545 F.3d 139 (2nd Cir. 2008), 05-4186, United States v. Al-Moayad

Docket Nº:05-4186-cr (L), 05-4838-cr (CON).
Citation:545 F.3d 139
Party Name:UNITED STATES of America, Appellee, v. Mohammed Ali AL-MOAYAD, Mohammed Mohsen Zayed, Defendants-Appellants.
Case Date:October 02, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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545 F.3d 139 (2nd Cir. 2008)

UNITED STATES of America, Appellee,

v.

Mohammed Ali AL-MOAYAD, Mohammed Mohsen Zayed, Defendants-Appellants.

Nos. 05-4186-cr (L), 05-4838-cr (CON).

United States Court of Appeals, Second Circuit.

October 2, 2008

Argued: Nov. 26, 2007.

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Robert J. Boyle, New York, NY, for Defendant-Appellant Mohammed Ali Al-Moayad.

Steven A. Feldman, Feldman & Feldman, Uniondale, NY, for Defendant-Appellant Mohammed Mohsen Zayed.

Pamela K. Chen, Jeffrey H. Knox, Assistant United States Attorneys (David C. James, Assistant United States Attorney, on the brief), for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, for Appellee.

Before: McLAUGHLIN, B.D. PARKER, and WESLEY, Circuit Judges.

B.D. PARKER, JR., Circuit Judge:

Defendants Mohammed Ali Al-Moayad (“ Al-Moayad" ) and Mohammed Mohsen Zayed (“ Zayed" ) appeal from judgments of conviction in the United States District Court for the Eastern District of New York (Johnson, J. ). Both were convicted of conspiring to provide material support to designated terrorist organizations Hamas and Al-Qaeda, and attempting to provide material support to Hamas. See 18 U.S.C. § 2339B(a)(1). Al-Moayad was also convicted of attempting to provide material support to Al-Qaeda and providing material support to Hamas. Id. Al-Moayad was sentenced to the statutory maximum of 180 months' imprisonment on each count, which the district court directed would run consecutively for a total period of incarceration of 900 months. The district court also sentenced Zayed to the statutory maximum of 180 months on each count to run consecutively, for a total of 540 months' imprisonment. We conclude that the district court committed evidentiary errors that were sufficiently prejudicial as to deprive the defendants of a fair trial. We therefore vacate the convictions and remand for further proceedings.

I. BACKGROUND

A. Government's Evidence Against the Defendants

1. FBI investigation

The convictions arose from an investigation and sting operation conducted principally by the Federal Bureau of Investigation. At trial, the jury heard testimony from various witnesses describing the operation and the events that led to the prosecution, and viewed video tapes of FBI-orchestrated meetings between the defendants and government informants that took place in Frankfurt, Germany in January 2003.

In investigating the defendants, the government relied heavily on the assistance of a confidential informant named Mohammed Al-Anssi,1 a Yemeni national who later played a central role in the sting operation. The government did not call Al-Anssi as a witness, but the defendants did, as the main thrust of their defense

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was that they were entrapped by Al-Anssi. Al-Anssi testified that in November 2001, prompted by the events of September 11, 2001, he approached the FBI to offer information relating to terrorism. He described meeting with FBI Special Agent Brian Murphy in Washington, D.C. and giving him a list of individuals about whom he claimed to have information, including defendant Al-Moayad.

Al-Anssi testified that he first met Al-Moayad in Yemen in 1995. According to Al-Anssi, they were neighbors in Yemen, and Al-Moayad was the imam of a mosque. Al-Anssi stated that Al-Moayad also ran a bakery and a school.2 Al-Anssi further testified that in 1996 or 1997, he learned from Al-Moayad that he was involved in supplying money, arms, and recruits to terrorist groups. After Al-Anssi relayed this information to Murphy, Murphy enlisted Al-Anssi as his principal informant and used him to help develop the government's case against Al-Moayad, and later Zayed.

Al-Anssi did not offer his assistance for free. Rather, he admitted that he was in difficult financial circumstances when he approached the FBI and that he sought compensation in exchange for information. Al-Anssi testified that in 2001, he was in the United States on a tourist visa. He was heavily in debt, looking for work, and in need of assistance for himself and his family. Al-Anssi initially asked the FBI for 5 million dollars in exchange for his assistance, “ hoping that it will go up, no problem." He also requested United States citizenship and that his family be brought to the United States from Yemen. In describing his motive for seeking compensation, Al-Anssi testified, “ the issue was the truth, the whole issue, and after I chase the terrorists and to bring him here to America, I deserve even 10 million dollars."

Al-Anssi stated that he was paid $100,000 by the FBI for his assistance. However, he believed that he deserved millions, “ [a]nd I expect more than that." Al-Anssi admitted that, because he was upset about his small payment from the FBI, he falsely told the Washington Post that the FBI promised to pay him 5 million dollars. He also testified that in November 2004, in an attempt to coerce the FBI into paying him more money, he set himself on fire in front of the White House. With regard to this incident, Al-Anssi testified that he did not intend to commit suicide, but that he “ wanted to put the government and the world on notice," and that “ [i]t is my right to get as much as I can from the FBI."

As part of its investigation of Al-Moayad, the FBI sent Al-Anssi to Yemen three times in 2002. In January 2002, Murphy sent Al-Anssi to re-establish contact with Al-Moayad, who was then serving as head of an organization called the Al-Aqsa foundation.3 Al-Anssi took a second trip to Yemen in May 2002 to gather information about people in the United States who might be involved in funding terrorist organizations, and to introduce the idea of a wealthy American named “ Saeed" (actually

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another government informant) who wanted to donate money to support militant Islamic jihad 4 and the mujahidin ( i.e., armed fighters). Al-Anssi testified that during that trip, Al-Moayad told him that he had met with Osama bin Laden at some point in Afghanistan. Al-Moayad also gave Al-Anssi a list of contacts in the United States who could send money, introduced Al-Anssi to defendant Zayed, who was his assistant, and gave Al-Anssi a tour of his bakery. Al-Anssi testified that during both of these trips, he took notes of his conversations with Al-Moayad and delivered them to Murphy when he returned to the United States. As discussed below, the admissibility of these notes was a central, hotly contested issue at trial.

Al-Anssi took a third trip to Yemen in August 2002. During that trip, he attended a group wedding hosted by Al-Moayad on September 19, 2002. At the FBI's behest, Al-Anssi videotaped and photographed the wedding. According to Al-Anssi, Al-Moayad asked him to show Saeed the pictures “ to prove that this a part of the effort to prepare the youth for El Jihad." During the wedding, Mohammed Siyam, who was identified at trial as the representative of Hamas in Yemen, gave a speech that Al-Anssi videotaped. Among other things, Siyam said the following:

Thanks be to God ... The Father, the Mujahid Sheikh Abdullah bin Hussein al-Ahmar, benefactor of this honorable celebration, the Honorable Sheikh Mohammed bin Ali Ali al-Moayad, president of the high committee of group weddings. May God join us to him, meaning, may we be joined to him in helping others get married and not to get married ourselves, God willing....

I greet you with Islam's [traditional] greeting: peace be with you and God's mercy and blessings. Either those who organized the celebration found out about the timing of Hamas's operation in Tel Aviv, that it will be today-and this is leaking the news-so they held the wedding here to coincide with the wedding there. An organized operation, God willing, you will hear about it, you will read about it tomorrow in the newspapers and hear about it in the media. It brought down many of the invading occupiers, and thanks be to God, Lord of the universe.

At trial, the government established through the testimony of a witness, a young Scottish law student named Gideon Black, that a suicide bombing occurred on a bus in Tel Aviv that same day. Black was a passenger on the bus along with his cousin Yoni, who was killed in the attack. As discussed below, Black testified at length and in considerable detail about the bombing, and his testimony was a prominent feature of the government's case. The testimony was admitted over the defendants' objections that it was unrelated to the charges against them and enormously prejudicial; the admissibility of the testimony is a central issue in this appeal.

During the August 2002 trip, Al-Moayad gave four paper receipts to Al-Anssi, documenting donations to various organizations. Al-Anssi testified that Al-Moayad told him these groups were fronts for Hamas. Al-Anssi further claimed that Al-Moayad admitted having delivered more than $20 million to Bin Laden and $3.5 million to Hamas in the past. Whether these donations occurred, and when, was a

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significant issue at trial, especially with regard to the alleged contributions to Bin Laden and Al-Qaeda.5

During his third trip to Yemen, Al-Anssi again took notes purportedly memorializing his conversations with Al-Moayad. These notes did not specify when Al-Moayad's alleged donations to Hamas occurred, but suggested that the donations to Al-Qaeda were relatively recent. The notes recorded that the Al-Qaeda donations occurred “ during last few years and before the Sept. 11th 2001." However, during his trial testimony Al-Anssi could not, in contrast to his notes, specify when Al-Moayad allegedly provided money to either Al-Qaeda or Hamas. As to Hamas, Al-Anssi stated that Al-Moayad “ did not give me specific dates." Similarly, with...

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