United States v. Mehanna

• Citation: 735 F.3d 32
• Decision Date: 13 November 2013
• Docket Number: No. 12–1461.,12–1461.
• Parties: UNITED STATES of America, Appellee, v. Tarek MEHANNA, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

735 F.3d 32

UNITED STATES of America, Appellee,

v.Tarek MEHANNA, Defendant, Appellant.

No. 12–1461.

United States Court of Appeals, First Circuit.

Nov. 13, 2013.

Sabin Willett, with whom Susan Baker Manning, Julie Silva Palmer, Bingham McCutchen LLP, J.W. Carney, Jr., and Carney & Bassil were on brief, for appellant.

Alex Abdo, Hina Shamsi, Matthew R. Segal, and Sarah R. Wunsch on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts, amici curiae.

Pardiss Kebriaei, Baher Azmy, and Amna Akbar on brief for Center for Constitutional Rights, amicus curiae.

Nancy Gertner, David M. Porter, and Steven R. Morrison on brief for National Association of Criminal Defense Lawyers, amicus curiae.

E. Joshua Rosenkranz and Orrick, Herrington & Sutcliffe LLP on brief for Scholars, Publishers, and Translators in the Fields of Islam and the Middle East, amici curiae.

Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Mythili Raman, Acting Assistant Attorney General, Criminal Division, Denis J. McInerney, Acting Deputy Assistant Attorney General, Criminal Division, Carmen M. Ortiz, United States Attorney, John P. Carlin, Acting Assistant Attorney General, National Security Division, and Joseph F. Palmer, Attorney, National Security Division, were on brief, for appellee.

Before HOWARD, SELYA and THOMPSON, Circuit Judges.

SELYA, Circuit Judge.

Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government's efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.

As if that were not enough, the case presents a welter of other issues. At the risk of singling out one of many, we pay particular heed to the need to appraise the district court's efforts—in the face of an avalanche of emotionally charged evidence—to hold steady and true the delicate balance between probative value and unfairly prejudicial effect. This appraisal is especially difficult in terrorism cases because it puts two competing rights on a collision course: the government's right to present its best case in support of its theories of guilt and the defendant's right to be shielded from untoward prejudice arising out of the introduction of evidence that is, at one and the same time, probative yet inflammatory.

The stage can be set quite simply. In the court below, the government aimed a barrage of terrorism-related charges at defendant-appellant Tarek Mehanna. Following a protracted trial, the jury convicted him on all counts. The defendant, ably represented and supported by a coterie of earnest amici, challenges not only these convictions but also his 210–month sentence. After careful consideration of the massive record, the defendant's prolific arguments,and the controlling law, we affirm.

I. OVERVIEW

We start with an overview of the charges lodged against the defendant and then outline the travel of the case.

This appeal has its genesis in an indictment returned by a federal grand jury sitting in the District of Massachusetts. In its final form, the indictment charged the defendant with four terrorism-related counts and three counts premised on allegedly false statements. The terrorism-related counts included one count of conspiracy to provide material support to al-Qa'ida (count 1); one count of conspiracy to provide material support to terrorists knowing or intending its use to be in violation of 18 U.S.C. §§ 956 and 2332 (count 2); one count of providing and attempting to provide material support to terrorists, knowing and intending its use to be in violation of 18 U.S.C. §§ 956 and 2332 (count 3); and one count of conspiracy to kill persons in a foreign country (count 4). The remaining counts included one count of conspiracy to make false statements as part of a conspiracy to commit an offense against the United States (count 5) and two counts of knowingly and willfully making false statements to federal officers (counts 6 and 7). See18 U.S.C. §§ 371, 1001. For the reader's convenience, we have annexed to this opinion an appendix delineating the pertinent portions of the relevant statutes.

Counts 1 through 3 (the conspiracy and material support charges) were based on two separate clusters of activities. The first cluster centered on the defendant's travel to Yemen.¹ We briefly describe that trip.

In 2004, the defendant, an American citizen, was 21 years old and living with his parents in Sudbury, Massachusetts. On February 1, he flew from Boston to the United Arab Emirates with his associates, Kareem Abuzahra and Ahmad Abousamra.² Abuzahra returned to the United States soon thereafter but the defendant and Abousamra continued on to Yemen in search of a terrorist training camp. They remained there for a week but were unable to locate a camp. The defendant then returned home, while Abousamra eventually reached Iraq.

The second cluster of activities was translation-centric. In 2005, the defendant began to translate Arab-language materials into English and post his translations on a website—at-Tibyan—that comprised an online community for those sympathetic to al-Qa'ida and Salafi–Jihadi perspectives. Website members shared opinions, videos, texts, and kindred materials in online forums. At least some offerings that the defendant translated constituted al-Qa'ida-generated media and materials supportive of al-Qa'ida and/or jihad.³

The false statement counts (counts 5 through 7) related to statements that the defendant made during the course of an investigation by the Federal Bureau of Investigation (FBI) into his activities and those of his confederates. This investigation began in or around 2006. The statements specified in the indictment concerned the whereabouts and activities of one Daniel Maldonado, as well as the purpose and ultimate destination of the defendant's trip to Yemen.

After considerable pretrial skirmishing, not material here, trial commenced. It lasted some 37 days. The district court refused to grant judgment of acquittal on any of the seven counts. The jury convicted the defendant on all of them, and the district court imposed a 210–month term of immurement.

This timely appeal ensued. In it, the defendant challenges his convictions, various evidentiary rulings, and his sentence. We address below the more substantial components of this asseverational array. A few points are not addressed at all because we have found them to be insufficiently developed, patently meritless, or both. In addition, the amici have attempted to raise some issues not preserved by the defendant. We disregard those attempts. The law is settled that amici cannot ordinarily introduce into a case issues not briefed and argued by the appellant. See United States v. Chiaradio, 684 F.3d 265, 284 n. 7 (1st Cir.) (“[W]e adhere to the established principle that an amicus may not ‘interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore.’ ” (quoting Lane v. First Nat'l Bank of Bos., 871 F.2d 166, 175 (1st Cir.1989))), cert. denied,––– U.S. ––––, 133 S.Ct. 589, 184 L.Ed.2d 386 (2012). This case presents no occasion for departing from this general rule.

II. THE TERRORISM–RELATED COUNTS

The centerpiece of the defendant's challenge to his convictions on the four terrorism-related counts is his binary claim that these convictions are neither supported by the evidence nor constitutionally permissible.

A. Sufficiency of the Evidence.

We review de novo challenges to the sufficiency of the evidence. See United States v. Gobbi, 471 F.3d 302, 308 (1st Cir.2006). This review eschews credibility judgments and requires us to take the facts and all reasonable inferences therefrom in the light most favorable to the jury's verdict. See United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.1993). Using this lens, we must determine whether a rational jury could have found that the government proved each element of the crimes charged beyond a reasonable doubt. See id. To withstand a sufficiency challenge, a guilty verdict need not be an inevitable outcome; rather, “it is enough that the finding of guilt draws its essence from a plausible reading of the record.” Id.

To put the defendant's sufficiency challenge into a workable perspective, it is helpful to trace the anatomy of the four terrorism charges. Count 1 charges the defendant with conspiring to violate 18 U.S.C. § 2339B, which proscribes “knowingly provid[ing] material support or resources to a foreign terrorist organization.” Id. § 2339B(a)(1). To satisfy the intent requirement of section 2339B, a defendant must have “knowledge about the organization's connection to terrorism.” Holder v. Humanitarian Law Project ( HLP ), 561 U.S. 1, 130 S.Ct. 2705, 2717, 177 L.Ed.2d 355 (2010). A specific intent to advance the organization's terrorist activities is not essential. See id.; see also United States v. Al Kassar, 660 F.3d 108, 129 (2d Cir.2011) (identifying “two express scienter requirements: that the aid be intentional and that the defendant know the organization he is aiding is a terrorist organization or engages in acts of terrorism”).

In this case, the defendant does not dispute that al-Qa'ida was and is a foreign terrorist organization (FTO). Nor could he credibly do so. SeeRedesignation of Foreign Terrorist Organizations, 68 Fed.Reg. 56,860, 56,862 (Oct. 2, 2003); Redesignation of Foreign Terrorist Organization, 66 Fed.Reg. 51,088, 51,089 (Oct. 5, 2001); see also United States v. Farhane, 634 F.3d 127, 135 n. 7 (2d Cir.2011). By like token, the record leaves no doubt that the defendant was aware of al-Qa'ida's status.

Count 2 charges the defendant with conspiring to violate 18...