United States v. Musaibli
| Decision Date | 28 December 2021 |
| Docket Number | Case Number 18-20495 |
| Citation | 577 F.Supp.3d 609 |
| Parties | UNITED STATES of America, Plaintiff, v. Ibraheem Izzy MUSAIBLI, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Kevin Mulcahy, Cathleen M. Corken, U.S. Attorneys, U.S. Attorney's Office, Hank Moon, U.S. Attorney, U.S. Department of Justice, Detroit, MI, for Plaintiff.
Federal Community Defender, Fabian Renteria Franco, James R. Gerometta, Public Defenders, Federal Defender Office, Detroit, MI, John A. Shea, Ann Arbor, MI, for Defendant.
Defendant Ibraheem Izzy Musaibli is charged with crimes involving the provision of material support to a terrorist organization and receiving military-type training from a foreign terrorist organization, that organization being the Islamic State of Iraq and al-Sham (ISIS). Before the Court is the government's motion for pretrial rulings on the admissibility of several documents attributed to ISIS military operations, which it intends to offer as evidence at trial. The Court held an evidentiary hearing on the motion at which six witnesses testified and thirteen sets of documents and a video were presented. The evidentiary questions to be resolved are whether there is enough evidence to establish that the documents and video are authentic, whether the documents constitute hearsay, and if they do, whether a hearsay exception applies.
Based on the evidence presented at the hearing, it appears that many of the documents are authentic, if not accurate. Because the government's purpose for offering the documents in evidence is to prove the assertions they contain, all of the documents would amount to hearsay, unless they could be excluded from that definition under Federal Rule of Evidence 801(d)(2)(E) as statements made during the course and in furtherance of a conspiracy. That determination, however, cannot be made based on the record thus far established. If the documents do not qualify under that exclusion, then they would not be received, as no recognized or novel exception to the rule against hearsay has been established.
The government has accused Musaibli of serving as a soldier for ISIS from April 2015 through June 2018 in Syria. Musaibli, an American citizen born in Dearborn, Michigan, was supposedly radicalized in April 2015 and traveled to Yemen. Six months later, he left Yemen and traveled to Syria (by way of Saudi Arabia and Turkey), where he joined ISIS.
The government posits that after his enlistment with ISIS, Musaibli spent three weeks training with two terrorist units of the organization and then was sent to Raqqah, Syria for ten days of religious instruction. After that, he was sent to Mosul, Iraq, where he spent 20 days reading and viewing more ISIS propaganda materials, and a further 20 days being trained in an ISIS military camp. The military training began in December 2015 and ran through January 2016, and Musaibli was trained alongside 50 other fellow ISIS recruits. During his training, Musaibli allegedly was issued an assault rifle, magazines, grenades, and a tactical vest. The training included lectures on combat tactics and physical fitness routines, and the defendant was taught how to shoot and maintain his rifle and how to use other weapons such as grenades. He also was instructed in military routines such as carrying out guard duty, and on the final day of training he allegedly swore an oath of loyalty to ISIS.
The government contends that after his military training, Musaibli was assigned to the Tariq bin Ziyad (TBZ) battalion of ISIS forces, which is made up mostly of foreign fighters. His battalion then was deployed to join ongoing fighting in Hit, Iraq. While in Hit, the government believes that the defendant fought in battles and stood guard duty. He continued in service with ISIS forces for around two and a half years. He saw action on several fronts in Iraq and, finally, at ISIS's last stand in Syria, at Dayr Az Zawr.
The government proposes to introduce at trial several categories of documents to show that the defendant was enlisted with ISIS military forces and to establish the sorts of support he provided and training he received during his service. The documents were recovered during various battlefield operations and found their way into the hands of intelligence officials. They include (1) a brigade roster recovered in February 2017, (2) payroll records recovered in June 2017 in electronic form, (3) a treasury administration report recovered in December 2017 in electronic form, (4) hospital records, and (5) other documents relating to ISIS military operations that do not mention the defendant. The government identified them by exhibit numbers at a two-day hearing held in June of this year, and they will be discussed by referring to those exhibit numbers, although they are not the exhibit numbers that would be used at trial.
It appears that all the documents were obtained by the government for this case from the FBI's National Media Exploitation Center (NMEC). Joseph Pilkus, a liaison officer assigned to NMEC, testified that NMEC mainly received information from overseas Regional Exploitation Centers ("RECs"), which are facilities where information captured from enemy forces was brought for processing by the FBI and U.S. military forces. NMEC serves as a clearinghouse for all intelligence materials collected abroad, which is cataloged and examined for exploitation by interested agencies including the FBI, CIA, NSA, Department of Homeland Security (DHS), Defense Intelligence Agency (DIA), and other U.S. agencies. Pilkus testified that the primary purpose of NMEC operations was to support exploitation of materials by intelligence agencies; law enforcement usage of the information was a "smaller priority."
Pilkus testified that the NMEC houses in total between 14 and 20 petabytes of information, which is equivalent to 500 billion pages, or around 240 to 400 million four-drawer file cabinets full of paper documents. The material includes images of documents captured in paper form, as well as electronic duplicates of devices such as cell phones. Pilkus testified that only electronic copies of materials were retained because it was impractical to physically store every device and document captured. Pilkus testified that when investigators from outside agencies want to access data at the NMEC, they have to obtain a security clearance and travel to the facility in person, where they would be given access to the requested information. However, Pilkus said that a limited selection of information stored at the NMEC would be transferred to software called Harmony, which could be accessed by outside agencies without traveling to the NMEC. The information put into Harmony would include the original materials as well as the results of any analysis or translation.
FBI agent Wendy Kerner, the case agent on this case, testified that she traveled to NMEC to run searches about the defendant. She also searched the Harmony database.
Pilkus stated that his role was not to test the veracity or authenticity of the documents, but only to collect, store, and make them available for use. He acknowledged that he could not say whether any of the 500 billion pages of information stored at NMEC might contain "inaccurate" information, and that there was no way to tell. He also conceded that he had no information about, and no way to know how, any of the materials were captured or handled in the field by non-U.S. forces before they were turned over to the U.S. military. To that end, Pilkus admitted that he could not say how any of the documents or information stored by NMEC originally were created, or by whom, before they were seized and turned over to U.S. forces. He also admitted that, although he was "not aware of any falsified information" in NMEC's records, there was "no way to know" if any particular item had been falsified.
Exhibit 1 purports to be an ISIS roster listing members of the TBZ foreign fighter battalion. Michael Frost, an intelligence analysist with the Federal Bureau of Investigation (FBI), testified that the roster bore a distinctive ISIS stamp that he had seen on many similar unit rosters that he had examined. Frost, who had worked in the FBI's counter-terrorism division in Washington, D.C., was stationed in Iraq from December 2016 through April 2017 working on terrorism investigations. While in Iraq, he worked at a REC, which was a facility where information captured from enemy forces was brought for processing by the FBI and U.S. military forces. The captured material included different sorts of organizational and personnel documents and electronic storage devices captured on the battlefield. He said that the goal at the REC was to examine the information to find anything useful for understanding enemy operations or assisting U.S. operations in the theater. Frost's job was to review materials looking for persons who might be American citizens potentially subject to prosecution under U.S. law, and then produce reports summarizing any information about those persons and their activities.
In February 2017, large batches of material were being captured daily around Mosul, Iraq, and delivered to the REC. Among those materials, Frost discovered several ISIS unit rosters that listed persons known to be Americans, who were designated as "foreign fighters," meaning persons not from Iraq or Syria. One of the indications Frost looked for was the "kunya" or Arabic nickname used for each fighter listed on a unit roster. The kunya "Al-Amiriki" translates as "from America" and meant a person hailed from the United States.
The government says that Exhibit 1 lists information about 341 ISIS fighters who were enlisted in the TBZ battalion, and it highlights the following record, which it believes is a...
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United States v. Musaibli
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