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Federal Criminal Law

United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011)

 DUBINA, Chief Judge:

A federal grand jury in the Southern District of Florida indicted Appellants Adham Hassoun, Kifah Jayyousi, and Jose Padilla (referred to individually by name or collectively as "defendants"), along with Mohammed Youssef and Kassem Daher, for offenses relating to their support for Islamist violence overseas. Count 1 charged defendants with conspiring in the United States to murder, kidnap, or maim persons overseas [in violation of] 18 U.S.C. § 956(a)(1) [which provides:

Whoever, within the jurisdiction of the United States, conspires with one or more other persons, regardless of where such other person or persons are located, to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be punished as provided in subsection (a)(2).].

Count 2 charged defendants with conspiring, in violation of 18 U.S.C. § 371, to commit the substantive 18 U.S.C. § 2339A offense of "provid[ing] material support or resources or conceal[ing] or disguis[ing] the nature, [or] source . . . of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [§ 956(a)(1), i.e., a conspiracy to murder, kidnap or maim overseas]." 18 U.S.C. § 2339A. Count 3 charged defendants with a substantive § 2339A material support offense based upon an underlying § 956(a)(1) conspiracy. The charged conduct began in October of 1993 and continued until November 1, 2001. Before trial, this court reversed the district court's order dismissing the most serious count, Count 1, for multiplicity. United States v. Hassoun, 476 F.3d 1181 (11th Cir. 2007).

Trial commenced on April 16, 2007, and four months later, the jury returned a special verdict convicting defendants on all counts. The jury expressly found each of the three objects of the Count 1 conspiracy (the murder of persons outside the United States, the kidnapping of persons outside the United States, and the maiming of persons outside the United States) and found that Padilla's and Hassoun's offenses continued beyond October 26, 2001, but Jayyousi's offense did not. The district court denied the defendants' motions for judgment of acquittal and new trial. On Count 1, the district court sentenced Padilla to 208 months, Hassoun to 188 months, and Jayyousi to 152 months' imprisonment. On Count 2, the district court sentenced each defendant to the maximum 60 months' imprisonment. On Count 3, the district court sentenced Padilla and Hassoun to the maximum of 180 months' imprisonment and sentenced Jayyousi to the maximum of 120 months' imprisonment. The district court made all sentences run concurrently and imposed a 20-year period of supervised release for each defendant. The defendants appeal, and the government cross-appeals Padilla's sentence. …

III. TRIAL EVIDENCE

The government's theory at trial was that the defendants formed a support cell linked to radical Islamists worldwide and conspired to send money, recruits and equipment overseas to groups that the defendants knew used violence in their efforts to establish Islamic states. The government posited that the defendants' efforts supported an international network of radical Islamists, including al-Qaeda and other terrorist groups such as Maktab al-Khidamat ("MAK"), the precursor to al-Qaeda founded by Palestinian Abdullah Azzam, and The Islamic Group of Egypt founded by an Egyptian cleric, Sheikh Omar Abdel Rahman ("the Blind Sheikh"). The government claimed that each defendant performed an important, but different, role in this support cell. To support its theory, the government presented evidence of intercepted telephone calls among defendants, faxes from support groups to defendants, checks and receipts showing financial transactions by defendants, and an al-Qaeda "mujahideen identification form" that the government contended Padilla completed in July 2000, in order to attend a jihad training camp.

The defendants' primary defense was their lack of intent to support a violent form of jihad. They contended that they provided only humanitarian aid to oppressed Muslims and did not knowingly participate in a conspiracy to provide material support or resources for terrorist organizations that engaged in murder, kidnapping, or maiming in their efforts to establish Islamic states.…

IV. DISCUSSION

B. Sufficiency of the evidence

Padilla challenges the sufficiency of the evidence on all three counts, and Jayyousi contends that the government did not present sufficient evidence to convict him on Count 3, the substantive 18 U.S.C. § 2339A material support offense based upon an underlying 18 U.S.C. § 956(a)(1) conspiracy. In reviewing challenges to the sufficiency of the evidence, we must accept all reasonable inferences that support the verdict and "affirm the conviction if a reasonable trier of fact could conclude that the evidence establishes guilt beyond a reasonable doubt." …

The record shows that the government presented evidence that the defendants formed a support cell linked to radical Islamists worldwide and conspired to send money, recruits, and equipment overseas to groups that the defendants knew used violence in their efforts to establish Islamic states. Agent Kavanaugh, who was in charge of the bulk of the investigation in this case, identified numerous conversations among the defendants discussing Padilla's travels to countries where Muslims were victimized. The government presented Padilla's mujahideen identification form that indicated his intent to attend a jihad training camp. The government's expert testified to the secrecy of the training camps, and the requirement that a recruit, particularly an American Muslim, receive a recommendation from a reliable brother to attend the camp. He also acknowledged that al-Qaeda kept records on the recruits who attended the training camps and that the recruits did not provide their real names on the identification forms. Government witness Goba confirmed the expert's testimony regarding the secrecy of the jihad training camps, the need for someone to recommend each recruit, and the purpose of the camp, which was to train individuals in weapons and war tactics for military jihad.

The record provides sufficient evidence for a reasonable jury to find that Padilla trained with al-Qaeda and shared his conspirators' intent to support jihad violence overseas to establish Islamic states. The government presented evidence of numerous discussions between the conspirators regarding the various conflicts involving Muslims overseas. The evidence showed that Youssef, Hassoun, and Padilla began discussing attendance at al-Qaeda camps before Padilla left for Egypt in September 1998. In various calls, Youssef stated that he was ready to work with the refugees in Kosovo, and that he fought on the front lines in the Kosovar conflict. … Hassoun expressed his desire to send another recruit to Kosovo, and Youssef suggested Padilla. … Later, Hassoun told Youssef that he would send money with Padilla. … Further, Padilla was secretive about his plans to attend the training camp, instructing Hassoun not to tell Youssef any plans over the phone. …

The record also demonstrates that the conspirators did not intend for Padilla to remain in Egypt, but instead, they planned for him to prepare to leave Egypt for jihad at the first opportunity, [Doc. 1118, p. 105; Gov't Ex. 113TR/114TR (Padilla telling Hassoun how to reach him in case the "door opens").] and planned for Padilla to travel to the Chechen jihad after he received his training. While traveling to fight in Chechnya, Youssef told Hassoun that he would soon be with bin Laden and Khattab's company, and when Hassoun asked about Padilla, Youssef stated that Padilla was traveling to the "area of [O]sama [bin Laden]." … Another intercept further dispels Padilla's contention regarding the sufficiency of the evidence. In October 2000, Hassoun asked Youssef if he would join "Abu Abdullah, the Puerto Rican" in Afghanistan, and Youssef responded that he had experience fighting on the front lines and did not need to hone his military skills. … Based on the above, we conclude that there is sufficient record evidence to support Padilla's convictions on Counts 1 and 2.

Padilla and Jayyousi both challenge the sufficiency of the evidence to convict them on Count 3. In order to convict Padilla and Jayyousi under the substantive count, the government did not have to prove that Padilla and Jayyousi personally committed violent acts; rather, the government had to prove that these individuals knew that they were supporting mujahideen who engaged in murder, maiming, or kidnapping in order to establish Islamic states. The evidence supports the jury's reasonable inference that Padilla and Jayyousi knew the training camps trained recruits in weaponry and war tactics and that they shared a common purpose to support violent jihad to regain the lands that were once under Islamic control [See, e.g., Gov't Ex. 802, The Islam Report where Jayyousi wrote, "May Allah help the mujahideen topple these un-Islamic and illegal puppet regimes in our Muslim lands."]. The record indicates Padilla provided himself as material support in the form of a recruit for jihad training; personal information on the mujahideen identification form matched Padilla's personal information on his passport; the government expert identified Padilla's fingerprints on the form; the government expert testified that the use of code words is a signature trait of a terrorism support cell; Jayyousi received a fax that had bin Laden's signature on it; Jayyousi oversaw the purchase of satellite phones, walkie talkies and encrypted radios to send to Chechnya to aid the Muslims in their armed conflict; Jayyousi told Mohamed Shishani that the donations for the radios (to assist in communication during fighting) did not come in time to prevent the killing of mujahideen by friendly fire; and Jayyousi acknowledged in a conversation that all their calls were recorded. We conclude that this evidence, along with other evidence presented by the government, was sufficient for a reasonable jury to conclude that Jayyousi and Padilla were guilty of providing material support or resources, knowing that these would be used in preparation for carrying out a conspiracy to murder, kidnap, or maim overseas.

V. CONCLUSION

We have meticulously reviewed the entire record of the four-month trial in this case and conclude that the defendants are not entitled to relief on any of their claims. … Accordingly, we affirm the defendants' convictions in all respects … [but the court remanded for resentencing].