U.S. v. Abu–jihaad

• Decision Date: 20 December 2010
• Docket Number: 09–1384–cr (XAP).,Docket Nos. 09–1375–cr (L)
• Parties: UNITED STATES of America, Appellee,v.Hassan ABU–JIHAAD, also known as Paul R. Hall, Defendant–Appellant.*
• Court: U.S. Court of Appeals — Second Circuit

630 F.3d 102

UNITED STATES of America, Appellee,

v.Hassan ABU–JIHAAD, also known as Paul R. Hall, Defendant–Appellant.*

Docket Nos. 09–1375–cr (L)

09–1384–cr (XAP).

United States Court of Appeals, Second Circuit.

Submitted: April 29, 2010.Decided: Dec. 20, 2010.

Dan E. LaBelle, Halloran & Sage LLP, Westport, CT, for Defendant–Appellant.William J. Nardini, Alexis Collins, Assistant United States Attorneys (Stephen Reynolds, Assistant United States Attorney; David Kris, Assistant Attorney General, National Security Division; John De Pue, Senior Litigation Counsel, Counterterrorism Section, U.S. Department of Justice, Washington, D.C., on the brief), on behalf of Nora R. Dannehy, United States Attorney for the District of Connecticut, New Haven, CT, for Appellee.Before: RAGGI, HALL, and CHIN, Circuit Judges.REENA RAGGI, Circuit Judge:

United States citizen Hassan Abu–Jihaad, whose birth name is Paul Raphael Hall, appeals from a judgment of conviction entered in the United States District Court for the District of Connecticut (Mark R. Kravitz, Judge ) on April 3, 2009, after a jury found him guilty of having communicated national defense information, specifically, the anticipated movements of a United States Navy battlegroup being deployed to the Persian Gulf, to unauthorized persons in violation of 18 U.S.C. § 793(d). Presently serving a ten-year prison term for that crime, Abu–Jihaad contends that (1) inculpatory evidence obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., should have been suppressed because (a) that statute is unconstitutional and (b) in any event, was not complied with in this case; (2) erroneous evidentiary rulings deprived him of a fair trial; (3) the trial evidence was insufficient to support conviction; and (4) the district court abused its discretion in entering protective orders pursuant to the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3, §§ 1–16.

We identify no merit in any of these arguments and, accordingly, we affirm the judgment of conviction.

I. Background

In 1997, defendant Paul Raphael Hall changed his name to “Hassan Abu–Jihaad,” the surname of which translates to “Father of Jihad.” ¹ This curious choice appears not to have raised any concern in the United States Navy when, in January 1998, Abu–Jihaad enlisted.² Indeed, over the course of Abu–Jihaad's military service, from 1998–2002, the Navy would clear defendant to receive classified national defense information. The Navy's trust was misplaced. As the jury found, sometime in early 2001, Abu–Jihaad leaked classified information about the movements of Navy ships destined for the Persian Gulf to unauthorized persons supportive of jihad. Because Abu–Jihaad challenges the sufficiency of the evidence supporting the jury verdict, we discuss that evidence in some detail.

A. Discovery of the Classified Information in a London Search

The first link in the chain of circumstantial evidence proving Abu–Jihaad's guilt was discovered in London where, on December 2, 2003, British authorities conducted searches of various locations associated with Babar Ahmad, an information technologist at London's Imperial College with ties to Azzam Publications.

1. Azzam Publications' Support for Jihad

London-based Azzam Publications (“Azzam”) was an organization that in 2001 maintained a number of websites that glorified martyrdom in the name of jihad and the violent exploits of mujahideen around the world. See United States v. Abu–Jihaad, 600 F.Supp.2d 362, 366 (D.Conn.2009) (reviewing trial evidence in denying post-verdict motions for judgment of acquittal or new trial). ³ Its name paid tribute to Sheikh Abdullah Azzam, a leader in urging the revival of violent jihad in the twentieth century. In addition to marketing jihadist audio and video recordings on its websites, Azzam offered English translations of books written by Sheikh Azzam. It also provided access to the 1996 fatwa issued by Osama bin Laden, entitled a “Declaration of War Against the Americans Occupying the Land of the Two Holy Places,” which charged Muslims to take up arms against the United States to rid the Arabian Peninsula of “infidels.” Id. at 367. It solicited assistance for jihadist groups, for example, requesting that readers aid the Taliban “by sending money or gas masks, or traveling to Afghanistan to provide battlefield medical services” in anticipation of an offense by American and Russian forces in retaliation for the October 2000 attack on the U.S.S. Cole. Id. at 366–67. ⁴ One of Azzam's most popular postings instructed Muslims living in Western countries as to how they, too, could train as mujahideen.

2. The December 2, 2003 Discovery of the Battlegroup Document

In the course of searching Babar Ahmad's bedroom on December 2, British authorities discovered a computer disk containing materials related to Azzam. ⁵ Of particular significance to this case was a file denominated “letter.doc,” which contained a three-page unsigned document describing the anticipated spring 2001 deployment of ten U.S. Navy ships carrying approximately 15,000 sailors and marines from the Pacific coast of the United States to the Persian Gulf (“the Battlegroup Document”). Id. at 367. The significance of the Battlegroup Document is best illustrated by quoting it directly.⁶ The first page states as follows:

In the coming days the United States will be deploying a large naval/marine force to the Middle East.

This will be a two group force: the Battle Group (BG) and the Amphibious Readiness Group (ARG)—these groups will be replacing the already deployed groups in the gulf.

The BG mission is to hold up the sanctions against Iraq, e.g. patrolling the No–Fly Zone, carry out Maritime Interception Operations (MIO) or launch strikes.

There is a possibility that the ships and submarines that are capable will carry out a strike against Afghanistan. Main targets: Usama and the Mujahideen, Taliban, etc.

A two star admiral, COMCRUDESRON 1 (his title), a high ranking officer of the BG said that “there will be certain ships of this BG sitting off the coast of Pakistan with ‘launch pads.’ ”

Most of the ships that are part of the BG will deploy on March 15 2001 leaving their home ports out of California and Washington State. They will meet up with the other ships that are part of the BG which are stationed in Hawaii. Their first port stop is Hawaii on March 20 2001, where some ships will load Tomahawk D missiles. The same missles used on Afganistan and Sudan. It has a warhead and 166 [mm?] fragment bomblets. Then the whole BG will head towards Austrailia. The main ship with high ranking officials will be at Sydney on April 6 2001, other ships—Melbourne, Perth, Bunbary etc. The BG will be going through the straits of Hormuz on the April 29 2001 at night, cutting off certain “infocoms” and “Emcoms” to divert their enemies on how many ships are actually coming through. This will be a night time set-up.

Gov't Ex. 1.

Immediately beneath this text is a diagram showing a two-column formation in which identified ships in the battlegroup, including the aircraft carrier U.S.S. Constellation ⁷ and the destroyer U.S.S. Benfold—on which Abu–Jihaad served as a signalman—were expected to enter the Strait of Hormuz. Following the diagram are brief descriptions of the capabilities of each ship. For example, with respect to the battlegroup ships, the document states:

1. USS Constellation (CV 64) Kitty Hawk Class carrier

Personnel: 5,500 to 6,000

Special team: onboard Explosive Ordnance Disposal team (EOD)

Mission: No-fly zone, patrol, etc.

2. USS Chosin (CG–65) Ticonderoga class

Personnel: 350 to 400

Specialisation: anti-air warfare

Plus carrier escort all these ships

3. Kinkaid (DD965) Sprvance class3

Personnel: 300–350

Specialisation: MIO etc

4. USS Benfold (DDG–65) Arleigh Burke class

Personnel: 300

Multi-capable ship

...

7. USS Rainer (AOE–7)

Personnel: 400 to 500

Ammo and fuel replenishing ship for the BG.

Id. With respect to the Amphibious Readiness Group, the document reveals that three ships were expected to deploy “out of homeport San Diego, March 14 2001” with a port visit in South–East Asia, specifically, in Thailand and Singapore, before heading to the Middle East. Id. Among the ships described is the following:

1. USS BOXER (LHD9) com ship, Wasp class

Personnel: 1,500 sailors, 2,500 marines; high ranging officials abroad; also special forces, Navy Seals and Marines Special Unit

Reconnaissance ships carries lots of helos [helicopters?] all kinds.

Id.

The document concludes by identifying the battlegroup's vulnerabilities, highlighting its operation schedule in the Persian Gulf, and then exhorting the recipient to destroy the communication:

Weakness:

They have nothing to stop a small craft with RPG etc, except their Seals' stinger missiles.

Deploy ops in Gulf 29 April—04 October.

29th APRIL is more likely the day through the Straits. For the whole of March is tax free—a moral booster. Many sailors do not like the Gulf.

Please destroy message.

Id.

Based on forensic analysis of the totality of evidence obtained in the ensuing investigation, a federal agent testified at trial that the disk containing the Battlegroup Document appeared to have been created by British citizen Syed Talha Ahsan, an Azzam employee who handled product backlog. See United States v. Abu–Jihaad, 600 F.Supp.2d at 369.⁸ Further, although the Battlegroup Document was created on April 2, 2001, the diagram depicting the battlegroup's formation was not embedded in the file until April 12, 2001, the date the document was last saved. See id. at 370. On that date, the author field in the document's properties was changed from “S A Ahsan” to “Jon Greene.” Id. Forensic analysis revealed that “wiping” software had been used to remove other material from the disk, but federal authorities were unable to recover that material. Id.

In the course of their larger investigation,...