United States v. Alahmedalabdaloklah

• Docket Number: 18-10435
• Decision Date: 09 August 2023
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ahmed ALAHMEDALABDALOKLAH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

76 F.4th 1183

UNITED STATES of America, Plaintiff-Appellee, v. Ahmed ALAHMEDALABDALOKLAH, Defendant-Appellant.

No. 18-10435

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 6, 2023 Phoenix, Arizona

Filed August 9, 2023

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, District Judge, Presiding, D.C. No. 2:12-cr-01263-ROS-1

Molly A. Karlin (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Federal Public Defender's Office, Phoenix, Arizona; Michael Tanaka, Law Office of Michael Tanaka, Los Angeles, California; for Defendant-Appellant.

Jeffrey M. Smith (argued), Appellate Counsel; Matthew G. Olsen, Assistant Attorney General for National Security; Gary M. Restaino, United States Attorney; National Security Division, United States Department of Justice, Washington, D.C.; David A. Pimsner and Bill C. Solomon, Assistant United States Attorneys; Krissa M. Lanham, Appellate Division Chief; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

Before: Susan P. Graber, Richard R. Clifton, and Morgan Christen, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

Ahmed Alahmedalabdaloklah (Oklah), a Syrian national, appeals his conviction after a jury trial for participating in a conspiracy that targeted U.S. military personnel and property in Iraq.¹ The Government alleged that Oklah applied his technical expertise to develop, manufacture, and supply electronic components for improvised explosive devices (IEDs) that a non-state militant group used against the U.S. military. The Government's evidence included videotaped testimony from overseas depositions; emails exchanged among alleged co-conspirators; physical evidence collected from a facility apparently used to assemble electronic components and manufacture IEDs in Baghdad, including physical evidence bearing the defendant's fingerprints; and expert testimony from electrical engineers with specialized military training. The jury delivered a mixed verdict on the six-count indictment. It convicted Oklah for conspiring to use a weapon of mass destruction (Count One), conspiring to damage U.S. government property (Count Two), and conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same (Counts Three and Four). The jury acquitted Oklah of conspiring to murder Americans (Count Five) and providing material support to terrorists (Count Six).

We agree with the parties that the convictions based on crime-of-violence conspiracy (Counts Three and Four) cannot stand after the Supreme Court's decision in United States v. Davis, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), and on those counts we remand with direction to the district court to vacate the convictions. Even reviewing the record cumulatively, this is the only error that warrants remand. This opinion addresses Oklah's remaining convictions for Counts One and Two: conspiracy to use a weapon of mass destruction and conspiracy to damage or destroy U.S. government property. We affirm the convictions on Counts One and Two, reverse the convictions on Counts Three and Four, and remand to the district court for resentencing.²

Background

I. Arrest and Extradition

The Government alleged that, between January 2005 and July 2010, Oklah was a member of the 1920s Revolution Brigades, an insurgent group in Iraq that aimed to drive American military forces out of that country. Among other things, the Brigades allegedly planted IEDs that damaged property owned by the U.S. military and killed or injured American troops. According to the indictment, Oklah designed or created remote detonator switches for the IEDs. The Government presented extensive evidence that Oklah's fingerprints, personal identification documents, and other incriminating evidence were found at a location in Baghdad that served as a site for manufacturing IEDs. In 2006, Oklah left Iraq and moved to China. The Government alleged that, from there, Oklah continued to design and assist with the manufacture of IEDs until the Chinese government expelled him in 2010. At that point, Oklah traveled from China to Turkey, where he was arrested and eventually extradited to the United States.

Oklah was charged in the District of Arizona with six counts:

• Count One, conspiracy to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(1) and (3);

• Count Two, conspiracy to maliciously damage or destroy United States government property by means of an explosive, in violation of 18 U.S.C. § 844(f)(1), (2), and (n);

• Count Three, aiding and abetting possession of a destructive device in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), (B)(ii), and (2);

• Count Four, conspiracy to possess a destructive device in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(o);

• Count Five, conspiracy to commit extraterritorial murder of a U.S. national, in violation of 18 U.S.C. § 2332(b)(2); and

• Count Six, providing material support to terrorists, in violation of 18 U.S.C. § 2339A.

II. Trial Evidence

Oklah's jury trial lasted for almost seven weeks, beginning on January 30, 2018, and continuing through March 16, 2018.

A. The Government's Case

An important and mostly undisputed aspect of the Government's case explained the history and activities of the 1920s Revolution Brigades, a group named after a 1920 Iraqi uprising in which tribal leader Suleiman Al-Dhari assassinated a British military officer. The modern iteration of the Brigades arose after the 2003 Iraq War. Its aim was to drive the U.S. military out of Iraq and to challenge the newly formed (and U.S.-supported) Iraqi government. Harith Al-Dhari (Harith) led the group until he was killed by Al-Qaeda in 2007.

A government witness testified that the Brigades differed from other insurgent groups because of their "laser like focus on expelling the Americans." The group's tactics included using IEDs that were detonated remotely as military vehicles passed by. The Government presented significant evidence about the transmitters and dual-tone multifrequency (DTMF) circuit boards that were used to trigger explosions. The Government's experts testified that, at some point, the Brigades split into factions, and some of them worked and operated in conjunction with the U.S. military, but the faction working with the U.S. military against Al-Qaeda did not use IEDs.

The Government argued that Oklah used his engineering expertise to create sophisticated IED components that the Brigades employed in their attacks against American forces in Iraq. To prove Oklah's connection to the IED-related activity, the Government introduced forensic evidence collected from what it characterized as one of the largest IED manufacturing facilities ever discovered in Iraq. Evidence tying Oklah to the Brigades' IED bombings was critical because Counts One and Two are both conspiracy charges. To tie Oklah to the Brigades, the Government relied on overseas deposition testimony from Harith's cousin Jamal Al-Dhari (Al-Dhari) and Muhammad Ali-Ways, the son-in-law of another Brigades leader, Abu Ghassan. The Government also introduced emails that Oklah exchanged with Al-Dhari and Ali-Ways, and evidence of Oklah's fingerprints on IED components of the same type the Brigades used in their IEDs. The emails and testimony connected Oklah not only to Al-Dhari and Ali-Ways, but also to Brigades military leaders Harith and Abu Ghassan. The Government argued that, while Oklah may have operated a legitimate electronics business as he claimed, he also sent IED components from China to Harith, to Abu Ghassan, and to other Brigades members in furtherance of the Brigades' campaign to drive Americans out of Iraq.

Al-Dhari, an Iraqi, moved to Lebanon in approximately 2005. When asked about the Brigades in the Government's case-in-chief, he readily affiliated himself with the group. He testified that his grandfather was the leader of the original Brigades and confirmed that the Brigades' "primary goal" was to "resist the American occupation" by "doing military operations." Al-Dhari admitted that he personally provided support for the medical, financial, logistical, and travel needs of Brigades members. According to Al-Dhari, on at least one occasion he provided financial assistance for Abu Ghassan, a Brigades member who had "knowledge and experience in ... exploding devices and rockets." Al-Dhari admitted in his testimony that he provided support for the Brigades inside and outside Iraq, but as discussed in additional detail below, Al-Dhari was equivocal when Government counsel asked him to describe his specific role and membership in the Brigades. Despite equivocal responses on these points, the Government ultimately acknowledged that Al-Dhari maintained a leadership position in the Brigades and had a military, political, and religious role in the group.

Al-Dhari identified Oklah as "Mukhtar" in his testimony, explaining that Al-Dhari's cousin, Harith, had introduced Oklah to him using that name. Al-Dhari described Oklah's work creating IED components for the Brigades, but the parties strongly dispute whether Al-Dhari had personal knowledge of Oklah's activities because Al-Dhari attributed some of his knowledge about "Mukhtar" to second-hand information he received from Harith. Al-Dhari testified that Harith told him that Oklah was helping the Brigades in the "technology aspect" with IEDs used against the American forces. Al-Dhari went on to testify that "Mukhtar" created remote controls for the IEDs, improved the devices, and helped thwart American countermeasures. When Government counsel asked Al-Dhari whether he had any conversations with Oklah about the IEDs, Al-Dhari responded that he did not understand the technology, but he knew "through general conversation with Harith that [Oklah] was helping in this matter."

The evidence showed that...