MEMORANDUM OPINION
T. S. Ellis, III, United States District Judge
In the course of this trial in which Defendant stands accused of various crimes, including hostage-taking resulting in death and criminal conspiracy, the Government seeks the admission of testimony, letters, and audio and video recordings containing out-of-court statements by deceased or otherwise unavailable victims of the alleged hostage-taking conspiracy. Defendant objects to admission of the unavailable hostages’ statements, contending that they constitute inadmissible hearsay and that their admission would violate the Confrontation Clause of the Sixth Amendment. The Government contends that Defendant's objection should be overruled based on the forfeiture by wrongdoing exception, as set forth in Giles v. California , 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) and Rule 804(d)(6), Fed. R. Evid. This matter was fully briefed and argued, and a bench ruling issued on April 1, 2022. The purpose of this Memorandum Opinion is to memorialize and elucidate that ruling.
On October 6, 2020, a grand jury in the Eastern District of Virginia returned an indictment charging Defendant El Shafee Elsheikh and Co-Defendant Alexanda Amon Kotey1 with the following eight counts:
(1) conspiracy to commit hostage-taking resulting in death, in violation of 18 U.S.C. § 1203 ;
(2) hostage-taking resulting in the death of James Foley, in violation of 18 U.S.C. § 1203 and 2; (3) hostage-taking resulting in the death of Kayla Mueller, in violation of 18 U.S.C. § 1203 and 2;
(4) hostage-taking resulting in the death of Steven Sotloff, in violation of 18 U.S.C. § 1203 and 2;
(5) hostage-taking resulting in the death of Peter Kassig, in violation of 18 U.S.C. § 1203 and 2;
(6) conspiracy to murder United States citizens outside of the United States, in violation of 18 U.S.C. § 2232(b)(2) ;
(7) conspiracy to provide material support to terrorists, in violation of 18 U.S.C. § 2339A ; and
(8) conspiracy to provide material support to a designated foreign terror organization, namely the Islamic State of Iraq and Syria ("ISIS"), in violation of 18 U.S.C. § 2339B.
Distilled to its essence, the Indictment alleges that Defendant travelled to Syria in 2012, where he became a member of ISIS. The Indictment further alleges that, between 2012 and 2015, Defendant, Co-Defendant Kotey, Mohammad Emwazi, and others conspired to capture foreign hostages and hold them for ransom, as well as to provide material support to ISIS. The Indictment also alleges that Americans James Foley, Kayla Mueller, Steven Sotloff, and Peter Kassig were victims of the hostage-taking scheme, and were subsequently murdered or otherwise died in captivity.
Prior to the commencement of trial on March 29, 2022, the Government filed a memorandum regarding the admissibility of various out-of-court statements by deceased or otherwise unavailable victims of the alleged hostage-taking conspiracy.2 Dkt. 218. The Government's memorandum argued, inter alia , that the victims’ statements are admissible pursuant to the forfeiture by wrongdoing exception to both the Confrontation Clause and the rule excluding hearsay testimony. Defendant subsequently filed a response objecting to the admissibility of the statements and contesting the Government's forfeiture by wrongdoing argument (Dkt. 229), and the parties presented additional oral argument and briefing on the issue before trial. See Dkts. 252, 257. A ruling on the admissibility of the victims’ statements was deferred pending development of the evidentiary record at trial.3 For reasons stated in this Memorandum Opinion and in the course of trial on April 1, 2022, the record evidence now makes clear that the forfeiture by wrongdoing exception applies to the unavailable hostages’ out-of-court statements that the Government seeks to admit, and Defendant's objection to the admissibility of those statements must be overruled.
A substantial volume of evidence has been received, the great bulk of which was received without objection, both during the course of a November 2021 evidentiary hearing related to the parties’ pretrial motions4 and during trial. The following list summarizes relevant portions of the trial record, but does not constitute an exhaustive account of all relevant evidence heard at trial.
Defendant's September 11, 2011 Arrest
• Defendant, then a citizen of the United Kingdom,5 was arrested in London, England, on September 11, 2011.
• In this respect, three members of London's Metropolitan Police, namely Officers Barry Goodman and Dan Godfrey as well as Detective William Van-Der-Reijden, testified credibly regarding the circumstances of Defendant's arrest.
• On September 11, 2011, Officers Goodman and Godfrey responded to reports of an altercation and stabbing incident between protestors from the group Muslims Against Crusaders ("MAC") and counter-protestors from the English Defense League ("EDL").
• Members of the MAC group, including Defendant and Co-Defendant Alexanda Kotey, were detained outside of a pub in London. Defendant and Co-Defendant Kotey were subsequently taken into custody on suspicion of involvement in the stabbing incident.
• On September 12, 2011, Defendant was interviewed by Detective Van-Der-Reijden. At the interview, Defendant provided a written statement of facts, which Defendant had prepared with the aid of a solicitor.
Defendant's Travel in 2012
• Flight records admitted in evidence in this case indicate that, in 2012, Defendant travelled by air from the United Kingdom to Turkey.
• Several witnesses, including surviving victims of the alleged hostage-taking scheme, testified at trial that they entered northern Syria—a region in which ISIS was active in 2013 and thereafter—by way of the land border between Turkey and Syria.
The Islamic State of Iraq and Syria ("ISIS")
• Professor Bruce Hoffman testified at trial as an expert in the field of terrorism and counterterrorism.
• Professor Hoffman testified, inter alia , that:
• ISIS began as a splinter organization from Al-Nusra Front, a designated foreign terrorist organization and radical Islamic jihadist group which operated in Syria;
• ISIS, which has also been designated a terrorist organization by the United States government, was initially led by an individual named Abu Bakr Al-Baghdadi;
• ISIS made concerted efforts to recruit foreign Muslims to join its ranks as fighters;
• ISIS was unique among radical jihadist organizations in controlling and administering a wide portion of physical territory in Iraq and Syria, which ISIS had accumulated by the time it announced the establishment of a "caliphate" in 2014; and • ISIS undertook concerted efforts to capture and hold for ransom foreign hostages, which ISIS announced in propaganda materials.
iPhone Evidence
• Matthew Husher, a member of the London Metropolitan Police, credibly testified at trial that he recovered an iPhone during a search of the London residence of Khalid Elsheikh in 2014. Khalid Elsheikh and Defendant's birth certificate state that Khalid Elsheikh is the brother of Defendant.
• Matthew Hamilton, a law enforcement expert in digital forensics and data extraction from the United Kingdom, credibly testified that he performed an extraction of data from the iPhone recovered in Khalid Elsheikh's residence.
• The data from the iPhone included messages from an application called Telegram. Through Telegram, the user of the iPhone exchanged messages with an account called "Kaasir," who referred to the user as his "brother."
• Among other things, the user named "Kaasir" sent the following Telegram messages to the user of the iPhone:
• a photograph of the user posing with a firearm, which Special Agent Chiappone identified as an image of Defendant;
• images and messages indicating that Kaasir, whose photograph Special Agent Chiappone identified as Defendant, was involved in violent warfare as a member of ISIS, including references to a battle with Division 17 of the Syrian Army and pictures of severed human heads on poles; and
• a voice message expressing concern that the aforementioned images could expose Kaasir to criminal liability.
Testimony by and about Surviving Hostages
• Several surviving hostages of the ISIS hostage-taking conspiracy alleged in the Indictment testified at trial, including Federico Motka, Patricia Chavez Mejia, Marcos Marginedas, and Nicholas Henin.6
• Italian citizen Federico Motka testified credibly, inter alia , that:
• On March 8, 2013, while undertaking humanitarian aid work in Northwestern Syria, Motka and a British colleague named David Haines were captured by armed men and transported to a makeshift prison. Motka remained in captivity in Syria for the next fourteen months.
• Haines and Motka were held with other hostages named James Foley and John Cantlie in a location that they called "The Box."
• Throughout their captivity, Motka and the others hostages routinely interacted with a group of three captors the hostages dubbed the "Beatles" because the captors spoke English with British accents. The hostages called the individual members of the Beatles John, Ringo, and George. Motka testified that he overheard one of the Beatles state that he had previously been involved in an altercation with the "EDL" outside a pub in London.
• Motka further testified that the Beatles: (i) routinely
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