3 the testimony to continue after that fact was established. After Black stated that a "huge
4 explosion" occurred at the front of the bus, defense counsel repeatedly objected to any further
5 testimony. The subsequent details about and images of the wreckage and the death of Black's
6 cousin were even less probative as to the issues at trial, and much more prejudicial. Nor can we
7 find, as we typically have done in rejecting Rule 403 challenges to the admission of evidence,
8 that a limiting instruction mitigated the prejudicial effect of the testimony. See, e.g., United
9 States v. Elfgeeh, 515 F.3d 100, 127 (2d Cir. 2008); Paulino, 445 F.3d at 223; United States v.
10 Downing, 297 F.3d 52, 59 (2d Cir. 2002); Livoti, 196 F.3d at 326. The district court rejected the
11 instruction proposed by Al-Moayad's counsel, which would have informed the jury that "there is
12 no evidence nor allegation that either defendant had anything to do with the bus bombing [of]
13 which Mr. Black and his cousin were victims." Instead, the district court proposed the following
14 vague, tendentious instruction: "You have heard the testimony of a bus bombing, you will
15 determine based on the evidence or lack of evidence who was responsible for that incident. You
16 will also determine what that incident has to do or not to do with the allegations in the
17 indictment."
…
The district court also erred in allowing Yahya Goba to testify about his experiences at
8 the Al-Qaeda training camp in Afghanistan. With regard to Goba, the district court seems simply
9 to have failed to make the required "conscientious assessment" of the testimony's prejudicial
10 effect in comparison with its probative value, without which we have no adequate basis for
11 deferring to the district court's judgment. This omission stemmed, at least in part, from the
12 government's misleading proffer as to what Goba would say. In addition, the court repeatedly
13 and over objection allowed Goba to continue testifying far beyond the proffer, without providing
14 any indication of how (or whether) it had performed the Rule 403 assessment.
15 In theory, the government offered Goba's testimony to provide additional authentication
16 of the mujahidin form, although the form had already been authenticated and admitted into
17 evidence during Agent Hale Keenan's testimony.
…
Goba did testify about filling out a form identical to the mujahidin form, and about listing as his
5 reference the individual who sent him to the camp.
6 However, as described above, Goba's testimony continued well beyond the government's
7 proffer. Al-Moayad's counsel interposed numerous objections throughout. While several of
8 these were sustained, the court never appears to have assessed the probative value of the
9 continuing narrative, or required the government to constrain the testimony to the scope of its
10 proffer. For example, early in the examination but well after Goba discussed the application
11 form, defense counsel stated, "we're learning about this gentleman's experience in the camp that
12 is unrelated to anything involving the defendant in this case." The court received that objection
13 without comment, and the testimony continued. As to the Al Jazeera video of Bin Laden's visit,
14 defense counsel objected, "[t]his is further evidence offered in support of testimony which was
15 irrelevant to start with and much of which was already excluded." The court responded that
16 "[i]t's only three minutes. I am going to allow it." The court also summarily and without
17 comment denied defense counsel's Rule 403 objection.
18 Goba's testimony about the camp, and particularly the government's presentation of
19 images of Bin Laden and Al-Zawahiri, was highly inflammatory and irrelevant, and should not
20 have been permitted by the district court.
…
Al-Anssi's handwritten notes purportedly memorialize the content of his initial meeting
3 with Agent Murphy in Washington and his conversations with Al-Moayad in Yemen. See supra
4 Part I.C.1. The government argued, over the defendants' objections, that the notes were
5 admissible as prior consistent statements and to rebut a misleading impression created during Al-
6 Anssi's testimony that no document supported his claims about the defendants' predisposition.
7 The district court admitted the notes without limitation as substantive evidence.23 Because the
8 court did not explain the basis for its ruling, we cannot be sure whether it admitted the notes as
9 prior consistent statements or to rebut a false impression. In either case, the court clearly erred.
…
If the district court admitted Al-Anssi's notes for their substance as prior consistent
16 statements, it erred in doing so, as the notes do not satisfy the temporal requirement of the Rule.
17 Al-Anssi created the notes after a significant motive to fabricate arose, namely the large amount
18 of money he expected and was paid to furnish information to the FBI.
…
The government argues that even though the mujahidin form was hearsay, it was
9 nevertheless admissible as "a statement by a coconspirator of a party during the course and in
10 furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). According to the government, "there
11 existed an Al-Qaeda conspiracy to recruit and train Mujahidin and . . . Al-Moayad directly
12 participated in that conspiracy by, among other things, sponsoring Mujahidin for training with
13 Al-Qaeda." We disagree that the form could be admitted as a co-conspirator statement.
…
In this case, the district court did not satisfy the requirements of Rule 801(d)(2)(E). The
10 court made no findings, by a preponderance of the evidence or otherwise, about the existence of a
11 conspiracy including Al-Moayad and the individual who filled out the mujahidin form ("Abu
12 Jihad"), nor do we think the court could have done so based on the record before us. Contrary to
13 the government's contention, the record fails to demonstrate Al-Moayad's "longstanding
14 participation in a conspiracy to provide material support to Al-Qaeda," other than some
15 indication that Al-Moayad had a relationship with Bin Laden sometime in the past.
…
For many of the same reasons we discussed with regard to the mujahidin form, the
20 wedding video was not properly admitted under the co-conspirator statement exception…
…
The last will and testament is another matter. The document was hearsay, and the
14 government used the will for its substance. During its rebuttal summation, the government
15 argued, "[I]f you look through the translations of these materials, one of these men has a will. In
16 his will he basically says he's going to die as a martyr. That's what he's there for. These guys
17 are Mujahidin . . . ." The will would not have been admissible for its truth as a co-conspirator
18 statement. The government's evidence, including the will itself, was insufficient to establish that
19 Al-Moayad and the individual from whom the will was seized were engaged in a shared criminal
activity, even a general conspiracy to support Al-Qaeda. The district court therefore clearly erred
2 in admitting the will as substantive evidence.
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