United States of America v. Hassan

Court	United States Court of Appeals for the Fourth District, United States
Case number	742 F.3d 104
Decision title	Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh
Decision date	4 February 2014
Categories	Conspiracy, Material support to terrorism, Terrorism
Keywords	Attempted Travel, conspiracy, First Amendment Rights to free association, Foreign fighters, Terrorism
Links	Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh
Other countries involved	Israel Jordan Kosovo

Summary

Mohammad Omar Aly Hassan, Ziyad Yaghi, and Hysen Sherifi are three Americans charged with conspiring to engage in various terrorist activities. The district court convicted them of various counts of conspiring to commit acts of terrorism abroad. Sherifi was also convicted of conspiring to kill members of the uniformed services within the United States.

The defendants had performed various overt acts in furtherance of a terrorist conspiracy, including travelling to the Middle East, participating in weapons trainings and creating a weapons arsenal, raising money for violent jihadist efforts, and posting about their extremist beliefs on social media.

On appeal to the Fourth Circuit, the appellants challenged their convictions on constitutional and evidentiary grounds. They first argued that the convictions were based on constitutionally protected speech (First Amendment). They also made various evidentiary challenges, including a challenge to the admissibility of lay and expert witness testimony, as well as social media videos and videos collected from defendant’s cell phone demonstrating weapon training. Finally, they challenged the sufficiency of the evidence to support their conviction.

The Court dismissed all of the appellant’s challenges and upheld the district court’s conviction on all of the charges.

Procedural history

On 24 November 2010 the grand jury in eastern North Carolina returned an indictment against the defendants, superseding the prior 22 July 2009 indictment, alleging the offenses relevant to the appeal.

On 13 January 2012:

· Hassan was convicted of conspiring to violate 18 U.S.C. § 2339A, to provide material support to terrorists. He was sentenced to be imprisoned for a term of 180 months,

· Yaghi was convicted of conspiring to violate 18 U.S.C. § 2339A, to provide material support to terrorists, and conspiring to violate 18 U.S.C. § 956(a), to murder, kidnap, maim, and injure persons in a foreign country. He was sentenced to be imprisoned for a term of 380 months,

· Sherifi was convicted of conspiring to violate 18 U.S.C. § 2339A, to provide material support to terrorists, conspiring to violate 18 U.S.C. § 956(a), to murder, kidnap, maim, and injure persons in a foreign country, conspiring to violate 18 U.S.C. § 1117, to kill members of the uniformed services, and possessing a firearm in furtherance of a crime of violence, in contravention of 18 U.S.C. § 924(c). He was sentenced to be imprisoned for a term of 540 months.

The defendants appealed to the Fourth Circuit Court of Appeals.

Related developments

On 9 June 2014, Sherifi’s petition for writ of certiorari was denied.

On 6 October 2014, Hassan’s and Yaghi’s petitions for writ of certiorari were denied.

Legally relevant facts

The appellants were intercepted before any violent actions were carried out.

Relevant actions taken by Yaghi include: discussing violent jihad with Daniel Boyd, the leader and main conspirator, several failed attempts to travel to the Middle East to engage in violent jihad, and recruiting Hassan and others to the conspiracy (pp. 79-80).

Relevant actions taken by Sherifi include: discussing violent jihad with Boyd, travelling to Kosovo to be closer to the battlefield, participating in firearm training, assisting Boyd in preparing a weapons arsenal, and raising money to support violent jihad (pp. 82-83).

Relevant actions taken by Hassan include: encouraging Yaghi to travel abroad, training with weapons to prepare for violent jihad, attempting to travel to the Middle East to engage in violent jihad, and posting his desire to further violent causes on social media (pp. 85-86).

The Court considered the expert witness’ knowledge, training, and skill in regard to his testimony on the structure of Islamic extremist groups, manner of recruitment, and language used (p. 53).

The Court also considered that lay witness testimony was based on conversations with the defendants (p. 65) and that evidence collected pursuant to the Foreign Intelligence Surveillance Act (“FISA”) was properly applied for and approved (p. 73).

Core legal questions

Did the First Amendment preclude the government’s evidentiary use of the defendant’s speech?
Did the district court err in procedure relating to the admission of evidence?
Was there sufficient evidence to support the defendant’s convictions?
Did the district court err in imposing sentencing enhancements and were the sentences unreasonable?

Specific legal rules and provisions

18 U.S. Code, Part 1- Crimes,

18 U.S.C. § 2339A, providing material support to terrorists
18 U.S.C. § 956(a), murdering, kidnaping, maiming, or injuring persons in a foreign country
18 U.S.C. § 924(c), possessing a firearm in furtherance of a crime of violence
18 U.S.C. §1117, killing members of the uniformed services

The Constitution of the United States of America

Amendment I.

Federal Rules of Evidence,

106 – Remainder of or Related Writings or Recorded Statements
403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
701 – Opinion Testimony by Lay Witness
702 – Testimony by Expert Witness
801 – Definitions That Apply to This Article; Exclusions from Hearsay
901 – Authenticating or Identifying Evidence

902(11) – Evidence That Is Self-Authenticating

Court's holding and analysis

The Court of Appeals affirmed the district court and rejected all grounds of appeal.

With respect to the First Amendment challenges, the Court held the conviction did not rest on constitutionally protected modes of speech, but on overt acts in furtherance of a common terrorist scheme (pp. 43-45).

The Court determined that testimony by an expert witness on the meaning of language used with respect to Islamic extremism was both relevant and reliable (p. 53).

The Court rejected all evidentiary challenges, finding that the social media accounts were properly authenticated (p. 60), that lay witness testimony was properly admitted based on the witness’ own perceptions (p. 66), and that electronic surveillance was lawfully acquired under FISA where the application demonstrated probable cause that defendant was an agent of a foreign power (p. 73).

The Court determined that there was substantial evidence proving that the defendants believed in violent jihad, and acted in concert with co-conspirators in furtherance of those beliefs, so that a reasonable fact finder could find the defendants guilty beyond a reasonable doubt (p. 75).

Finally, the Court found the terrorist enhancements to defendant’s sentences appropriate because the defendants engaged in actions to promote jihadist propaganda (pp. 92-103).