United States v. Hassan

• Citation: 742 F.3d 104
• Decision Date: 04 February 2014
• Docket Number: 12–4063,Nos. 12–4067,12–4061.,s. 12–4067
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mohammad Omar Aly HASSAN, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Ziyad Yaghi, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

742 F.3d 104

UNITED STATES of America, Plaintiff–Appellee,

v.Mohammad Omar Aly HASSAN, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Ziyad Yaghi, Defendant–Appellant.

Nos. 12–4067, 12–4063, 12–4061.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 19, 2013.

Decided: Feb. 4, 2014.

ARGUED:Robert Joseph Boyle, Robert J. Boyle, Attorney at Law, New York, New York; Robert Daniel Boyce, Nexsen Pruet, Raleigh, North Carolina; John Clark Fischer, Randolph & Fischer, Winston–Salem, North Carolina, for Appellants. Jason Michael Kellhofer, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Kirsten E. Small, Nexsen Pruet, PLLC, Raleigh, North Carolina, for Appellant Mohammad Omar Aly Hassan. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Kristine L. Fritz, Assistant United States Attorneys, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before WILKINSON and KING, Circuit Judges, and SAMUEL G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge WILKINSON and Judge WILSON joined.

KING, Circuit Judge:

The appellants in these consolidated proceedings, Mohammad Omar Aly Hassan, Ziyad Yaghi, and Hysen Sherifi, were tried jointly in the Eastern District of North Carolina and convicted of several offenses arising from terrorism activities. On appeal, the trio presents myriad challenges to their convictions and sentences. As explained below, we reject the appellants' various contentions of error and affirm.

I.

A.

On July 22, 2009, the federal grand jury in eastern North Carolina returned an indictment against the appellants and five others, alleging multiple terrorism conspiracies and related offenses. Bench warrants were issued for all eight defendants on July 23, 2009, and, four days later, seven were arrested. In September 2009, a superseding indictment was returned, followed on November 24, 2010, by the operative second superseding indictment (the “Indictment”). The Indictment alleged the following offenses that are particularly relevant to these appeals:

• Count One charged the eight defendants with conspiring to violate 18 U.S.C. § 2339A, that is, to provide material support and resources for violations of 18 U.S.C. § 956 (the “Count One conspiracy”); • Count Two charged the eight defendants with the conspiracy offense of violating 18 U.S.C. § 956(a), i.e., to commit outside the United States acts that would constitute murder, kidnapping, and maiming if committed within the United States (the “Count Two conspiracy”);

• Counts Four and Eight charged conspiracy ringleader Daniel Boyd (“Boyd”), his son Zakariya, and appellant Hysen Sherifi with possessing firearms in furtherance of a crime of violence—particularly, the Count Two conspiracy—in contravention of 18 U.S.C. § 924(c); and

• Count Eleven charged Boyd and Sherifi with conspiring to kill members of the uniformed services of the United States in attacks on military personnel and installations in Virginia and elsewhere, in violation of 18 U.S.C. § 1117 (the “Count Eleven conspiracy”).

None of the other charges in the Indictment were lodged against any of the appellants. Count Three charged Boyd with receiving a firearm and ammunition in interstate commerce, with knowledge that the offenses set forth in Counts One and Two would be committed therewith, in contravention of 18 U.S.C. § 924(b). Counts Five, Nine, and Ten charged Boyd (and in Count Five, Boyd's son Dylan) with knowingly selling firearms and ammunition to a felon, in violation of 18 U.S.C. §§ 922(d)(1) and 924. Counts Six and Seven charged Boyd with making false statements to the government by misrepresenting his plans to meet others—including appellants Mohammad Omar Aly Hassan and Ziyad Yaghi—when Boyd travelled to the Middle East in 2007, in contravention of 18 U.S.C. § 1001(a)(2). In Counts Twelve and Thirteen, defendant Anes Subasic was charged with knowingly making false statements to procure his naturalization as a citizen, in violation of 18 U.S.C. § 1425(a).

On February 9, 2011, Boyd pleaded guilty to the Count One and Count Two conspiracies, and, pursuant to his plea agreement with the government, Counts Three through Eleven were dismissed as to him. Dylan and Zakariya Boyd each pleaded guilty to the Count One conspiracy, and, in exchange, the other charges against them were dismissed. Boyd was sentenced to 216 months in prison, and his sons Dylan and Zakariya were sentenced to 84 months and 93 months, respectively. Subasic was tried separately from the appellants, convicted of the four offenses alleged against him, and sentenced to 360 months. As for the appellants, Hassan was convicted of the Count One conspiracy and sentenced to 180 months; Yaghi was convicted of the Count One and Count Two conspiracies and sentenced to 380 months; and Sherifi was convicted of the Count One, Count Two, and Count Eleven conspiracies, plus Counts Four and Eight, and he was sentenced to 540 months.¹

B.

The parties and the trial court were in substantial agreement on the essential elements of the offenses tried before the jury.² First, to obtain a conviction under 18 U.S.C. § 2339A for the Count One conspiracy, the government was required to prove as to each appellant: (1) that he entered into a conspiracy; (2) that the objective of the conspiracy was to provide material support or resources; and (3) that he then knew and intended that the provision of such material support or resources would be used in preparation for, or in carrying out, a violation of 18 U.S.C. § 956. See United States v. Chandia, 675 F.3d 329, 332 n. 1 (4th Cir.2012). “[M]aterial support or resources,” as used in § 2339A, includes currency and other property, training, weapons, expert advice or assistance and personnel. See§ 2339A(b)(1). To prove the Count Two conspiracy alleged under 18 U.S.C. § 956(a), the government was obliged to show as to each appellant: (1) that he entered into a conspiracy; (2) knowing and intending that the objective of the conspiracy was murder, kidnapping, or maiming outside the United States; (3) that the conspiracy was entered into within the United States; and (4) that a conspirator, not necessarily a defendant or an appellant, committed an overt act in furtherance of the conspiracy within the jurisdiction of the United States.³

The Indictment identified the purposes and objects of the Count One and Count Two conspiracies, which were generally to advance violent jihad, support and participate in terrorist activities outside the United States, and commit acts of murder, kidnapping, and maiming outside the United States. The manner and means by which the conspiratorial objects were to be accomplished by the defendants and their conspirators included the following:

• To prepare to become “mujahideen” and die “shahid”—that is, as martyrs in furtherance of violent jihad;

• To radicalize others, mostly young Muslims or converts to Islam, to believe in “fard'ayn,” the idea that violent jihad is a personal obligation on the part of every good Muslim;

• To offer financing and training in weapons, and to assist in arranging overseas travel and contacts so that others could wage violent jihad;

• To raise money to support efforts in training and equipping personnel, and to disguise the destination of such monies from the donors; and

• To obtain assault weapons such as the AK–47, and to develop familiarity and skills with the weapons of choice used by mujahideen in Afghanistan and elsewhere.

Multiple overt acts were specifically alleged in the Indictment that relate to the Count One and Count Two conspiracies, including, inter alia:

• In late 2006, Yaghi travelled to Jordan to engage in violent jihad;

• In late 2006, Boyd purchased a Bushmaster carbine rifle and magazine;

• In early 2007, Boyd purchased a Ruger mini 14 long gun;

• In early 2007, Boyd purchased airline tickets to Israel from the United States for himself and his sons;

• In early 2007, plane tickets were purchased for Yaghi and Hassan to travel from the United States to Israel;

• In June 2007, Boyd, his son Zakariya, Yaghi, and Hassan departed Raleigh, North Carolina, for Israel. Having failed in their attempts to engage in violent jihad, the four men returned to the United States in late July 2007;

• Upon his arrival back in the United States, Boyd lied to federal agents by denying that he had intended to meet Hassan and Yaghi in Israel;

• In February 2008, Boyd solicited money to fund the travel of “brothers” overseas to engage in violent jihad;

• In June 2008, Boyd accepted $500 in cash from Sherifi to help fund violent jihad;

• In June 2008, Boyd showed Sherifi how to use a Kalashnikov AK–47;

• In June 2008, Sherifi departed North Carolina for Kosovo to engage in violent jihad;

• In November 2008, Boyd purchased a Mossburg rifle, a .357 revolver, and a Century Arms rifle;

• In early 2009, Boyd purchased an Ishmash SAGA .308 rifle, three Century Arms rifles, a Ruger 5.56 rifle, and a Smith & Wesson .223 rifle;

• In April 2009, Sherifi returned from Kosovo to the United States for the purpose of soliciting funds and personnel to support the mujahideen; and

• In June and July 2009, Boyd, Sherifi, and Zakariya Boyd trained in military tactics and the use of weapons in Caswell County, North Carolina.

With respect to the essential elements of Counts Four and Eight—which were tried against Sherifi alone—the government was required to establish: (1) that Sherifi knowingly possessed a firearm on or about June 10, 2009, and again on or about July 7, 2009; and (2) that he did so to further the crime of violence alleged in Count Two. See18 U.S.C. § 924(c).⁴ Those charges arose from the weapons training sessions conducted by Boyd and others in 2009 in Caswell County.

Finally, to secure Sherifi's conviction under 18 U.S.C....