United States v. Khan

• Citation: 794 F.3d 1288
• Decision Date: 23 July 2015
• Docket Number: No. 13–14048.,13–14048.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Hafiz Muhammad Sher Ali KHAN, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

794 F.3d 1288

UNITED STATES of America, Plaintiff–Appellee

v.Hafiz Muhammad Sher Ali KHAN, Defendant–Appellant.

No. 13–14048.

United States Court of Appeals, Eleventh Circuit.

July 23, 2015.

Kathleen Mary Salyer, Anne Ruth Schultz, Wifredo A. Ferrer, John C. Shipley, Assistant U.S. Attorney, Michael P. Sullivan, Sivashree Sundaram, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Khurrum B. Wahid, Wahid Vizcaino, L.L.P., Pompano Beach, FL, Daniel O. Hartenstine, Carli Rodriguez–Feo, U.S. DOJ, Washington, DC, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:11–cr–20331–RNS–1.

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

Opinion

TJOFLAT, Circuit Judge:

This appeal concerns the challenging twenty-nine day trial of Hafiz Muhammad Sher Ali Khan. A federal grand jury indicted Khan in 2011 on terrorism-related charges. At trial, the Government presented evidence demonstrating Khan's involvement in the transfer of money to members of the Tehrik-e Taliban Pakistan, a foreign terrorist organization also known as the Pakistani Taliban.¹ The jury convicted Khan on all counts: conspiring to provide (Count 1), and providing or attempting to provide (Count 3), material support to terrorists, in violation of 18 U.S.C. § 2339A ; and conspiring to provide (Count 2), and providing or attempting to provide (Count 4), material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B. Khan now appeals his convictions. After careful review, we affirm.

I.

Khan was born approximately eighty years ago in the Swat Valley, a region of northern Pakistan located near the Afghanistan–Pakistan border. Since 1967, Khan has owned a madrassa in his native village.² For more than four decades, his madrassa has taught local children about the Quran and other religious topics. Over time, Khan's madrassa grew. It eventually expanded into a boarding school that attracted children from surrounding villages. Most of Khan's students were poor: none paid the cost of tuition, room, or board. To finance the school's day-to-day operations, Khan relied on donations from relatives and others interested in helping the madrassa flourish. This was his life's work. So central is his role as a spiritual leader that it is even reflected in his first name—“Hafiz” is a title he earned for having memorized the Quran in its entirety.

But after six decades in Pakistan, Khan decided to leave. He came to the United States in 1994 and took up residence in Miami, Florida. He was naturalized as an American citizen in 2000. Prior to his arrest in 2011, Khan was an imam at a local mosque.

Khan's absence from Pakistan did not signal his madrassa's end. Save for a period of time in 2009 when the Pakistani government temporarily shut the school down for its alleged connections to the Taliban, the madrassa still maintained operations in the Swat Valley. And Khan remained actively involved. For example, he carried on a legal dispute in Pakistan over a parcel of land he sought to acquire in the hopes of building an addition to the madrassa.

He sent money, too. Using local financial institutions, Khan wired money to personal bank accounts he kept at the National Bank of Pakistan. He then instructed friends and relatives in Pakistan who had access to these accounts to distribute the money on his behalf. Sometimes, the remittances would go toward financing the madrassa. For instance, Khan wired money to pay the salaries owed to the madrassa's teachers, make repairs to the building, and buy oil to run the school's generator. Other times, the money went to injured or incarcerated Taliban fighters. Indeed, evidence admitted against Khan at trial revealed that Khan leveraged his relationship with the madrassa to support the Pakistani Taliban.

While Khan shuffled funds among accounts at home and abroad, the Government watched—and listened. The Government's investigation began in late 2007. It produced three types of evidence. First, pursuant to the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1801 et seq., the Government intercepted approximately 35,000 telephone calls between Khan and his friends and relatives in Pakistan. Second, the Government employed an informant, who—posing as a wealthy Taliban sympathizer—ingratiated himself with Khan by helping Khan run errands and attend medical appointments, all while surreptitiously recording their conversations. Third, the Government subpoenaed financial records from the banking institutions Khan used to transfer his money from the United States to Pakistan.

In May 2011, Khan was indicted along with five codefendants: two of his sons, Irfan Khan and Izhar Khan; his daughter, Amina Khan; his grandson, Alam Zeb; and his business associate, Ali Rehman. Ali Rehman, Alam Zeb, and Amina Khan—all of whom live in Pakistan—remain untried. Efforts to extradite them to the United States failed. The Government dismissed charges against Irfan Khan prior to trial, and the District Court acquitted Izhar Khan following the Government's case-in-chief. Hafiz Khan's case, however, proceeded. Following trial, the jury convicted Khan on all counts of the indictment, and the District Court sentenced Khan to twenty-five years in prison.³

II.

Khan advances three arguments on appeal. First, Khan says the District Court abused its discretion by permitting the Government's translator to add certain words, in brackets, to translations of intercepted telephone calls between Khan and his contacts in Pakistan. Second, Khan claims the District Court abused its discretion by allowing the Government's first witness at trial, FBI Agent Michael Ferlazzo, to testify as an expert witness without the proper notice or foundation; by letting Ferlazzo testify as a summary witness; and by limiting the scope of Khan's cross-examination of Ferlazzo. And third, Khan contends the District Court abused its discretion by denying a continuance or a mistrial after the Internet connection supporting live-video-feed testimony of defense witnesses from Pakistan failed.⁴

We address each argument in turn.

III.

Khan first argues that the District Court erred by permitting the Government's translator to add bracketed words when translating the FISA-intercepted telephone calls between Khan and Khan's relatives in Pakistan. “We review evidentiary rulings for an abuse of discretion.” United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir.2005). “A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir.2004) (quotation marks omitted).

A.

Khan's conversations anchored the Government's case-in-chief, his own words serving as powerful evidence of his guilt. After all, the Government's evidence indicated that Khan routinely gave specific instructions that his money be funneled to aid Taliban fighters. Because Khan spoke in Pashto and Urdu, the Government relied on translations performed by FBI-certified linguists to decipher Khan's conversations.

During discovery, the Government provided the defense with written translations of approximately two-hundred telephone calls and forty in-person conversations. The defense submitted specific objections to the way in which certain recordings were translated; the FBI linguists reviewed the objections, accepted some, and rejected others. The parties eventually stipulated “to the foundational requirements for admitting the unclassified calls and transcripts” while “reserving any non-foundational objections based upon hearsay, relevance and the like” and “allowing disputes about the translation of particular words and phrases to be aired ... through cross-examination or witness testimony consistent with the rules.” The District Court then entered an order finding that the foundation requirements for admitting the transcripts had been met and that they were not hearsay.

Soon afterwards—and prior to trial—Khan filed a motion to strike translations featuring bracketed words, that is, words that were not actually spoken during the audio recordings. Khan argued that these insertions improperly “invade[d] the province of the jury” because “[w]hen a translator adds in brackets what was not heard on the audio [the translator is] assuming what the speaker intended to [say] when [the speaker] made a statement.”⁵

The District Court denied Khan's motion. In so doing, however, it ordered the Government “to call a government translator as a witness to explain based upon their expertise how the bracketed words were prepared.”

At trial, the Government moved to enter the transcripts into evidence. The defense objected, arguing that the translations were not “fairly and accurately transcribed.” Outside the presence of the jury, the District Court overruled the objection. The District Court explained:

If somebody doesn't agree with a translation, then if that translator who prepared it is on the stand, as part of your cross-examination you could ask them about that. If you want to present a translator to contest that you can do that [as well]....

The District Court also reiterated its pretrial order that the Government call a translator to explain the significance of the bracketed words.

In keeping with this directive, the Government called Moazzam Shah, an FBI translator who worked on Khan's case. The Government asked Shah to explain why he used brackets in some of his translations. Shah responded that “sometimes during the course of translating from one language to another, you come across a word that signifies a concept or does not have a direct meaning in the target language” and that a literal translation would therefore “mislead an English reader.” Shah explained that, in performing the translations, he never replaced words that were spoken during the course of the...