United States v. Hendricks

• Decision Date: 19 February 2020
• Docket Number: No. 19-3232,19-3232
• Citation: 950 F.3d 348
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Erick Jamal HENDRICKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

950 F.3d 348

UNITED STATES of America, Plaintiff-Appellee,

v.Erick Jamal HENDRICKS, Defendant-Appellant.

No. 19-3232

United States Court of Appeals, Sixth Circuit.

Decided and Filed: February 19, 2020

ON BRIEF: Christian J. Grostic, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Matthew W. Shepherd, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Before: SILER, GIBBONS, and READLER, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge.

A jury convicted Erick Jamal Hendricks of attempting and conspiring to provide material support to a foreign terrorist organization. He raises three issues on appeal. First, Hendricks argues that the trial evidence was insufficient to prove beyond a reasonable doubt that he attempted or conspired to provide material support to a foreign terrorist organization. Second, Hendricks argues that, for substantially the same reason, the district court abused its discretion by denying his motion for a new trial. Finally, Hendricks argues that the district court abused its discretion by partially closing the courtroom during testimony from an undercover FBI agent. We find that the government presented sufficient evidence for a rational juror to find each element of the charged offenses beyond a reasonable doubt. We also find that the district court properly denied Hendricks a new trial and adequately justified its partial closure of the courtroom. We therefore affirm Hendricks’s convictions.

I.

A grand jury indicted Erik Jamal Hendricks on one count of conspiracy to provide material support to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1), and one count of attempting to provide material support to a designated foreign terrorist organization, also in violation of § 2339B(a)(1). Both counts charged Hendricks with conspiring or attempting to provide material support in the form of personnel and services to the Islamic State in Iraq and Syria ("ISIS" or the "Islamic State").

At trial, four witnesses—Amir Al-Ghazi, Janet Miller, Hamza al-Ansari, and Amanda Amaro—testified that Hendricks approached them about forming a group for the purpose of waging jihad in the United States. According to Miller, Amaro, and al-Ansari, Hendricks expressed admiration for ISIS and inquired about their views on the organization or its ideology. Hendricks shared that he had purchased land and weapons for his group, occasionally asking whether they owned guns or suggesting that they should be trained to fight or operate weapons. Hendricks also exhorted each to recruit other like-minded individuals and, in some instances, connected them with other recruits.

Al-Ghazi and Amaro testified that they believed Hendricks was trying to form an ISIS cell. Al-Ghazi explained that, when Hendricks approached him, he deduced that Hendricks was "a recruiter for the Islamic State." DE 95, Trial Tr., Page ID 2204. "I was saying things on Twitter in support of [the] Islamic State," Al-Ghazi testified, "[s]o if you were looking for me" it was because "I was pledging allegiance to ISIS at the time." Id. at 2191, 2204. Al-Ghazi referred at least one recruit to Hendricks. Amaro also shared that she perceived Hendricks to be "build[ing] ... an extension of [ISIS] in America." DE 96, Trial Tr., Page ID 2401. And Miller testified that Hendricks "supported the Islamic State" and "the establishment of [an] Islamic State." DE 95, Trial Tr., Page ID 2252, 2265. She recalled that Hendricks asked her to put him in direct contact with other ISIS supporters, including a "hate preacher" in the United Kingdom who could act as a "guide into the Islamic State." Id. at 2254.

Amaro further testified that Hendricks ordered her to disseminate a three-paragraph document claiming responsibility for a terror attack in Garland, Texas. Although Hendricks authored its contents, Amaro testified that she transcribed the document, devised a title, and posted it online, all at the direction of Hendricks. In the document, Hendricks wrote that the Garland attack had been carried out by his group, which he referred to as the "Islamic State in America." DE 160-2, Ex. 53, Page ID 3485. He claimed to "have 71 trained soldiers in 15 different states" and pledged allegiance "[t]o our Amir Al Mu’mineen"—a reference to the leader of ISIS. Id. at 3486. Hendricks also incorporated an image of the ISIS flag just above the text. After the document was published, he ordered Amaro to directly share it with several prominent ISIS supporters, including two senior members of ISIS in Syria, which she did. Amaro recalled that one of the senior members "seemed pleased with the message." DE 96, Trial Tr., Page ID 2420.

Hendricks had similar interactions with an undercover FBI agent, Special Agent Steven Jane. As with the other witnesses, Hendricks conveyed to Jane that he was forming a group to wage jihad domestically. He connected Jane to other recruits and discussed training together on his land. Jane eventually asked Hendricks to define the link between his group and the ISIS organization. Hendricks used the analogy of a body’s brain and its limbs. His venture, Hendricks explained, was a limb and ISIS the "[u]ltimate brain." DE 92, Trial Tr., Page ID 1522. "Ultimately the brain is the [caliphate]," he emphasized. Id. at 1518. When pressed by Jane to further clarify whether his cell was "part of the bigger team" (i.e., ISIS) or "a new team," Hendricks elaborated by comparing ISIS to the headquarters of a business and his cell to an "outpost[ ]." Id. at 1521–22.

Jane also asked Hendricks how he could help "the brain." Id. at 1528. Jane indicated a willingness to travel to join ISIS in Iraq or Syria but told Hendricks that he wanted to be sure he had "the blessing of the brain." Id. In response, while praising Jane’s proposed travel as a "great deed," Hendricks said that he had "spoken to senior brothers and the [advice] is to remain here." Id. at 1529. In a later conversation, Hendricks again told Jane that traveling to join ISIS in Iraq or Syria "is not what senior people requested [of] me." Id. at 1552. Lorenzo Vidino, Ph.D., an expert on terrorism, testified that these interactions were consistent with ISIS strategy at the time. ISIS leaders, he explained, directed supporters to "[c]arry out attacks wherever you are, ... under the ISIS umbrella." DE 93, Trial Tr., Page ID 1696.

At the close of the government’s case, Hendricks moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal as to both counts. The district court denied his motion. Hendricks did not present any witnesses or evidence. Shortly thereafter, the jury returned a guilty verdict on both counts of the indictment. After trial, Hendricks renewed his motion for a judgment of acquittal and moved for a new trial under Federal Rule of Criminal Procedure 33. The district court denied both motions. Hendricks timely appealed.

II.

Hendricks raises three arguments on appeal. First, Hendricks argues that the district court erred in denying his motion for a judgment of acquittal because there was insufficient evidence to sustain his convictions. Specifically, he asserts that, although the government may have proved that he took independent actions inspired by ISIS or supporting its goals, there was no evidence that his actions were directed by, controlled by, or done in concert with ISIS. Second, relying on substantially the same reasoning, Hendricks argues that the district court abused its discretion in denying his motion for a new trial because the evidence weighed heavily against the verdict. Finally, Hendricks argues that the district court abused its discretion by partially closing the courtroom to protect the identity of a testifying FBI agent. We address each issue in turn.

A.

Hendricks first argues that the trial evidence was insufficient to establish that he conspired or attempted to provide material support to ISIS. A defendant challenging the sufficiency of the evidence supporting her conviction "bears a very heavy burden." United States v. Davis , 397 F.3d 340, 344 (6th Cir. 2005) (quoting United States v. Spearman , 186 F.3d 743, 746 (6th Cir. 1999) ). When reviewing an insufficient evidence claim on appeal, we must affirm a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Vichitvongsa , 819 F.3d 260, 270 (6th Cir. 2016) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). "[W]e do not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury," United States v. Wright , 16 F.3d 1429, 1440 (6th Cir. 1994), and "[c]ircumstantial evidence alone is sufficient to sustain a conviction," even if it does not "remove every reasonable hypothesis except that of guilt," Spearman , 186 F.3d at 746 (quoting United States v. Vannerson , 786 F.2d 221, 225 (6th Cir. 1986) ).

Section 2339B(a)(1) makes it a federal crime to "knowingly provide[ ] material support or resources to a foreign terrorist organization," as well as to "attempt[ ] or conspire[ ]" to do the same. 18 U.S.C. § 2339B(a)(1). The term "material support or resources" is defined to include, inter alia , the provision of any "service" or "personnel."¹ Id. § 2339A(b)(1). A person provides "personnel" to a foreign terrorist organization if she makes available one or more persons—who may be or include herself—to work under that organization’s "direction or control." Id. § 2339B(h). As the statute makes clear, a person does not work under the "direction or control" of a terrorist organization if she "act[s] entirely independently of the ... organization to advance its goals or objectives." Id. ; see also Holder v. Humanitarian Law Project , 561 U.S. 1, 23, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (emphasizing that the term "personnel" excludes "independe...