U.S. v. Mubayyid

Decision Date01 September 2011
Docket Number08–1985,08–1986,10–1094,Nos. 08–1846,08–2103,08–2102.,s. 08–1846
PartiesUNITED STATES of America, Appellee/Cross–Appellant,v.Muhamed MUBAYYID and Emadeddin Z. Muntasser, Defendants, Appellants/Cross–Appellees.United States of America, Appellant,v.Samir Al–Monla, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

658 F.3d 35
108 A.F.T.R.2d 2011-6034
2011-2 USTC P 50,614

UNITED STATES of America, Appellee/Cross–Appellant,
v.
Muhamed MUBAYYID and Emadeddin Z. Muntasser, Defendants, Appellants/Cross–Appellees.United States of America, Appellant,
v.
Samir Al–Monla, Defendant, Appellee.

Nos. 08–1846

08–1985

08–1986

08–2103

10–1094

08–2102.

United States Court of Appeals, First Circuit.

Heard Oct. 4, 2010.Decided Sept. 1, 2011.


[658 F.3d 40]

Michael C. Andrews for Muhamed Mubayyid.Kathleen M. Sullivan, with whom Faith E. Gay, Susan R. Estrich, Adam M. Abensohn, William B. Adams, and Quinn Emanuel Urquhart & Sullivan, LLP were on brief, for Emadeddin Z. Muntasser.Judith H. Mizner, Assistant Federal Public Defender, for Samir Al–Monla.S. Robert Lyons, Attorney, Tax Division, U.S. Department of Justice, with whom John A. DiCicco, Acting Assistant Attorney General, Alan Hechtkopf, Attorney, Tax Division, U.S. Department of Justice, and Carmen Milagros Ortiz, United States Attorney, were on brief, for United States of America.Before TORRUELLA and LIPEZ, Circuit Judges, and SMITH,* District Judge.LIPEZ, Circuit Judge.

This complex appeal arises out of the joint criminal prosecution of Emadeddin Muntasser, Muhamed Mubayyid, and Samir Al–Monla for conspiring to defraud the United States by obstructing the functions of the Internal Revenue Service (“IRS”), for corruptly endeavoring to obstruct the due administration of the Internal Revenue laws, for filing false tax returns, for making false statements to agents of the Federal Bureau of Investigation (“FBI”), and for scheming to conceal material facts from a federal agency. The charges stem from each defendant's involvement with Care International, Inc. (“Care”), a charitable organization incorporated by Muntasser in 1993 with a stated purpose of providing worldwide humanitarian aid.

The defendants' twenty-four day jury trial focused on the circumstances motivating Muntasser's formation of Care in 1993; the defendants' failure to disclose some of Care's activities, such as the publication of certain newsletters from 1993 to 1997; and Care's support for, and promotion of, Islamic jihad and fighters known as “mujahideen.” 1 The government's central theory at trial was that Muntasser had established Care in order to fraudulently obtain a tax exemption, so that contributions being used to finance mujahideen overseas could be deducted from individual tax returns as charitable donations.

[658 F.3d 41]

At the close of the government's case, the district court acquitted Muntasser and Al–Monla of endeavoring to obstruct the administration of the Internal Revenue laws. It found that their tax filings, which formed the basis of the charge, occurred outside of the relevant statute of limitations period. The jury then acquitted Al–Monla of making a false statement to an FBI agent, but otherwise convicted the defendants of all counts. Following that verdict, the district court acquitted Muntasser and Al–Monla of having schemed to conceal material facts from a federal agency, and acquitted all three defendants of having conspired to defraud the United States. With respect to the scheme to conceal, it found that the government's proposed jury instruction, accepted by the court, had narrowed the charge in a way that rendered Muntasser's and Al–Monla's acts of concealment immaterial. As to the conspiracy, the court concluded that the government offered insufficient evidence that the defendants had reached the specific agreement described in the indictment.

Muntasser, Mubayyid, and the government have appealed. Muntasser argues that the evidence introduced at trial linking Care to organizations financially supporting the mujahideen and jihad, including an alleged predecessor organization that received negative publicity in connection with the 1993 World Trade Center bombing, biased the jury in the appraisal of the government's evidence on his sole count of conviction, a false statement charge. He also challenges his sentence. Mubayyid appeals from his convictions for filing false tax returns and for endeavoring to obstruct the administration of the Internal Revenue laws, contending that the question that the jury found he answered falsely was fundamentally ambiguous. He also claims that the evidence was insufficient to support his conviction for scheming to conceal material facts. Additionally, with respect to all of his convictions, he claims that he was prejudiced by the introduction of a recorded telephone conversation and joins Muntasser in claiming prejudicial spillover from what the defendants characterize as “terrorism evidence.” The government, for its part, seeks to reinstate the jury's guilty verdict against all three defendants on the charged conspiracy to defraud the United States.2 In its view, the district court erred by acquitting the defendants when the government successfully proved a conspiracy that was narrower than, but wholly included within, that alleged in the indictment.

After careful consideration, we reverse the district court's acquittal of the defendants on the conspiracy count, reinstate the jury's verdict, and affirm the defendants' other convictions.

I.
A. Factual Background

We recount the essential facts of the case, drawn from the trial record, in the light most favorable to the verdict. E.g., United States v. Poulin, 631 F.3d 17, 18 (1st Cir.2011). Due to the complexity of the issues, we reserve additional factual detail for the analysis that follows.

1. Care's Formation and Operations

Emadeddin Muntasser is a Libyan citizen and a permanent resident alien in the United States. In the early 1990s, Muntasser served as Director of the Boston branch of the Al–Kifah Refugee Center

[658 F.3d 42]

(“Al–Kifah”), the American face of Maktab al-Khidmat (“MAK”), a Pakistan-based organization that openly advocates violent, Islamic jihad and actively supports mujahideen in Afghanistan. In a letter of solicitation introduced at trial, Muntasser described Al–Kifah as “an organization founded by Sh[eikh] Abdullah Azzam to serve the cause of Jihad,” and which “actively supports the Mujahideen in the front.” 3 Among its activities, Al–Kifah's Boston branch published a pro-jihad newsletter entitled “Al–Hussam,” which translates from Arabic as “The Sword”; it sold books and audiotapes extolling the cause of jihad; and it promoted sermons and lectures by like-minded Muslim leaders. It also solicited substantial charitable donations through the publication of an annual Zakat Calculation Guide. 4 Although the organization advertised itself as a tax-exempt charity, it had never been granted charitable status by the IRS.

In early 1993, shortly after the World Trade Center bombing in New York City, both Newsweek and The New York Times ran articles linking the Brooklyn branch of Al–Kifah to “Islamic Militant groups, fighters in Afghanistan, and individuals who were alleged to have committed acts of violence.” Within days, Muntasser dissolved the Boston branch of Al–Kifah and incorporated Care in Massachusetts. According to its articles of incorporation, Care was “organized exclusively for charitable, religious, educational, and scientific purposes including ... human welfare, charitable and relief activities.” The articles listed Muntasser as Care's President, Munther Baara as Treasurer, and Ahmad Nawras as Secretary, and identified Afif Kadri, Mohamad Akra, and Waseem Abu Yasin as board members. Baara, Nawras, Kadri, Akra, and Yasin had all served in identical positions for the Boston branch of Al–Kifah. The articles also stated, “It is intended that the corporation shall be entitled to exemption from federal income tax under Section 501(c)(3) of the Internal Revenue Code.”

Following its incorporation, Care effectively replaced Al–Kifah's Boston branch. It took over Al–Kifah's mailbox address and deposited financial contributions into Al–Kifah's bank account (though these contributions were eventually transferred to an account in Care's name). Care's activities also substantially mirrored those of Al–Kifah's Boston branch, including the sponsoring of pro-jihad speakers, the sale of books and tapes advocating jihad, and the continued publication of the “Al–Hussam” newsletter.5

Within the organization, individuals referred to Care as “Maktab,” a shorthand reference to MAK. In its own newsletters, Care referred to itself as “the office of services,” a name by which MAK was known in the United States. Like Al–Kifah, Care also represented itself to the public as “founded by Imam Abdullah Azzam,” even though Abdullah Azzam had died more than three years prior to Care's formation. At trial, the government presented

[658 F.3d 43]

two experts who testified regarding the overseas operations of MAK, Abdullah Azzam's philosophy on violent jihad, the general trend of using charitable organizations to covertly finance jihad and mujahideen, and the concept of “economic jihad”—the precept that, “[i]f you cannot be a fighter, fund a fighter.” It also asked a witness to read fifty-five pages of the “Al–Hussam” newsletters into the record, primarily those sections that demonstrated Care's commitment to violent jihad and its financial solicitations for the mujahideen.

Defendants Al–Monla and Mubayyid had both been associated with Care in some form since 1993, and with Al–Kifah before it. In 1996, Al–Monla replaced Muntasser as President of Care. He served in that capacity until 1998, when he became Treasurer. Mubayyid, who is Al–Monla's brother-in-law, eventually replaced Al–Monla as Care's Treasurer in 1998 or 1999. He filled that role through at least 2002.

2. Care's Tax Filings

Approximately six weeks after incorporating Care, Muntasser applied to the IRS to have Care designated as a tax-exempt charity. In order to obtain tax-exempt status, an organization must file an initial application for tax exemption, IRS Form 1023, in which the organization demonstrates that it is organized and operated exclusively for...

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