United States v. Amawi

Decision Date18 October 2012
Docket Number09–4342,Nos. 09–4339,09–4341,09–4344,09–4345,09–4340,11–4079.,s. 09–4339
Citation695 F.3d 457
PartiesUNITED STATES of America, Plaintiff–Appellee/Cross–Appellant, v. Mohammad AMAWI, Marwan El–Hindi, and Wassim I. Mazloum, Defendants–Appellants/Cross–Appellees. United States of America, Plaintiff–Appellee, v. Mohammad Amawi, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ARGUED:Amy B. Cleary, Office of the Federal Public Defender, Cleveland, Ohio, Stephen D. Hartman, Kerger & Hartman, LLC, Toledo, Ohio, David L. Doughten, Cleveland, Ohio, for Appellants/Cross–Appellees. John F. De Pue, United States Department of Justice, Washington, D.C., Thomas E. Getz, United States Attorney's Office, Cleveland, Ohio, for Appellee/Cross–Appellant. Edward G. Bryan, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant in 11–4079. Justin E. Herdman, United States Attorney's Office, Cleveland, Ohio, for Appellee in 11–4079. ON BRIEF:Amy B. Cleary, Office of the Federal Public Defender, Cleveland, Ohio, Stephen D. Hartman, Kerger & Hartman, LLC, Toledo, Ohio, Charles M. Boss, Boss & Vitou, Maumee, Ohio, Deborah K. Rump, Canton, Ohio, David L. Doughten, Cleveland, Ohio, Jeffrey J. Helmick, Toledo, Ohio, for Appellants/Cross–Appellees. John F. De Pue, Paul Ahern, United States Department of Justice, Washington, D.C., Thomas E. Getz, Justin E. Herdman, United States Attorney's Office, Cleveland, Ohio, for Appellee/Cross–Appellant. Edward G. Bryan, Office of the Federal Public Defender, Cleveland, Ohio, Melissa M. Salinas, Office of the Federal Public Defender, Toledo, Ohio, for Appellant in 11–4079. Justin E. Herdman, United States Attorney's Office, Cleveland, Ohio, Thomas E. Getz, John F. De Pue, United States Department of Justice, Washington, D.C., for Appellee in 11–4079.

Before: BOGGS, MOORE, and CLAY, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which CLAY, J., joined and MOORE, J., concurred in the judgment. MOORE, J. (pp. 490–505) delivered a separate concurring opinion.

OPINION

BOGGS, Circuit Judge.

This appeal arises from a jury trial in which the three defendants were convicted of conspiracy to kill and maim persons outside the United States, in violation of 18 U.S.C. § 956(a)(1), and of conspiracy to provide material support to terrorists in furtherance of the killing of U.S. nationals, in violation of 18 U.S.C. § 2339A. In addition, Amawi and El–Hindi were each convicted of two counts of distributing information regarding the manufacture of explosives, destructive devices, and weapons of mass destruction, in violation of 18 U.S.C. § 842(p)(2)(A). Amawi, El–Hindi, and Mazloum were sentenced to below-Guidelines-range terms of 240, 144, and 100 of months of imprisonment, respectively.

There are ten issues on appeal. First, the defendants challenge the district court's decision, pursuant to the Classified Information Procedures Act and Foreign Intelligence Surveillance Act, to delete classified information from discovery. Second, the defendants challenge the sufficiency of the evidence underlying their convictions. Third, the defendants object that their expert witnesses—who would have testified about Islamist culture and social norms in the Middle East—should not have been excluded from testifying. Fourth, Amawi appeals the district court's denial of his motion to delay the trial. Fifth, the defendants challenge the district court's decision not to provide their requested jury instruction concerning the First Amendment. Sixth, El–Hindi appeals the district court's denial of his motion for acquittal as a matter of law based on an entrapment defense. Seventh, Mazloum appeals the district court's denial of his motion to dismiss the indictment against him based on an outrageous-conduct defense. Eighth, Amawi claims that his Miranda rights were violated after his arrest in Jordan while he was being interrogated onboard a jet flying back to the United States. Ninth, the government cross-appeals the sentences imposed, contending that they are both procedurally and substantively unreasonable. Tenth, Amawi appeals the district court's denial of his motion for a new trial based on allegations of newly discovered evidence regarding the alleged identity of a Syrian contact.

We affirm all opinions and judgments of the district court.

I. Facts

This case concerns the actions of defendants Mohammad Amawi, Marwan El–Hindi, and Wassim Mazloum in connection with Darren Griffin, a paid informant for the FBI. After the attacks of September 11, 2001, the FBI assigned Griffin to embed himself in the Muslim community in Toledo, Ohio. Griffin enrolled in classes at a local mosque and obtained employment with a Muslim charity. Griffin described himself as an “ex-Green Beret, disenchanted with the United States[, who] did not agree with [American] foreign policy.”

Griffin's contact with El–Hindi began in September 2002. El–Hindi approached Griffin after meeting him at a mosque and asked about the feasibility of kidnaping an Israeli soldier or politician. Over the next two years, Griffin developed a relationship with El–Hindi. Griffin expressed an interest in training others for “jihad” and said he would create a security company as a front. In June 2004, El–Hindi informed Griffin that he had wanted Griffin to train him and “two recruits” (Khaleel Ahmed and his cousin, Zubair Ahmed) as “Islamic extremists for jihad.” Griffin spoke with the Ahmeds by phone, but the training never materialized.

Griffin first encountered Amawi at the same mosque where he met El–Hindi. On June 30, 2004, Griffin went to Amawi's home. Griffin stated that he wanted to fight for jihad against American forces in Iraq. Amawi also expressed a desire to fight with the jihadists and martyr himself, though he said the “conditions for jihad” were not right in Iraq. On October 14, 2004, the pair again met at Amawi's home. Griffin showed Amawi various videos concerning fundamentalist Islamist terrorism, Usama Bin Laden, and the attacks on the Pentagon and the World Trade Center.

On October 21, 2004, Amawi suggested to Griffin the possibility of recruiting Mazloum for jihad training. Amawi arranged a meeting with Mazloum and Griffin on October 24, 2004. At this meeting, Mazloum agreed to participate in Griffin's planned jihad training—including bomb-making, weapons training, and certain paramilitary tactics. On November 17, 2004, Amawi brought Mazloum to Griffin's apartment.

On November 23, 2004, and December 13, 2004, Griffin visited Amawi's apartment, where the two watched jihadist videos. Amawi expressed admiration for a sniper in a video who claimed to have killed two Americans. On January 10, 2005, Griffin and Amawi watched more jihadist videos at Amawi's home, including a video demonstrating how to construct a bomb vest. On January 20, 2005, Griffin offered to provide Amawi with firearm instructions after Amawi indicated that he declined an opportunity to travel to Iraq due to his lack of training. The next day the pair met at a shooting range, where Griffin trained Amawi in the use of handguns. Amawi and Griffin met several times between January 27 and January 30, 2005. Griffin suggested that they provide laptops to brothers in Iraq, and Amawi agreed to transfer jihadist materials that Amawi had obtained onto CDs to provide instruction to the jihadists.

On February 2, 2005, Griffin brought El–Hindi to Amawi's apartment. This was the first time Amawi and El–Hindi met. The trio watched jihadist videos. El–Hindi, watching a video about explosives, stated that we will work with some of that stuff” and asked Amawi for a copy of the videos. On February 6, 2005, Griffin met Amawi at Amawi's apartment and asked him to transfer jihadist videos to Griffin, including the video about building a bomb vest. On February 8, 2005, Griffin met El–Hindi at his home. El–Hindi showed Griffin where he could download jihadist videos from the internet.

On February 14, 2005, El–Hindi and Griffin met Amawi at his office at AZ Travel. After Griffin suggested that they recruit other brothers for training, Amawi suggested that they recruit Wassim Mazloum and Mazloum's brother. On February 16, 2005, Griffin met Mazloum at Amawi's apartment, and the trio traveled to El–Hindi's home. This was the first and only time that all four were present together. After they all arrived, Griffin explained that he would train them but that they would have to pretend to be working for his security firm. Mazloum stated that he was ready for jihad training and expressed an interest in going to Iraq. Amawi suggested he knew another person who could be recruited and expressed an interest in going to Jordan or Iraq. El–Hindi offered to seek grants to fund the operation. The quartet agreed to begin training regardless of whether others could be recruited. El–Hindi sought sniper training. Mazloum said that he wanted to learn how to make bombs. Amawi thought it was important to learn how to make explosives and sought sniper training. Griffin offered to start with handgun training and stated that it was not practical to begin with explosives. The group then watched a series of jihadist videos. The four never met together after this meeting.

On February 18, 2005, El–Hindi gave Griffin an email from “Just Jeans,” a company El–Hindi thought was a cover for a jihadist website. One week later, on February 26, 2005, El–Hindi and Griffin met again at El–Hindi's home. El–Hindi showed Griffin photos of the placement of a battery-detonated improvised explosive device (“IED”) used to destroy U.S. military vehicles.

On March 14, 2005, Griffin and Amawi met at AZ Travel, and Amawi said that he was anxious to travel to Jordan—his lack of training was the only reason holding him back and preventing him from joining the jihad immediately.

Griffin met with El–Hindi on March 20,...

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