United States v. Augustin

• Decision Date: 01 November 2011
• Docket Number: No. 09–15985.,09–15985.
• Citation: 661 F.3d 1105,86 Fed. R. Evid. Serv. 1275
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Burson AUGUSTIN, a.k.a. B, Stanley Grant Phanor, a.k.a. Brother Sunni, Patrick Abraham, a.k.a. Brother Pat, Rotschild Augustine, a.k.a. Brother Rot, Narseal Batiste, a.k.a. Brother Naz, a.k.a. Prince, Manna, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

661 F.3d 1105

86 Fed. R. Evid. Serv. 1275

UNITED STATES of America, Plaintiff–Appellee,

v.Burson AUGUSTIN, a.k.a. B, Stanley Grant Phanor, a.k.a. Brother Sunni, Patrick Abraham, a.k.a. Brother Pat, Rotschild Augustine, a.k.a. Brother Rot, Narseal Batiste, a.k.a. Brother Naz, a.k.a. Prince, Manna, Defendants–Appellants.

No. 09–15985.

United States Court of Appeals, Eleventh Circuit.

Nov. 1, 2011.

Louis Casuso (Court–Appointed), Law Offices of Louis Casuso, Roderick D. Vereen (Court–Appointed), Albert Z. Levin (Court–Appointed), Law Offices of Albert Z. Levin, P.A., Miami, FL, Nathan Dorlan Clark (Court–Appointed), Coral Reef Law Offices, P.A., Palmetto Bay, FL, Ana Maria Jhones (Court–Appointed), Coral Gables, FL, for Defendants–Appellants.

Jonathan D. Colan, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for Plaintiff–Appellee.

Appeals from the United States District Court for the Southern District of Florida.Before TJOFLAT and MARTIN, Circuit Judges, and DAWSON,^* District Judge.PER CURIAM:

Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild Augustine, and Narseal Batiste (collectively, “Appellants”) were all convicted of (1) conspiracy to provide material support to a Foreign Terrorist Organization (Al Qaeda) by agreeing to provide personnel (including themselves) to work under Al Qaeda's direction and control, knowing that Al Qaeda has engaged or engages in terrorist activity, in violation of 18 U.S.C. § 2339B; and (2) conspiracy to provide material support by agreeing to provide personnel (including themselves), knowing and intending that they were to be used in preparation for and in carrying out a violation of 18 U.S.C. § 844(f)(1) and (i), and to conceal and disguise the nature, location, source, and ownership of such material support, all in violation of 18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy to maliciously damage and destroy by means of an explosive a building leased to an agency of the United States (the FBI) and a building used in interstate and foreign commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n). ¹ Additionally, Batiste was convicted of conspiracy to levy war against the Government of the United States and to oppose by force the authority thereof in violation of 18 U.S.C. § 2384.

Appellants now appeal their convictions, raising six issues. First, Batiste and Augustine challenge the district court's order granting in part the government's motion to strike portions of the indictment as surplusage. Second, Augustin, Phanor, and Augustine each challenge the sufficiency of the evidence supporting their convictions. Third, Augustin argues that the government's involvement in the criminal scheme was outrageous and therefore violated the Due Process Clause of the Fifth Amendment. Fourth, Batiste and Abraham challenge several of the district court's evidentiary rulings relating to the admissibility of lay and expert testimony. Fifth, Batiste argues that limitations on his cross-examination of witnesses resulted in cumulative error requiring a new trial. Sixth, all of the appellants challenge the district court's dismissal of a juror for refusing to follow the court's instructions on the law. After careful review of the record and the parties' briefs, and after having had the benefit of oral argument, we affirm.

I.

We first recite the facts of this case in the light most favorable to the government. United States v. Glen–Archila, 677 F.2d 809, 812 (11th Cir.1982). We then describe the procedural history.

A.

Batiste was the leader of the Miami branch of an organization called the Moorish Science Temple, headed in Chicago by an individual known as Sultan Khan–Bey, who named Batiste a minister in the Temple in July 2004. His followers included the other appellants—Abraham, Phanor, Augustin, and Augustine—as well as Batiste's wife, Minerva Vazquez, and two other men charged (but subsequently acquitted) in this case, Naudimar Herrera and Lyglenson Lemorin.

As early as 2004, Batiste's group mixed political and religious ideology with martial arts training. The group frequented a convenience store called Al–Saidi Enterprises, where Batiste engaged in political and religious conversations with Abbas Al–Saidi (“Abbas”), a part owner of the store. The government offered evidence that in these conversations, Batiste mentioned his agreement with Osama Bin Laden's plans to kill Americans in retaliation for America's killing of Muslims around world. The government contends that when Batiste learned that Abbas would be traveling home to Yemen, he asked him to help contact a foreign terrorist organization, such as Al Qaeda, Hammas, or Hezbollah, to help support Batiste's religious and political goals in the United States. According to Abbas, Batiste gave him a flyer containing Batiste's address and contact numbers to give to Abbas's connections with those organizations.

In the fall of 2005, Abbas contacted the FBI, and began working as a confidential informant for the agency. At the FBI's request, Abbas began to record his meetings with Batiste and the members of his group to determine if they were a threat. He also pretended that he had made contact with a terrorist organization that was willing to support Batiste's group. Batiste, Abraham, Herrera, and Augustin drove Abbas past the Miami FBI Building, and Batiste pointed to a window broken during Hurricane Wilma and noted how easy it would be to throw a grenade into the building. He observed that “the best time to attack the U.S. Government is during a disaster.” On November 7, 2005, Augustin met with Abbas at the group's headquarters—known as the “Embassy”—and discussed how the group's “plan” for “jihad” to “destroy” the “devil” would attract followers, who would see that “we're not just talking about taking over Miami or some Dade county, we're talking about taking over ... Allah's world” through coordinated attacks in various locations.

At the direction of the FBI, Abbas told the group that a representative of a Middle East terrorist group was coming to meet them. In anticipation of the meeting, Batiste asked Abbas if the representative knew Osama Bin Laden, because Batiste would “want to meet Usama Bin Laden.”² Batiste described his plan to train “soldiers” in order to “make war against America.” He explained: “I got a mission ... this is the time for Jihad.”

On December 16, 2005, Abbas introduced Batiste to a second FBI informant, Ellie Assaad (“Assaad”), who was posing as Abbas's foreign terrorist connection. To prove to Assaad that he was serious about his mission, Batiste told Assaad that he was in the “same situation” as an individual named Jeff Fort, who Batiste described as the “leader of one of the biggest gangs” based on “Islamic philosophy,” and who went to jail in the 1980s “for terrorism,” because “he was being helped by Libya.”

Assaad asked Batiste to make a list of what support he wanted, and Batiste provided a list requesting uniforms, boots, machine guns, radios, and other equipment. On December 18, 2005, Abraham brought Abbas to the Embassy, where Batiste, Augustin, Phanor, and Herrera were meeting with a potential recruit. Batiste gave Abbas another list, including assault rifles, boots, uniforms, SUVs, binoculars, bulletproof vests, revolvers, phones, military jackets, and rocket launchers.

On December 21, 2005, Batiste told Abbas of his desire to create confusion through bombing or mass poisoning, and in particular raised the idea of blowing up or burning down the Empire State Building or the Sears Tower, adding “[t]hen you gotta get ... the buildings right here in Miami.” On December 22, 2005, Batiste gave Assaad another similar list of materials, this time specifying the shoe sizes for the members of his group. Batiste elaborated on the idea of attacking the Sears Tower. Batiste stated, “I know this building, I know how to get inside this building,” and explained that he had been thinking about it since 1998. Federal Express records indicate that Batiste had worked for the company in the Chicago Loop (where the Sears Tower is located) in 1998. At a December 29, 2005 meeting, Assaad provided the boots Batiste had requested, and Batiste again elaborated on his idea for a dynamite attack on the Sears Tower, this time pointing to his construction experience (as Batiste was, at the time, running a construction company in Miami): “If I can put up a building, I can take one down.” Batiste provided another list, specifying various firearms and materials, as well as $50,000 in cash.

Batiste and Abraham became concerned that Assaad was involved with law enforcement, so when Abbas and Assaad arrived at the Embassy on January 28, 2006, Abraham, Herrera, and Augustin had them strip, change into other clothes, and hand over all electronic devices. Assaad hid the recording device, but refused to give up his phone, explaining that he needed to stay in touch with Al Qaeda at all times. Abraham drove Abbas and Assaad to see Batiste in Islamorada, without telling Abbas or Assaad where they were going during the two-hour drive. Once in the Keys, Abraham met up with Phanor, who had driven separately, and Phanor and Abraham insisted that Assaad surrender his phone, because according to Phanor: “in this business brother, with electronics, you can never be too safe ... in this country, brother, ... electronic devices [are] something terrible to have cause they find all kinda ways to, you know.” But Phanor assured Assaad that when they spoke of him and his mission “in the circle,” they “speak of you with great, great respect.”

Abbas and Assaad were taken to meet Batiste in a fishing tent by the water. Batiste explained that he was suspicious because the government was “concerned about domestic terrorism ... citizens who will help out on the terrorist attack right here in America, as opposed to outsiders coming over here and doing it.” Batiste explained that he was concerned that...