U.S. v. Abu-Jihaad

• Decision Date: 04 March 2009
• Docket Number: No. 3:07CR57 (MRK).,3:07CR57 (MRK).
• Citation: 600 F.Supp.2d 362
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Hassan ABU-JIHAAD.

600 F.Supp.2d 362

UNITED STATES of America v. Hassan ABU-JIHAAD.

No. 3:07CR57 (MRK).

United States District Court, D. Connecticut.

March 4, 2009.

COPYRIGHT MATERIAL OMITTED

Alexis L. Collins, U.S. Dept. of Justice, Counterterrorism, Andrew Levchuk, Richard D. Green, U.S. Department of Justice, Crime and Intellectual Property Section, Washington, DC, Kevin J. O'Connor, William J. Nardini, U.S. Attorney's Office, New Haven, CT, Stephen Benjamin Reynolds, U.S. Attorney's Office, Bridgeport, CT, for United States of America.

Dan E. Labelle, Halloran & Sage, Westport, CT, Robert Gerard Golger, Quatrella & Rizio, Fairfield, CT, for Hassan Abu-Jihaad.

MEMORANDUM OF DECISION

MARK R. KRAVITZ, District Judge.

Following a six-day trial in March 2008, a jury convicted Defendant Hassan Abu-Jihaad on two charges: (1) disclosing national defense information to those not entitled to receive it in violation of 18 U.S.C. § 793(d); and (2) providing material support to terrorists in violation of 18 U.S.C. § 2339A and § 2. The Government alleged that in 2001, while Mr. Abu-Jihaad was serving as a U.S. Navy Signalman aboard the destroyer, the U.S.S. Benfold, he disclosed classified information regarding the movement of the Fifth Fleet Battle Group, which included the aircraft carrier, the U.S.S. Constellation, to individuals in London associated with Azzam Publications, an organization that the Government alleged supported violent Islamic jihad. According to the Government, Mr. Abu-Jihaad knew or intended that the information he disclosed would be used to kill United States nationals. By its verdict, the jury agreed with the Government's assertions. Mr. Abu-Jihaad now moves for judgment of acquittal and for a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure.¹ See Motion for Judgment of Acquittal [doc. #268]; Motion for New Trial [doc. # 266].

Mr. Abu-Jihaad's post-verdict motions are neither pro forma nor insubstantial. That is apparent from, among other things, the Government's 112-page response to the motions. Since the Government's case rested entirely on circumstantial evidence, and there was evidence in the record that favored Mr. Abu-Jihaad, his motions raise important questions regarding the quantum of evidence necessary to support a jury's finding of guilt beyond a reasonable doubt, as well as the proper role of the court and the jury in our criminal justice system. And, of course, these motions arise in a case that from its inception has tested whether an individual accused of terrorism can receive a full and fair trial in the federal court system.

At the risk of sounding self serving, the Court is firmly convinced that Mr. Abu-Jihaad received a full, fair, and impartial trial. Mr. Abu-Jihaad was represented by two experienced criminal defense lawyers, who were given access to experts, consultants, and investigators and to volumes of information provided by the Government in discovery. The Court decided numerous issues in advance of trial, ruling for the Government on some issues and for Mr. Abu-Jihaad on others. The jury was selected from a panel of more than 500 individuals who answered detailed questionnaires about their views and possible prejudices. Both sides agreed on each for-cause strike of potential jurors. Befitting the experience of the lawyers involved, the evidence at trial was submitted largely without objection and without dispute. The same was true of the Court's jury instructions. The jury listened carefully to the evidence presented and to the Court's instructions, and they deliberated conscientiously. For these reasons, among others discussed below, the Court does not believe a new trial is necessary or appropriate.

Instead, the central issue raised by the pending motions is whether the evidence presented by the parties would permit a rational jury to find Mr. Abu-Jihaad guilty of both charges beyond a reasonable doubt. In particular, the motions focus on the proper inferences that could be drawn by a rational juror from the circumstantial evidence presented and whether the circumstantial support for a theory of guilt was equal to or nearly equal to a theory of innocence. For if so, a reasonable jury must necessarily entertain a reasonable doubt. After careful consideration, the Court believes that the evidence was sufficient to support a jury verdict beyond a reasonable doubt that Mr. Abu-Jihaad disclosed classified information. However, for reasons largely related to the language of the governing statute, the Court concludes that Mr. Abu-Jihaad's conviction on the material support charge should be set aside. The Court is acutely aware that its decision will not be the last word on these important issues.

Before turning to the pending motions, the Court would be remiss if it did not pause to note that throughout this case, it has been assisted by extremely able counsel on both sides. They have worked tirelessly and with great professionalism in support of their respective positions and to present the Court and the jury with all the tools needed to decide this case properly. The Court is grateful to them for their skill, sensitivity, civility, and candor. In the highest tradition, counsel for both the Government and Mr. Abu-Jihaad were scrupulously fair and candid with the Court and each other. The Court is particularly grateful to defense counsel, who volunteered for this difficult assignment and will not be properly reimbursed for all of the time they devoted to this case.

I.

The following description of the evidence at trial is related in the light most favorable to the verdict. See United States v. Triumph Capital Group, Inc., 544 F.3d 149, 158 (2d Cir.2008) (quoting United States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002)) (on judgment of acquittal, stating that courts must view evidence in the light most favorable to the Government). While there is much dispute about the proper inferences to be drawn from the evidence, there is no dispute about the testimony and evidence presented at trial. The Court has taken some pains in this initial section to describe the evidence presented in considerable detail so as to aid in understanding the Court's legal conclusions.

Azzam Publications. In late September 2001, Supervisory Special Agent Craig Bowling of the Department of Homeland Security began investigating a group known as Azzam Publications ("Azzam"), which operated a number of related websites, including www.qoqaz.net ("qoqaz" meaning "Caucusus" in Arabic), www.azzam.co.uk, and its principal website, www.azzam.com. These websites were hosted in places like New York, Malaysia, Ireland, the United Kingdom, and other parts of the world. Azzam was brought to the Government's attention by a Connecticut company that was then hosting www.azzam.com ("the website"). The investigation ultimately included a number of search warrants, subpoenas, and court orders allowing the retrieval of Azzam's computer records. American and British authorities eventually began collaborating on the investigation, and some searches were undertaken in the United Kingdom in response to treaty requests by the United States.

From 1997 through 2002, the family of Azzam websites contained information that promoted violent Islamic jihad, or "holy war." Evan Kohlmann, an expert in international terrorism and the internet, explained that Azzam advertised itself as a provider of breaking news about conflict areas like Afghanistan, Bosnia, and Chechnya.² Azzam marketed English translations of books written by its namesake, Sheikh Abdullah Azzam, who was instrumental in reviving the idea of violent jihad in the 20th century. Azzam glorified the cause of martyrdom in the name of jihad by telling the stories of martyrs. These biographies, according to Mr. Kohlmann, were "meant to show how individuals with no real connection to the jihad or to the mujahideen, including people living in western European countries and North America, people who had lived relatively normal lives, could all of a sudden jump up and join the mujahideen and become a hero figure among the mujahideen."

Azzam also published video and audio recordings extolling the exploits of the mujahideen in various places around the globe. One section of the website was designated a "jihad photo library," which contained photos that claimed to have been taken "by the foreign mujahideen in Chechnya." The photos were said to be "taken from actual events that took place," and "are exclusive to Azzam Publications." Some of the photos depicted ambushes on Russian forces by foreign mujahideen. Viewers could download video clips of influential foreign mujahideen leaders fighting in Chechnya or order longer videos by mail. Some of these videos were being newly marketed in September 2000, and their contents were described in the "Products" section of the website.

In November 2000, the website warned its readers of an imminent "Joint U.S.-Russian chemical attack on Afghanistan," which would be targeting the Taliban. The website reported that the U.S. assault was meant to retaliate for the bombing of the U.S.S. Cole in Yemen only a month earlier in October 2000, an attack for which al-Qaida had publicly claimed credit. Azzam recommended that its readers immediately come to the Taliban's aid by sending money or gas masks, or traveling to Afghanistan to provide battlefield medical services. The website provided a hyperlink to a news article from the Guardian, reporting that in 1998, the United States had fired cruise missiles at Usama bin Laden's camps in retaliation for al-Qaida's bombing of U.S. embassies in East Africa. The website sought cash donations for the Taliban and offered a copy of Usama bin Laden's "Declaration of War Against the Americans Occupying the Land of the Two Holy Places." That Declaration asked Muslims to rise up in arms against the United States and to kill U.S. military personnel in the Arabian Peninsula as a way to rid the...