U.S. v. Dumeisi

• Decision Date: 15 September 2005
• Docket Number: No. 04-1882.,04-1882.
• Citation: 424 F.3d 566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Khaled Abdel-Latif DUMEISI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

424 F.3d 566

UNITED STATES of America, Plaintiff-Appellee, v. Khaled Abdel-Latif DUMEISI, Defendant-Appellant.

No. 04-1882.

United States Court of Appeals, Seventh Circuit.

Argued May 10, 2005.

Decided September 15, 2005.

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Victoria J. Peters (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Thomas A. Durkin (argued), Durkin & Roberts, Chicago, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

In the years leading up to the 2003 invasion of Iraq, Palestinian Khaled Abdel-Latif Dumeisi was in close contact with the Iraqi Mission to the United Nations ("IMUN"). Dumeisi's relationship with the IMUN (as well as his 1999 trip to Baghdad) was ostensibly related to the publication of his Arabic language newspaper in a Chicago suburb. Certain evidence obtained by the FBI, however, suggested that Dumeisi was actually acting as an agent of Saddam Hussein's Iraqi regime. He was ultimately tried by a jury and convicted for acting in the United States as an agent of a foreign government without prior notification to the Attorney General, conspiracy to do so, and perjury. Dumeisi appeals, alleging a number of evidentiary and other errors by both the trial court and the Foreign Intelligence Surveillance Act ("FISA") court. For the reasons stated herein, we affirm.

I. History

Dumeisi was born in Palestine in 1946. In 1948, he moved to Jordan, then to Kuwait in 1970. Finally, in March 1993, Dumeisi emigrated to the United States. Thereafter, he began publishing an Arabic language newspaper out of Burbank, Illinois. The paper was initially called "Palestine," but was more recently titled "Al-Mahjar," which translates to "place of immigration." Dumeisi received revenue from advertisers and distributed new issues of the free paper every three or four weeks. Al-Mahjar primarily contained articles about Middle Eastern politics. Dumeisi published a number of articles in support of Saddam Hussein and against the Iraqi Opposition; Dumeisi felt that the former leader of Iraq was the only Arab leader who had unwaveringly supported the Palestinian cause. Dumeisi sometimes received threats and harassment from Opposition sympathizers.

A. Contact with Iraqi Mission to the United Nations

In 1996, Dumeisi hired Kawther Al-Khatib to assist with the newspaper. Although Al-Khatib was a Palestinian, she spoke the Iraqi Arabic dialect fluently. Dumeisi directed Al-Khatib to contact the IMUN in New York City and to notify the personnel there that Al-Mahjar was "at their disposal" and would be interested in publishing materials or articles supplied by the IMUN.

After Al-Khatib's initial contact, Dumeisi developed a close relationship with the IMUN and was a guest there on several occasions. On one of his IMUN-sponsored visits to New York, Dumeisi met and interviewed the Foreign Minister of Iraq. In 1999, at the invitation of the Foreign Minister, Dumeisi traveled to Baghdad for Saddam Hussein's birthday party. After this visit, Dumeisi spoke with Shifiq El-Khalil, an acquaintance since 1992 with whom he shared office space. According to El-Khalil, Dumeisi said that he had been in Iraq to garner support for his newspaper and that the people he met were interested in having him monitor and report on the activities of the Iraqi Opposition in the United States. Shortly after he returned from Baghdad, Dumeisi took another trip to the IMUN in New York. He returned with $3000, which he told El-Khalil he had received from the IMUN. Dumeisi also stated that the IMUN would be calling him at 1:00 P.M. every Thursday to give him "instructions." El-Khalil saw Dumeisi on his cell phone Thursday afternoons, and Dumeisi once told El-Khalil that his IMUN contact placed calls from a restaurant rather than from the IMUN because "it was private and secret conversation."

Dumeisi also discussed his trip to Baghdad with Al-Khatib. He explained that his visit was facilitated by the Iraqi Embassy in Amman, Jordan, so that his passport would not be stamped with an Iraqi entry visa. Dumeisi also told her that he had been met by two members of the Mukhabbarat, the Iraqi Intelligence Service ("IIS"), who had pre-set a full schedule of activities for him while he was in Baghdad. Some time after his return to Illinois, Dumeisi and Al-Khatib were watching an Arab film in which an intelligence officer was putting a microphone in the handset of a telephone. Dumeisi remarked that the technique was quite primitive and proceeded to show Al-Khatib a silver pen that could be used as a camera and a tape recorder. Dumeisi said that he had received the pen in Baghdad and that he had used it in an Illinois meeting with a member of the Iraqi Opposition. Al-Khatib also observed Dumeisi on his Thursday afternoon phone calls. On one occasion when she tried to overhear Dumeisi's end of the conversation, she managed only to hear him say, "Lunch is ready. Let the group come." When she asked him about lunch, Dumeisi responded that it was none of her business.

In July 2000, Dumeisi made the acquaintance of former ISS officer Hazim El-Dilemi at the residence of the Iraqi Ambassador to the U.N. in New York. El-Dilemi's cousin, Kassim Mohammed, was an IIS officer stationed at the IMUN. Mohammed introduced Dumeisi and El-Dilemi. Dumeisi described Al-Mahjar as a "newspaper for Iraq" and asked Mohammed for financial help for the paper.

In April 2001, at the IMUN celebration of Saddam Hussein's birthday, Dumeisi gave a speech praising Saddam Hussein. After the speech, Dumeisi repaired to the basement of the IMUN with El-Dilemi, Mohammed, and several IMUN personnel. Dumeisi again asked Mohammed for financial assistance. Dumeisi indicated that he had been approached by other groups offering him more money to write articles for them but that he had refused, telling the group, "I want to stay with you guys." Dumeisi was given a computer, a fax machine, and some articles to be printed in the next issue of Al-Mahjar. At Mohammed's request, Dumeisi provided press identification cards for himself, El-Dilemi, and IIS officer Saleh Ahman. These identification cards purported that Dumeisi, El-Dilemi, and Ahman were employees of Al-Mahjar, and would allow them to gain entry to meetings inaccessible to a diplomat.

As previously mentioned, it was not uncommon for Dumeisi to receive angry or even threatening phone calls from members of the Iraqi Opposition upset by Al-Mahjar's pro-Saddam stance. In fact, Dumeisi reported to IMUN officials that his tires had been slashed as a result of a particular article that he had written. Office-mate El-Khalil once asked Dumeisi why he invited such trouble with his pro-Saddam, anti-Opposition articles. Dumeisi replied that it was a means of learning the identity and whereabouts of Opposition members. When El-Khalil recommended that Dumeisi turn over the answering machine tapes with the threatening messages to the Chicago police, Dumeisi said that he had sent the tapes to the IMUN.

B. The Baghdad File

One of the most important pieces of evidence in Dumeisi's trial has an interesting history all its own. It begins with Dumeisi's female part-time employee, named Wafa Zaitawi, who delivered newspapers for him. Zaitawi also sold long-distance telephone service for FoneTel.

Fawzi Al-Shammari was a member of the Iraqi Opposition in the United States. He had been a general in Saddam's military, but defected to the United States in 1986 and created an organization, called the Iraqi Officers' Movement to Save Iraq, dedicated to overthrowing Saddam Hussein. Al-Shammari was recognized as a possible successor to Saddam Hussein in the event of a regime change, and he had received publicity in numerous newspapers, magazines, and television programs in the United States.

In early 2002, Al-Shammari received a phone call from a friend of his, who also happened to be a friend of Zaitawi, suggesting that he call Zaitawi to get a good deal on long-distance telephone service. This mutual friend also hinted that Al-Shammari might form a more personal relationship with Zaitawi. Al-Shammari purchased long-distance service from Zaitawi, and the two did, in fact, "hit it off" on a personal level. They exchanged photographs and went so far as to discuss the possibility of marriage.

In March 2002, Al-Shammari traveled to Chicago, using the trip as an opportunity to meet Zaitawi in person and to make two public speeches against Saddam Hussein's regime in Iraq. The speeches went well, but the matchmaking did not. Al-Shammari was "shocked" at Zaitawi's appearance—apparently quite different from her photo—and abandoned all thoughts of marriage when she picked him up at the airport. Nevertheless, to be diplomatic, he gave her a necklace, went home with her to meet her daughters, and took her to his hotel cafeteria for some snacks. Al-Shammari did not call Zaitawi again after he left Chicago.

As a FoneTel employee, Zaitawi had access to the records of customers' calling activity. IIS records recovered in Iraq after the fall of Baghdad in 2003 contained listings of telephone numbers called from Al-Shammari's telephone in Zaitawi's handwriting. These documents were part of a larger collection of IIS records which came to be known as "the Baghdad File." The file also contained a report in Dumeisi's handwriting on one of Al-Shammari's anti-Saddam speeches in Chicago. This report identified Al-Shammari as the leader of a possible successor government in Iraq, and contained photographs of Al-Shammari and the names of two of Al-Shammari's associates who had accompanied him to Chicago.

The Baghdad File contained correspondence between IMUN personnel in New York and IIS headquarters in Baghdad. This correspondence referred to Dumeisi as "Symbol Sirhan"; symbols were considered IIS "sources" as opposed to fully vetted "agents." The IMUN...