U.S. v. Jayyousi, No. 08–10494.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore DUBINA, Chief Judge, and BARKETT and PRYOR, Circuit Judges.
Citation657 F.3d 1085,23 Fla. L. Weekly Fed. C 399,86 Fed. R. Evid. Serv. 745
PartiesUNITED STATES of America, Plaintiff–Appellee, Cross–Appellant,v.Kifah Wael JAYYOUSI, a.k.a. Abu Mohamed, Adham Amin Hassoun, Defendants–Appellants,Jose Padilla, a.k.a. Ibrahim, a.k.a. Abu Abdullah Al Mujahir, a.k.a. Abu Abu Abdullah the Puerto Rican, Defendant–Appellant, Cross–Appellee.
Docket NumberNo. 08–10494.
Decision Date19 September 2011

657 F.3d 1085
86 Fed.
R. Evid. Serv. 745
23 Fla. L. Weekly Fed. C 399

UNITED STATES of America, Plaintiff–Appellee, Cross–Appellant,
v.
Kifah Wael JAYYOUSI, a.k.a. Abu Mohamed, Adham Amin Hassoun, Defendants–Appellants,Jose Padilla, a.k.a. Ibrahim, a.k.a. Abu Abdullah Al Mujahir, a.k.a. Abu Abu Abdullah the Puerto Rican, Defendant–Appellant, Cross–Appellee.

No. 08–10494.

United States Court of Appeals, Eleventh Circuit.

Sept. 19, 2011.


[657 F.3d 1091]

David W. DeBruin (Court–Appointed); Lawrence D. Rosenberg (Court–Appointed), Jones Day Law Firm, Matthew S. Hellman (Court–Appointed), Jenner & Block LLP, Washington, DC, Kenneth M. Swartz (Court–Appointed), Law Office of Kenneth M. Swartz, P.A., Marshall Dore Louis (Court–Appointed), Sinclair, Louis, Heath, Nussbaum, Miami, FL, William W. Swor (Court–Appointed), Detroit, MI, Timothy Cone, Michael T. Caruso, Fed. Pub. Defenders, Paul M. Rashkind, Asst. Fed. Pub. Def., Miami, FL, for Defendants.Lisa T. Rubio, Brian K. Frazier, John Charlton Shipley, Jr., Anne R. Schultz, Asst. U.S. Atty., Miami, FL, Dan Harrenstine, U.S. Dept. of Justice, Washington, DC, Plaintiff–Appellee, Cross–Appellant.Appeals from the United States District Court for the Southern District of Florida.Before DUBINA, Chief Judge, and BARKETT and PRYOR, Circuit Judges.DUBINA, Chief Judge:
I. BACKGROUND

A federal grand jury in the Southern District of Florida indicted Appellants Adham Hassoun, Kifah Jayyousi, and Jose Padilla (referred to individually by name or collectively as “defendants”), along with Mohammed Youssef and Kassem Daher, for offenses relating to their support for Islamist violence overseas.1 Count 1 charged defendants with conspiring in the United States to murder, kidnap, or maim persons overseas. 18 U.S.C. § 956(a)(1).2 Count 2 charged defendants with conspiring, in violation of 18 U.S.C. § 371, to commit the substantive 18 U.S.C. § 2339A offense of “provid[ing] material support or resources or conceal[ing] or disguis[ing] the nature, [or] source ... of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [ § 956(a)(1), i.e., a conspiracy to murder, kidnap or maim overseas].” 18 U.S.C. § 2339A. Count 3 charged defendants with a substantive § 2339A material support offense based upon an underlying § 956(a)(1) conspiracy. The charged conduct began in October of 1993 and continued until November 1, 2001. Before trial, this court reversed the district court's order dismissing the most serious count, Count 1, for multiplicity. United States v. Hassoun, 476 F.3d 1181 (11th Cir.2007).

Trial commenced on April 16, 2007, and four months later, the jury returned a

[657 F.3d 1092]

special verdict convicting defendants on all counts. The jury expressly found each of the three objects of the Count 1 conspiracy (the murder of persons outside the United States, the kidnapping of persons outside the United States, and the maiming of persons outside the United States) and found that Padilla's and Hassoun's offenses continued beyond October 26, 2001, but Jayyousi's offense did not. The district court denied the defendants' motions for judgment of acquittal and new trial. On Count 1, the district court sentenced Padilla to 208 months, Hassoun to 188 months, and Jayyousi to 152 months' imprisonment. On Count 2, the district court sentenced each defendant to the maximum 60 months' imprisonment. On Count 3, the district court sentenced Padilla and Hassoun to the maximum of 180 months' imprisonment and sentenced Jayyousi to the maximum of 120 months' imprisonment. The district court made all sentences run concurrently and imposed a 20–year period of supervised release for each defendant. The defendants appeal, and the government cross-appeals Padilla's sentence.
II. ISSUES

1. Whether the district court properly admitted the testimony of FBI Agent John Kavanaugh.

2. Whether there is sufficient evidence to support Padilla's convictions on all counts and Jayyousi's conviction on Count 3, the substantive material support offense.

3. Whether the district court properly admitted the expert testimony of Dr. Rohan Gunaratna.

4. Whether the district court properly admitted against Hassoun and Jayyousi portions of a television interview with Osama bin Laden.

5. Whether the district court properly denied Padilla's motion to suppress statements he made during an interview with FBI agents.

6. Whether the district court properly denied Padilla's motion to dismiss his indictment based on alleged outrageous government conduct.

7. Whether the district court precluded Hassoun from admitting evidence of innocent intent.3

8. Whether the district court properly denied Hassoun's motion for severance.

9. Whether the district court properly applied the terrorism enhancement to defendants' sentences.

10. On cross-appeal, whether the district court erred procedurally or substantively in sentencing Padilla.

III. TRIAL EVIDENCE

The government's theory at trial was that the defendants formed a support cell linked to radical Islamists worldwide and conspired to send money, recruits and equipment overseas to groups that the defendants knew used violence in their efforts to establish Islamic states. The government posited that the defendants' efforts supported an international network of radical Islamists, including al–Qaeda and other terrorist groups such as Maktab al–Khidamat (“MAK”), the precursor to al–Qaeda founded by Palestinian Abdullah Azzam, and The Islamic Group of Egypt founded by an Egyptian cleric, Sheikh Omar Abdel Rahman (“the Blind Sheikh”). The government claimed that each defendant performed an important, but different, role in this support cell. To support its theory, the government presented

[657 F.3d 1093]

evidence of intercepted telephone calls among defendants, faxes from support groups to defendants, checks and receipts showing financial transactions by defendants, and an al–Qaeda “mujahideen identification form” that the government contended Padilla completed in July 2000, in order to attend a jihad training camp.

The defendants' primary defense was their lack of intent to support a violent form of jihad. They contended that they provided only humanitarian aid to oppressed Muslims and did not knowingly participate in a conspiracy to provide material support or resources for terrorist organizations that engaged in murder, kidnapping, or maiming in their efforts to establish Islamic states.

The government began its presentation of evidence with Jennifer Keenan, an FBI special agent, who was a legal attache in Yemen and Islamabad, Pakistan, in 2001. During this time, United States personnel obtained evidence such as photographs, letters, documents, passports, videotapes, and a blue binder from Kandahar, Afghanistan. The FBI reviewed them for any imminent threat information. The FBI examined the binder for latent fingerprints, but did not translate any of the documents in the binder. [Doc. 1061, p. 9–54.] Tom Langston, a CIA officer, worked in Afghanistan collecting intelligence in support of military operations. He testified that an individual brought him the blue binder, telling Langston that he discovered it in an office that was formerly used by Arabs. This individual was affiliated with a tribal network that was cooperating with the United States against the Taliban. [ Id. at 58, 67.]

Peter Carlson, Assistant Special Agent in charge of the Miami, Florida field office for the United States Department of State's Diplomatic Security Service, testified that he issued visas and passports and assisted United States citizens who traveled abroad. [ Id. at 85.] He identified a certified copy of Padilla's passport application that he received from Washington, D.C., copies of Padilla's social security card and driver's license, and a certified copy of a passport application that Padilla made in February 2001 in Karachi, Pakistan. [ Id. at 101; Gov't Ex. 408, 408A, 408D, 409.] Carlson also identified a photocopy of the signature page and face page of Padilla's allegedly lost 1996 passport. [ Id.; Gov't Ex. 409A.] John Morgan, a fingerprint specialist, compared the prints from the blue binder with the FBI's print card containing Padilla's prints. [Doc. 1098, p. 22.] He identified Padilla's prints on the front and back of a “mujahideen identification form,” which was in the blue binder. [ Id. at 35.] An FBI language analyst and interpreter, Nancy Khouri, translated the documents in the blue binder, 403TR–A through 403TR–E, from Arabic to English. She testified that the identification form had “Top Secret” on the bottom of it, and the applicant noted on the form that “Abu al–Fida” recommended him. [ Id. at 148–49.] The applicant also noted that he had traveled to Egypt for study, Saudi Arabia for hajj (pilgrimage), and Yemen for jihad. [ Id.] The applicant answered some questions in Arabic, stated that his country was the United States, and gave his date of birth as 10/18/70, which was the same as the birth date on Padilla's passport. [ Id. at 144, 148.]

The government then presented evidence from FBI language specialists and agents identifying numerous exhibits containing translated summaries of intercepted phone calls. One language specialist testified that he reviewed verbatim transcripts of the calls and made verbatim translations. [Doc. 1099, p. 61.] When he drafted the summaries, he listened to the calls while he read the translations to ensure a proper and accurate summary. [ Id. at 80.] FBI Agent Kent Hukill testified

[657 F.3d 1094]

that Hassoun was the subject of an intelligence investigation that Hukill, along with other agents, began in May 2002. [Doc. 1110, p. 77.] The agents reviewed the audio summaries and identified the other defendants as part of the investigation. [ Id. at 90–91.] Agent Hukill interviewed Hassoun numerous times and identified his voice on the recordings. [ Id. at 106.] He testified that the agents...

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185 practice notes
  • United States v. Gadson, Nos. 12–30007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 19 August 2014
    ...officer was not a participant in the recorded conversation. Kevin Freeman, 498 F.3d at 904; see also United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir.2011) (holding that a lay witness's testimony was admissible even though “he did not personally observe or participate in the defenda......
  • Hassoun v. Searls, No. 20-2056-cv
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 30 July 2020
    ...equipment overseas to groups that [they] knew used violence in their efforts to establish Islamic states." United States v. Jayyousi , 657 F.3d 1085, 1104 (11th Cir. 2011). A jury in the Southern District of Florida found Hassoun guilty on all three counts and the district court sentenced h......
  • Al-Aulaqi v. Panetta, Civil Action No. 12–1192 (RMC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 4 April 2014
    ...charges in the Southern District of Florida. He was transferred to civilian custody, tried, and convicted. See United States v. Jayyousi, 657 F.3d 1085 (11th Cir.2011) (affirming Padilla's conviction on terrorism charges and reversing his sentence of 208 months incarceration because it was ......
  • Lebron v. Sec'y of the Fla. Dep't of Children & Families, No. 14–10322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 3 December 2014
    ...We review the district court's ruling on the admissibility of lay testimony for clear abuse of discretion. See United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir.2011). The district court did not abuse its discretion in rejecting the testimony of the state's lay witnesses. To be admis......
  • Request a trial to view additional results
190 cases
  • United States v. Gadson, Nos. 12–30007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 19 August 2014
    ...officer was not a participant in the recorded conversation. Kevin Freeman, 498 F.3d at 904; see also United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir.2011) (holding that a lay witness's testimony was admissible even though “he did not personally observe or participate in the defenda......
  • Hassoun v. Searls, No. 20-2056-cv
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 30 July 2020
    ...equipment overseas to groups that [they] knew used violence in their efforts to establish Islamic states." United States v. Jayyousi , 657 F.3d 1085, 1104 (11th Cir. 2011). A jury in the Southern District of Florida found Hassoun guilty on all three counts and the district court sentenced h......
  • Al-Aulaqi v. Panetta, Civil Action No. 12–1192 (RMC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 4 April 2014
    ...charges in the Southern District of Florida. He was transferred to civilian custody, tried, and convicted. See United States v. Jayyousi, 657 F.3d 1085 (11th Cir.2011) (affirming Padilla's conviction on terrorism charges and reversing his sentence of 208 months incarceration because it was ......
  • Lebron v. Sec'y of the Fla. Dep't of Children & Families, No. 14–10322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 3 December 2014
    ...We review the district court's ruling on the admissibility of lay testimony for clear abuse of discretion. See United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir.2011). The district court did not abuse its discretion in rejecting the testimony of the state's lay witnesses. To be admis......
  • Request a trial to view additional results

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