United States v. Hamzeh, 19-3072

• Decision Date: 03 February 2021
• Docket Number: No. 19-3072,19-3072
• Citation: United States v. Hamzeh, 986 F.3d 1048 (7th Cir. 2021)
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Samy M. HAMZEH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

986 F.3d 1048

UNITED STATES of America, Plaintiff-Appellant,

v.Samy M. HAMZEH, Defendant-Appellee.

No. 19-3072

United States Court of Appeals, Seventh Circuit.

Argued October 1, 2020

Decided February 3, 2021

Jonathan H. Koenig, Matthew Dean Krueger, Adam H. Ptashkin, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellant.

Craig W. Albee, Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, Joseph Aragorn Bugni, Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Madison, WI, for Defendant-Appellee.

Before Easterbrook, Manion, and Rovner, Circuit Judges.

Manion, Circuit Judge.

Samy Mohammed Hamzeh was charged with illegal possession of two machineguns and a silencer, in violation of 26 U.S.C. § 5861(d). Before trial, he raised an entrapment defense, arguing he was induced by government informants and lacked the predisposition to obtain these weapons. In four pretrial orders,¹ the district court excluded many of his recorded statements and evidence of the availability of parts that could be used to assemble machineguns. The day before trial was scheduled to begin, the Government filed this interlocutory appeal, pursuant to 18 U.S.C. § 3731. Because we find the court abused its discretion through the commission of legal errors in considering the evidence, we reverse and remand for further proceedings.

I. Background

In the light most favorable to the Government, as the proponent of the evidence,² the facts are as follows: Hamzeh's close friend, Steve, contacted the FBI because he was concerned that Hamzeh planned to commit a mass killing. In September 2015, Steve began working with the FBI, and the FBI also involved another informant named Mike, who began working with Hamzeh and Steve at a restaurant.

In October 2015, Steve recorded his conversations with Hamzeh. Then, in November 2015, Mike began recording his conversations with Hamzeh, as well. During these conversations, Hamzeh spoke about committing acts of terrorism to be martyred as part of his Islamic faith, carrying out a shooting in the Middle East, committing a domestic shooting at a Masonic lodge, and acquiring weapons to complete these crimes. The recordings span from October 13, 2015, to January 25, 2016, the day Hamzeh would eventually acquire two machineguns and a silencer.

At some point during the informants’ interactions with Hamzeh, authorities felt Mike and Steve could not maintain a relationship with Hamzeh unless they escorted him to shooting ranges and gun stores. The FBI instructed Mike and Steve to offer to arrange a purchase if Hamzeh wanted a weapon so authorities could set up a sting operation. On January 25, 2016, Hamzeh and the informants negotiated with two undercover FBI Special Agents posing as arms dealers for the purchase of two machineguns and a silencer. Hamzeh carried the unregistered weapons to his vehicle and was arrested. After his arrest, FBI agents recorded interviews with Hamzeh. He was later indicted by a grand jury.

Before trial, the district court granted Hamzeh leave to present an entrapment defense. As a result, the Government moved in limine to admit excerpts of Steve's and Mike's recorded conversations with Hamzeh to show lack of entrapment. In ruling, the district court expressed concern with a jury convicting Hamzeh of possession based on his planning terrorist attacks and his "disturbing talk" rather than the Government's having proved the elements of the offense. The court also found motive was irrelevant to a § 5861(d)³ violation because it was not an element of the offense. Ultimately, the court admitted some of the Government's evidence and excluded a substantial portion as "irrelevant," "not probative," or "unduly prejudicial."

The Government also sought to admit evidence about the availability of conversion kits and other items meeting the statutory definition of "machinegun" under 26 U.S.C. § 5845(b). Hamzeh moved to exclude this evidence, and the district court granted Hamzeh's motion. Specifically, the court ruled the Government could present evidence about the availability of machineguns to rebut Hamzeh's assertion machineguns are difficult to acquire on the street. However, it found evidence "about the availability of devices that convert semi-automatic firearms to automatic weapons, the cost of these devices [and] the ease of obtaining them through online retailers" was inadmissible.

After the court issued these rulings, and one day before trial, the Government filed this interlocutory appeal.

II. Discussion

At this stage in the proceedings, our narrow question is whether the district court abused its discretion in excluding the Government's evidence. The Government argues we do not owe deference to the district court's ruling since it occurred pretrial. However, "[w]e review the district court's evidentiary rulings during trial or beforehand on motions in limine for an abuse of discretion." Arrigo v. Link , 836 F.3d 787, 794 (7th Cir. 2016) (emphasis added). "A district court by definition abuses its discretion when it makes an error of law."

Koon v. United States , 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

To the extent we must address the court's interpretation of the rules of evidence, we apply a de novo standard of review. United States v. Rogers , 587 F.3d 816, 819 (7th Cir. 2009). We also review de novo any underlying legal conclusions in the district court's grant of a motion in limine . See United States v. Wade , 962 F.3d 1004, 1011 (7th Cir. 2020).

The Government seeks admission of recorded statements Hamzeh made while talking to the informants, and later to law enforcement, along with evidence about the availability of parts used to assemble machineguns.⁴ We address each of these categories in turn.

A. Recorded Statements

The Government seeks admission of Hamzeh's statements planning an attack in the Middle East⁵ and a domestic attack on a Masonic center. It also challenges exclusion of Hamzeh's recorded statements to law enforcement after his arrest.⁶ The court excluded the evidence on relevance grounds and, in many instances, implied the evidence violated Rule 403 of the Federal Rules of Evidence.

i. Relevance

The Government first argues the district court improperly found evidence bearing on Hamzeh's predisposition to obtain a machinegun was "not probative" or "irrelevant." We agree. Whether evidence is relevant is a low threshold. United States v. Driggers , 913 F.3d 655, 658 (7th Cir. 2019). Relevant evidence is that which "has any tendency to make a fact ... of consequence" any "more or less probable than it would be without the evidence." Fed. R. Evid. 401. A fact of consequence includes one that is "ultimate, intermediate, or evidentiary." Fed. R. Evid. 401 advisory committee's notes. Consequently, what must be proven at trial in this case is germane to the relevance inquiry.

Hamzeh is charged with violating 26 U.S.C. § 5861, which states in relevant part, "It shall be unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." § 5861(d). The Government must show (1) Hamzeh consciously possessed a firearm; (2) he knew the features which brought the firearm "within the realm of regulation" (specifically, the automatic nature of the machineguns and the silencing effect of the silencer); and (3) the firearm was not registered. United States v. Jamison , 635 F.3d 962, 967–68 (7th Cir. 2011) (quoting United States v. Edwards , 90 F.3d 199, 205 (7th Cir. 1996) ). Regarding the third element, there is no requirement the Government show Hamzeh knew the weapons were unregistered, knew they were required to be registered, or intended not to register them. Id. at 968 ; see also United States v. Freed , 401 U.S. 601, 607, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (holding no scienter is required for the registration element).

Further, the district court allowed Hamzeh to raise the entrapment defense.⁷ Once raised, the Government must show either (1) law enforcement and government agents did not induce Hamzeh to commit the crime or (2) Hamzeh was predisposed to commit the crime. See United States v. Blitch , 773 F.3d 837, 843 (7th Cir. 2014) ; see also United States v. Hilliard , 851 F.3d 768, 783 (7th Cir. 2017).

Governmental inducement occurs when the government solicits the crime "plus some other government conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the government's efforts." United States v. Mayfield , 771 F.3d 417, 434–35 (7th Cir. 2014). For example, "repeated attempts at persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward beyond that inherent in the customary execution of the crime, pleas based on need, sympathy, or friendship" may each constitute such "other conduct." Id. at 435.

Predisposition to commit a crime occurs when a defendant was " ‘ready and willing’ to commit the charged crime and ‘likely would have committed it without the government's intervention, or actively wanted to but hadn't yet found the means.’ " Blitch , 773 F.3d at 845 (quoting id. at 438 ). This Circuit examines several factors in deciding whether a defendant is predisposed. See Mayfield , 771 F.3d at 435. These include:

(1) the defendant's character or reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion by the government.

Id. (quoting United States v. Pillado , 656 F.3d 754, 766 (7th Cir. 2011) ). While no single factor is dispositive, the most important factor is "whether the defendant was reluctant to commit the offense." Id. (quoting Pillado ...