UNITED STATES OF AMERICA V. HASSAN, NOS. 12-4601; 12-4603; 12-4607

Decided: February 4, 2014

Three defendants, Omar Hassan, Ziyad Yahi and Hysen Sherifi (collectively “Defendants”) were tried jointly in the Eastern District of North Carolina and convicted of several offenses arising from terrorist activities.  After numerous challenges, the Fourth Circuit affirmed the conviction and sentence.

Defendants’ offenses stem from a conspiracy to commit terrorist acts orchestrated by Daniel Boyd (“Boyd”). Boyd pled guilty to the crimes and, as a part of his plea agreement, testified against Defendants. Boyd spent time in his early life at a training in Pakistan and Afghanistan run by Osama Bin Laden. Eventually, Boyd settled with his family in Raleigh, North Carolina. By 2004, Boyd was fully immersed in radical Islam and disassociated himself from the mainstream Islamic community. He began meeting with others at his Raleigh home and at a grocery store he owned and operated to discuss his violent religious views. Boyd explained that “to him, jihad required ‘doing something to fulfill [his] obligation in Islam.’” Boyd and Defendants met numerous times from 2004 to 2009 to discuss ways to fulfill this objective. The FBI initiated an investigation of Boyd in 2005, and two federal agents developed a close personal relationship with Boyd, with Boyd eventually helping one agent obtain a passport to travel abroad to engage in violent jihad. These federal agents provided much of the evidence necessary to capture Boyd and the Defendants.

Defendant Yaghi met Boyd in 2006 when Yaghi was just eighteen years old. Yaghi asked Boyd about his time in Afghanistan and the two developed a close personal relationship. The men regularly met and discussed Boyd’s experiences in the Middle East and his views on Islam and violent jihad. Yaghi sought Boyd’s advice about traveling to Jordan and asked Boyd where to find the “best brothers,” in an effort to join the violent Islamic resistance movement in Jordan. Before traveling to Jordan in 2006, Yaghi met with Boyd and others and had a “joyous send-off” where well-wishers conveyed messages to Boyd, encouraging him to make his way to the battlefield and engage in jihad against the “kuffar” (non-Muslims). Additionally, Yaghi expressed an interest in finding a “wife” overseas, a term synonymous with engaging in violent jihad. Yaghi was not successful in engaging in jihad while overseas, but he did post numerous statements on Facebook reflecting his sympathies to the violent jihadist ideology, particularly Anwar al-Awlaki, a prominent American born al-Qaida militant. After returning, Yaghi spoke to the Islamic Association of Raleigh “promoting jihad and the corresponding moral obligation to commit violence against non-Muslims.”

While overseas, Yaghi also kept in touch with Defendant, Hassan. The two primarily talked through Facebook, frequently posting vulgar rap songs and poems about their animosity toward the non-Muslim Kuffar. After returning from Jordan, Yaghi introduced Hassan to Boyd and the three men discussed their desire to engage in violent jihad around the world. In fact, when Boyd traveled to Israel and Palestine in 2007, Yaghi and Hassan sought to travel with Boyd and his family. Boyd declined, but helped the men obtain plane tickets to travel to the Middle East to engage in jihad. Hassan and Yaghi also assisted Boyd in creating a bunker beneath Boyd’s home to conceal his large stockpile of weapons. While abroad, Boyd claims that rumors circled regarding his involvement in violent jihad. Boyd learned that Hassan’s father was particularly troubled by the rumors and had a heated discussion with Boyd regarding his son’s whereabouts. After the 2007 trip, Yaghi and Hassan remained close friends, but their contacts with Boyd diminished. In 2009, Yaghi and Hassan were arrested on unrelated charges. While detained, Hassan asked his paramour to contact al-Awlaki to seek advice on his behalf and to remove some of Hassan’s postings on Facebook related to violent jihad.

In March 2008, Boyd met Defendant Sherifi, often discussing shared views of violent jihad and that dying as a martyr was an important goal for a good Muslim. Sherifi, Boyd and others made regular efforts to raise money to support jihadist causes. In June 2008, Sherifi gave Boyd $500 “for the sake of Allah.” Shortly before his arrest, Sherifi received a $15,000 check from a man who attended the same mosque as Sherifi to contribute to the cause. When Sherifi encountered difficultly traveling, Boyd suggested that “if Sherifi could not travel, he should ‘make jihad’ in the United States.” Eventually, Sherifi traveled to Kosovo and developed a relationship with a FBI informant. During Sherifi’s relationship with the informant, Sherifi provided literature and videos, including one depicting a beheading. Sherifi explained that beheading was what happened to those who leave the Islamic religion. Sherifi returned to North Carolina to save money to buy a family farm is Kosovo to help other jihadists on the battlefield. As a method of saving money, Sherifi worked delivering medical supplies to Fort Bragg Army Post in North Carolina. Sherifi boasted about the ease of accessing the military base as a military truck driver. Boyd and Sherifi then identified Quantico Marine Corps Base in Virginia as a target. They discussed the possibility of kidnapping a Marine officer for ransom to seek the release of an Islamic scholar imprisoned in the United States. As part of the kidnapping, Boyd suggested cutting off the officer’s finger and sending it to the other officials so that they would “know it was him.” In 2009, Sherifi participated in two weapons training sessions in Caswell County, North Carolina on a rural property actually owned by the United States government and under heavy surveillance. Shortly after the second training session, the Defendants were arrested.

After a lengthy trial, the Defendants were convicted and sentenced. Defendants appealed the conviction and sentence to the Fourth Circuit on several grounds. First, Defendants argued that their conviction could not stand because the district court committed reversible error in instructing the jury on the First Amendment. Defendants claimed that they were prosecuted “purely for their offensive discourse” and that they “never agreed to take action in connection with their beliefs.” The Fourth Circuit held that the district court did not err in dismissing the Defendants’ First Amendment defense. In this case, the Defendants’ actions went far beyond speech, committing many overt acts in furtherance of the conspiracy. The trial court adequately charged the jury regarding the Defendants’ rights to speak freely and exercise their religion under the First Amendment, but the Defendants’ were not prosecuted for their speech. Rather, the Defendants were convicted for acts far beyond their speech, including traveling abroad to engage in violent jihad, recruiting others, and engaging in extensive weapons training.

The Defendants also raised a number of evidentiary issues on appeal. The Fourth Circuit dismissed the Defendants’ claims on all counts. First, the Fourth Circuit affirmed the district court’s allowance of the testimony of the government’s expert to explain various aspects of Islamic extremism. The court explained that the expert’s extensive knowledge of Islamic phrases and of the structure, recruiting methods, and leadership of Islamic extremist groups likely helped the jury understand many of the unfamiliar facts of the case.

Second, Defendants Hassan and Yaghi objected to the presentation of exhibits consisting of Facebook pages and videos hosted on YouTube, arguing that it was not properly authenticated and violated the rule against hearsay. The Fourth Circuit disagreed, ruling that the information contained on the web was self-authenticating and admissible as business records. All information was accompanied by a certification of records custodians verifying that the sites were maintained as business records in the course of regularly conducted business activity. Hassan additionally argued that allowing the presentation of certain training videos to the jury while refusing to admit his related comments under his video violated the rule of the completeness. The video at issue contained numerous quotations suggesting Hassan’s terrorist sympathies. However, Hassan’s lawyer sought to introduce a comment that Hassan posted under the video stating that he “does not support terrorists.” The Fourth Circuit held that there was no violation of the rule of completeness by refusing to also introduce the subsequent exculpatory statements and that the additional comments violated the rule against hearsay. Furthermore, the court affirmed the use of a cell phone video of Hassan using a firearm at an outdoor location near the Islamic center in Raleigh in 2009, determining that it was relevant to show Hassan’s weapons training and his continued involvement in the terrorist conspiracy. In fact, on cross-examination, a government witness readily admitted that the mere possession or firing of the rifle was not illegal.

Third, the Defendants’ argued that the district court improperly allowed Boyd to present lay opinion testimony regarding his understanding of Defendants’ statements during face-to-face and email conversations. The Fourth Circuit found that Boyd’s opinion testimony was permissible under Federal Rule of Evidence 701. Boyd’s testimony was based purely on his perception after consistent contact with the witnesses. Furthermore, the testimony was helpful to assist the jury in understanding many words associated with violent jihad of which the jury is likely unfamiliar.

Next, the Defendant Yaghi asserted that district court erred by allowing the government to present evidence obtained pursuant to Foreign Intelligence Surveillance Act (FISA) because there was no probable cause for the government to believe that Yaghi was an agent of a foreign power, as required by FISA. The Fourth Circuit disagreed, citing the government’s strict adherence with all formal requirements under FISA. Moreover, after an in camera review of the documents, the court determined that the government had sufficient probable cause to suspect that Yaghi was an agent of a foreign power.

As their final evidentiary challenge, the Defendants argued that there was insufficient evidence to support their convictions. The court conceded that while a majority of the evidence was circumstantial, the evidence against the Defendants was substantial enough to support the conviction. To support the conviction of Defendant Yaghi, the court explained that the substantial evidence supporting the jury’s conviction included, inter alia, seeking out Boyd at as Islamic center to exchange views on radical Islam, traveling to the Middle East with the expressed intention to commit violent jihad, recruiting other to the terrorism conspiracy, and violent Facebook messages promoting radical jihadist beliefs. Additionally, the jury had sufficient evidence to conclude that Sherifi was involved in the terrorism conspiracy alleged, including, inter alia, the sharing of a violent Islamist ideology with Boyd, openly advocating for the overthrow of United States law in favor of Shari’ah Law, traveling to Kosovo for the purpose of “being closer to the battlefield,” participation in firearms training with like-minded individuals, assisting Boyd in building a bunker to store Boyd’s weapons arsenal, his attempt to raise funds to purchase a farm to aid Islamic terrorists in the “battlefields” of Kosovo, and his efforts relating to targeting an American Military base for violent jihad. Finally, the court found that there was sufficient evidence for the jury to conclude that Hassan entered into the terrorism conspiracy, such as, regular contact with Boyd, seeking assistance to travel abroad to the Middle East to participate in jihadist efforts, discussion with Boyd about “killing and maiming,” participation in weapons training, the posting of the physical training video showing his determination to train for violent jihad, his contacts with Anwar al-Awlaki, and his online posting showing support for car bombings and other forms of violent jihad.

Finally, the Fourth Circuit affirmed the sentences imposed by the district court. The court held that the district court properly imposed the “federal crime of terrorism” sentencing enhancement under the federal sentencing guidelines. In order to impose the terrorism enhancement, the court must conclude that the defendant committed a “federal crime of terrorism,” defined as, inter alia, actions “calculated to influence or affect he conduct of government by intimidation or coercion, or to retaliate against government conduct.” The district court found that the Defendants “became part of a loose group of conspirators whose goal was to kill non-Muslims.”  Based on the considerable evidence presented, the court affirmed the conviction, the sentencing, and the terrorism enhancement.

Full Opinion

– Wesley B. Lambert

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