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United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013)
SELYA, Circuit Judge. Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government's efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.
In the court below, the government aimed a barrage of terrorism-related charges at defendant-appellant Tarek Mehanna. Following a protracted trial, the jury convicted him on all counts. The defendant [was] ably represented and supported by a coterie of earnest amici .... After careful consideration of the massive record, the defendant's prolific arguments, and the controlling law, we affirm.
... In its final form, the indictment charged the defendant with four terrorism-related counts and three counts premised on allegedly false statements. The terrorism-related counts included one count of conspiracy to provide material support to al-Qa'ida (count 1); one count of conspiracy to provide material support to terrorists knowing or intending its use to be in violation of 18 U.S.C. §§ 956 and 2332 (count 2); one count of providing and attempting to provide material support to terrorists, knowing and intending its use to be in violation of 18 U.S.C. §§ 956 and 2332 (count 3); and one count of conspiracy to kill persons in a foreign country (count 4). …
Counts 1 through 3 (the conspiracy and material support charges) were based on two separate clusters of activities. The first cluster centered on the defendant's travel to Yemen. …
In 2004, the defendant, an American citizen, was 21 years old and living with his parents in Sudbury, Massachusetts. On February 1, he flew from Boston to the United Arab Emirates with his associates, Kareem Abuzahra and Ahmad Abousamra. Abuzahra returned to the United States soon thereafter but the defendant and Abousamra continued on to Yemen in search of a terrorist training camp. They remained there for a week but were unable to locate a camp. The defendant then returned home, while Abousamra eventually reached Iraq.
The second cluster of activities was translation-centric. In 2005, the defendant began to translate Arab-language materials into English and post his translations on a website — at-Tibyan — that comprised an online community for those sympathetic to al-Qa'ida and Salafi-Jihadi perspectives. Website members shared opinions, videos, texts, and kindred materials in online forums. At least some offerings that the defendant translated constituted al-Qa'ida-generated media and materials supportive of al-Qa'ida and/or jihad. …
[The trial] lasted some 37 days.… The jury convicted the defendant on all of them, and the district court imposed a 210-month term of immurement. This timely appeal ensued.…
II. THE TERRORISM-RELATED COUNTS
The centerpiece of the defendant’s challenge to his convictions on the four terrorism-related counts is his binary claim that these convictions are neither supported by the evidence nor constitutionally permissible.
A. SUFFICIENCY OF THE EVIDENCE
We review de novo challenges to the sufficiency of the evidence. This review eschews credibility judgments and requires us to take the facts and all reasonable inferences therefrom in the light most favorable to the jury’s verdict....
To put the defendant’s sufficiency challenge into a workable perspective, it is helpful to trace the anatomy of the four terrorism charges. Count 1 charges the defendant with conspiring to violate 18 U.S.C. § 2339B, which proscribes “knowingly provid[ing] material support or resources to a foreign terrorist organization.” Id. § 2339B(a)(1). To satisfy the intent requirement of section 2339B, a defendant must have “knowledge about the organization’s connection to terrorism.” Holder v. Humanitarian Law Project, 561 U.S. 1, 16-17 (2010). A specific intent to advance the organization’s terrorist activities is not essential....
In this case, the defendant does not dispute that al-Qa’ida was and is a foreign terrorist organization (FTO). Nor could he credibly do so. See Redesignation of Foreign Terrorist Organizations, 68 Fed. Reg. 56,860, 56,862 (Oct. 2, 2003); Redesignation of Foreign Terrorist Organization, 66 Fed. Reg. 51,088, 51,089 (Oct. 5, 2001). By like token, the record leaves no doubt that the defendant was aware of al-Qa’ida’s status.
Count 2 charges the defendant with conspiring to violate 18 U.S.C. § 2339A, which proscribes “provid[ing] material support or resources ..., knowing or intending that they are to be used in preparation for, or in carrying out,” certain other criminal activities. Id. § 2339A(a). The intent requirement under section 2339A differs somewhat from the intent requirement under section 2339B: to be guilty under section 2339A, the defendant must have “provide[d] support or resources with the knowledge or intent that such resources be used to commit specific violent crimes.” United States v. Stewart, 590 F.3d 93, 113 (2d Cir. 2009) (emphasis in original). Thus, “the mental state in section 2339A extends both to the support itself, and to the underlying purposes for which the support is given.” Id. at 113 n.18. As adapted to the circumstances of this case, the government had to prove that the defendant had the specific intent to provide material support, knowing or intending that it would be used in a conspiracy to kill persons abroad. See18 U.S.C. §§ 956, 2332.
Count 3 is closely related to count 2. It charges the defendant with violating, or attempting to violate, 18 U.S.C. § 2339A. The district court instructed the jury that it could find the defendant guilty on count 3 under theories of direct liability, attempt, aiding and abetting, or agency. Because the parties’ arguments on appeal target the attempt theory, we focus our attention there.
Material support is defined identically for purposes of sections 2339A and 2339B. Such support may take various forms, including (as arguably pertinent here) the provision of “service[s]” or “personnel.” 18 U.S.C. §§ 2339A(b)(1), 2339B(g)(4). With respect to the Yemen trip, the government accused the defendant of conspiring to provide himself as an al-Qa’ida recruit (count 1); knowing or intending the use of this material support in a conspiracy to kill persons abroad (count 2); and attempting to provide this support, knowing or intending that it would be used in such a conspiracy (count 3).
Count 4 bears a family resemblance to counts 1 through 3, but it has a slightly different DNA. It charges the defendant with violating 18 U.S.C. § 956, which proscribes conspiring in the United States “to commit at any place outside the United States an act that would constitute the offense of murder” if that act had been committed within the United States. Id. § 956(a)(1). For purposes of this statute, it does not matter whether the defendant’s coconspirators are located within the United States or abroad.
We turn next to the government’s proof. In gauging the sufficiency of that proof, we start with the Yemen trip and the cluster of activities surrounding it....
The government’s evidence of the defendant’s specific intent with respect to his Yemen trip included his own actions, discussions with others, coconspirator statements, and materials that the defendant either kept on his computer or shared on the Internet. The defendant contends that this evidence, in the aggregate, showed nothing more than his participation in activities protected by the First Amendment (e.g., discussing politics and religion, consuming media related to those topics, and associating with certain individuals and groups) and, thus, could not support a finding of guilt. See Scales v. United States, 367 U.S. 203, 229-30 (1961); United States v. Spock, 416 F.2d 165, 169-74 (1st Cir. 1969). But the defendant is looking at the evidence through rose-colored glasses. We think it virtually unarguable that rational jurors could find that the defendant and his associates went abroad to enlist in a terrorist training camp.
On this point, the defendant’s own statements are highly probative. His coconspirators testified that the defendant persistently stated his belief that engaging in jihad was “a duty upon a Muslim if he’s capable of performing it,” and that this duty included committing violence. The evidence further showed that, following United States intervention in Iraq, the defendant concluded “that America was at war with Islam,” and saw American “soldiers as being valid targets.”
Acting upon these views, the defendant and his associates—as early as 2001—discussed seeking out a terrorist training camp. Following these discussions, the defendant expressed interest in receiving military-type training in order to participate in jihad. The defendant made clear that he wished to engage in jihad if he “ever had the chance” and that he and his associates “would make a way to go.” Together, they “discussed the different ways people could get into Iraq, the different training camps.”
In these conversations, the defendant voiced his desire to fight against the United States military forces in Iraq. He and his associates went “in depth on details” regarding the logistics of reaching such a terrorist training camp.
Coconspirator testimony shined a bright light on the defendant’s intent. This testimony made pellucid that the defendant and his comrades traveled to Yemen “for the purpose of finding a terrorist training camp” and “[e]ventually ... get[ting] into Iraq.” The defendant’s particular interest in Iraq was because it was “an area that was being attacked.” He took the position that “there was an obligation for Muslims to stand up and fight against invasion of Iraq and the U.S. forces in Iraq.”
The defendant attempts to characterize these remarks as mere political speech. The jury, however, was entitled to draw a different inference: that the defendant’s comments were evidence of the formation and implementation of a scheme to go abroad, obtain training, join with al-Qa’ida, and wage war against American soldiers fighting in Iraq.
The timing of the trip and the furtiveness with which the defendant acted provide circumstantial support for this conclusion. The record contains evidence that the defendant abruptly suspended his studies in Massachusetts during the school year and kept his plans hidden from his parents. Prior to his departure, he gave his brother a bag of personal belongings and asked his brother to dispose of them. These belongings included “something about how to make a bomb.”
We note that the defendant and his associates purchased round-trip airline tickets. In the travelers’ own words, however, the return portions were for use “[i]f things didn’t work out,” as well as to avoid raising the sort of suspicion often associated with one-way ticketing. And Abuzahra testified at trial that, notwithstanding the return ticket, he did not expect to return to the United States because “[t]he purpose of ... going was to basically fight in a war.” ...
There was more. The evidence showed that the defendant and his associates had a plan of action for their arrival in Yemen. Abousamra had obtained the name of a contact there “who was going to get them to a military training camp.” When the men traveled to Yemen, they carried a piece of paper that contained the contact’s name.
To be sure, the Yemen trip did not bear fruit. Once there, the defendant learned to his evident dismay that training camps no longer existed in the area and “that it was nearly impossible for anybody to get any training” there. The contact in Yemen fizzled, telling the defendant and Abousamra that “all that stuff is gone ever since the planes hit the twin towers.” It is consistent with the government’s theory of the case, however, that the defendant, when confronted with this news, expressed disappointment that he had “left [his] life behind” based on faulty information.
The government’s case is strengthened by evidence that the defendant and his associates engaged in a coverup that continued long after the defendant’s return from Yemen. The record reflects that the defendant and his associates repeatedly discussed how to align their stories and mislead federal investigators (in point of fact, they formulated cover stories for their Yemen trip even before the trip began). To facilitate the coverup, the defendant and his cohorts attempted to obscure their communications by using code words such as “peanut butter,” “peanut butter and jelly,” or “PB&J” for jihad and “culinary school” for terrorist training. Relatedly, the defendant encouraged an associate to install an “encryptor” on his computer in order to make it “much harder for [the FBI] to” monitor their online communications.
It is settled beyond hope of peradventure that evidence of participation in a coverup can be probative of elements of the underlying crime such as knowledge and intent. This is a commonsense proposition, and “criminal juries are not expected to ignore what is perfectly obvious.”
There is another dimension to this aspect of the government’s case. Although the theory of guilt that we have been discussing centered on the cluster of activities surrounding the Yemen trip, it was bolstered by other evidence.
To begin, the defendant’s desire to engage in jihad did not end with the failed Yemen trip. Early in 2006, the defendant told an associate, Ali Aboubakr, about how he had traveled to Yemen to engage in jihad. The defendant invited Aboubakr to join him if he elected to travel abroad for jihad again. He described “a camp” that they could attend in Yemen, where they would “live with like, 300 other brothers” who “all walk around ... with camo jackets and AK-47s.” The defendant urged Aboubakr, who was then a college student, not to tell his father about his plan.
The defendant’s communication with his “best friend,” Daniel Maldonado, further evinced his determination to engage in jihad. [At the time of trial, Maldonado was serving a ten-year sentence pursuant to his guilty plea for receiving military-type training from an FTO. See18 U.S.C. § 2339D(a)]. In December of 2006, Maldonado telephoned the defendant from Somalia. During this call, the two discussed the logistics needed for the defendant to join Maldonado in Somalia, including transportation and travel documents. Maldonado said that he was “in a culinary school” and “mak[ing] peanut butter and jelly.” Maldonado testified that this was code language, familiar to the defendant, denoting that Maldonado was in a terrorist training camp and engaged in jihad.
Percipient witnesses testified that the defendant watched jihadi videos with his associates for the purpose of “gain[ing] inspiration from the[m]” and “becom[ing] like a mujahid.”5 These videos depicted events such as Marines being killed by explosives, suicide bombings, and combat scenes glorifying the mujahideen. The defendant was “jubilant” while watching them.
In a similar vein, the record is shot through with evidence of the defendant’s rabid support for al-Qa’ida, his “love” for Osama bin Laden, his admiration of the September 11 hijackers, and his conviction that the September 11 attacks were justified and a “happy” occasion.
The defendant complains that some of this evidence bears no direct connection to his Yemen trip. This plaint is true as far as it goes—but it does not take the defendant very far. It overlooks the abecedarian proposition that evidence of a defendant’s general mindset may be relevant to the issue of his intent. The record here is replete with such evidence.
The evidence we have summarized sufficed to ground a finding, beyond a reasonable doubt, that the defendant traveled to Yemen with the specific intent of providing material support to al-Qa'ida, knowing or intending that this support would be used in a conspiracy to kill persons abroad. It likewise sufficed to ground a finding that the defendant attempted to provide such material support, knowing or intending that it would be used in a conspiracy to kill persons abroad. Finally, it sufficed to ground a finding that the defendant, while in the United States, conspired with others in a plan to kill persons abroad. The evidence was, therefore, ample to convict on the four terrorism-related counts.
B.THE DEFENDANT’S REJOINDERS
Despite the obvious logic of the government’s position and the wealth of evidence that supports it, the defendant labors to undermine the four terrorism-related convictions. His efforts take two different directions—one a frontal assault and the other an end run. We address each in turn.
[1] Scholarly Pursuits. The defendant argues that the only reasonable interpretation of his Yemen trip and the activities surrounding it is an innocent one: he sojourned to Yemen solely for the purpose of studying there. He describes himself as a devoted scholar of Islam and asserts that he visited Yemen, specifically, because the purest form of Arabic is spoken there. In support, he reminds us that he toured a school while in the country.
Relatedly, the defendant suggests that, regardless of his associates’ purpose and intent, he was far more moderate than they. This moderation allegedly included adherence to certain beliefs antithetic to al-Qa’ida canon. Among these beliefs was the doctrine of “aman,” which the defendant describes as “a covenant to obey the law within a country that permits practice of the faith.” As he would have it, his adherence to aman would prohibit him from targeting American troops.
We readily agree that the record contains some evidence supporting the defendant’s alternative narrative. Yet, that evidence does not eclipse the plethora of proof pointing in the opposite direction. When all was said and done, the jury heard and rejected the defendant’s innocent explanation of the events that occurred. It was plainly entitled to do so.
To gain a conviction, the government need not “eliminat[e] every possible theory consistent with the defendant’s innocence.” It is the jury’s role—not that of the Court of Appeals—to choose between conflicting hypotheses, especially when such choices depend on the drawing of inferences and elusive concepts such as motive and intent.
[2] The Alternative Theory of Guilt. The defendant’s second rejoinder represents an attempt to change the trajectory of the debate. He points out that the indictment identifies his translations as culpable activity; that the government introduced copious evidence in support of a theory of guilt based on the translations; that it argued this theory to the jury; and that the jury returned a general verdict. Building on this platform, he argues that even if the evidence of the Yemen trip is sufficient to ground his terrorism-related convictions, those convictions cannot stand because they may have been predicated on protected First Amendment speech.
It is pointless to speak in the abstract of a verdict predicated on protected conduct. The Court of Appeals is not a sorting hat, divining which criminal defendants’ stories fall into constitutionally protected and unprotected stacks. Cf. J.K. Rowling, Harry Potter and the Sorcerer’s Stone 113-22 (1997). Instead, an appellate court’s role is to discern what, if any, errors marred the trial below. This inquiry requires us to focus on the relevant actors in the trial and not to engage in an untethered academic analysis of the verdict itself....
In sum, the district court’s instructions captured the essence of the controlling decision in [Humanitarian Law Project], where the Court determined that otherwise-protected speech rises to the level of criminal material support only if it is “in coordination with foreign groups that the speaker knows to be terrorist organizations.” If speech fits within this taxonomy, it is not protected. This means that “advocacy performed in coordination with, or at the direction of,” an FTO is not shielded by the First Amendment. The district court’s instructions tracked the contours of this legal framework. The court appropriately treated the question of whether enough coordination existed to criminalize the defendant’s translations as fact-bound and left that question to the jury. We discern no error....
That brings down the final curtain. We have found the defendant’s claims of legal error with respect to his translation activities wanting, and we have no occasion to examine the factual sufficiency of those activities as a basis for his terrorism-related convictions. Even if the government’s translation-as-material-support theory were factually insufficient, we would not reverse: the defendant’s convictions on the affected counts are independently supported by the mass of evidence surrounding the Yemen trip and … we need go no further.
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