United States v. Musaibli

• Decision Date: 02 August 2022
• Docket Number: 22-1013
• Citation: 42 F.4th 603
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ibraheem Izzy MUSAIBLI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

42 F.4th 603

UNITED STATES of America, Plaintiff-Appellant,

v.Ibraheem Izzy MUSAIBLI, Defendant-Appellee.

No. 22-1013

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2022

Decided and Filed: August 2, 2022

ARGUED: Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellant. John A. Shea, Ann Arbor, Michigan, for Appellee. ON BRIEF: Daniel R. Hurley, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellant. John A. Shea, Ann Arbor, Michigan, James R. Gerometta, Fabián Rentería Franco, OFFICE OF THE FEDERAL COMMUNITY DEFENDER, Detroit, Michigan, for Appellee.

Before: BOGGS, MOORE, and GRIFFIN, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

International terrorism raises a host of complex legal issues, not the least regarding the rule against hearsay. For example, if a criminal defendant is alleged to have been part of a terrorist group, then do records documenting that group's organizational structure, logistics, and activities qualify as statements of co-conspirators under Federal Rule of Evidence 801(d)(2)(E) ? This interlocutory appeal poses that question. Because the district court answered incorrectly, we REVERSE its denial of the government's motion to admit the evidence at issue and REMAND with instructions that this evidence may be admitted. Consequently, the government's motion to expedite is DENIED as moot.

I. BACKGROUND

A. Facts

Amidst the fallout of the 2003 invasion of Iraq, the Arab Spring of 2011, and the ongoing Syrian Civil War, a new terrorist group emerged near the Syrian-Iraqi border: the Islamic State of Iraq and Syria ("ISIS"). Unlike other terrorist groups in the region, ISIS set as its goal the conquest of territory that it would then administer as a state. R. 166 (06/28/2021 Evidentiary Hr'g Tr. at 27:2–8) (Page ID #1764); R. 167 (06/29/2021 Evidentiary Hr'g Tr. at 274:22–275:6) (Page ID #2011–12). ISIS made this aim clear in 2014 when it announced that it sought to create a "Caliphate," or a self-proclaimed "Islamic State." R. 167 (06/29/2021 Evidentiary Hr'g Tr. at 326:17–327:5) (Page ID #2063–64). By this time, the group already controlled large swaths of territory in both Syria and Iraq. Id.

Territorial expansion, however, required more than willpower. It took logistics. In acquiring additional lands in Syria and Iraq, ISIS acquired additional resources, including oil fields and millions of dollars from the region's financial institutions. Id. at 304:20–22 (Page ID #2041). The number of ISIS's members also ballooned as the group's influence over these lands spread. Id. at 274:6–9 (Page ID #2011). This growth spurred the need for organization, and so to administer its expansive domain, manage its troops, and allocate its resources, the terrorist group became increasingly bureaucratic. Id. ISIS accordingly divided its operations into ministries to manage its affairs. Id. at 283:19–22 (Page ID #2020). These included offices that focused on matters such as finances and defense. Id.

As the existence of a ministry of defense connotes, ISIS applied this bureaucratic mindset to how it structured and operated its military. Units were divided into divisions and then subdivided into battalions. R. 166 (06/28/2021 Evidentiary Hr'g Tr. at 87:10–20) (Page ID #1824). Before being assigned to a battalion, fighters underwent religious, ideological, and military training.

Id. at 144:10–145:16 (Page ID #1881–82). For their services, fighters were paid a monthly salary and their dependents received benefits if a fighter was killed in combat. Id. at 145:22–25, 152:21–25 (Page ID #1182, 1889). ISIS maintained payroll records to help to administer the salaries and keep track of its members. R. 167 (06/29/2021 Evidentiary Hr'g Tr. at 285:18–286:2, 292:7–18) (Page ID #2022–23, 2029).

Given its complexity, the lifeblood of this bureaucracy was information and ISIS accordingly kept detailed entries in databases about its fighters. These entries included the names of fighters' family members, their country of origin, their birthday, and their "kunya," a fighter's internal military name. R. 166 (06/28/2021 Evidentiary Hr'g Tr. at 150:16–19, 162:12–17) (Page ID #1887, 1899). In a similar vein, ISIS monitored and recorded the combat readiness of its fighters. Id. at 150:20–23. Fighters were assigned unique ten-digit numbers akin to Social Security numbers to facilitate administration. Id. at 77:19–21, 133–35 (Page ID #1814, 1870–72). Only those who swore allegiance to ISIS received an identification number. R. 167 (06/29/2021 Evidentiary Hr'g Tr. at 337:23–338:11) (Page ID #2074–75).

Among those allegedly recruited to fight for ISIS was the defendant, Ibraheem Izzy Musaibli. Originally from Dearborn, Michigan, Musaibli moved to Yemen in April 2015. Appellee Br. at 4. He concedes that he then traveled from there to Syria in the fall of 2015. Id. What happened in Syria, on the other hand, is a matter of dispute. Whereas Musaibli claims that he was forced to join ISIS, the government claims that his allegiance was voluntary. Id. ; Appellant Br. at 5–6. In the government's timeline, Musaibli freely attended an ISIS-run religious training camp from October to November 2015 before undergoing military training from December 2015 to January 2016. R. 185 (Bill of Particulars at 2) (Page ID #2243).

Regardless of why he was there, Musaibli traveled to Iraq and attended a military training camp sometime after entering Syria. Approximately forty nascent fighters, including, as he later admitted, Musaibli, were present at the training in the Iraqi city of Mosul, which lasted for twenty days. Ex. E.1 (Gary Interview at 4, 7). There, Musaibli was instructed in matters such as physical fitness, how to operate an assault rifle, and ways to conduct ambushes. Id. at 5, 7–11. The training culminated in Musaibli and his fellow attendees swearing allegiance to ISIS. Id. at 15–16.

ISIS collected information from Musaibli, as it did from other fighters. Various entries in the terrorist group's databases included his birthday. See, e.g. , R. 166 (06/28/2021 Evidentiary Hr'g Tr. at 29:7–8, 84:15–16) (Page ID #1766, 1821). Likewise, Musaibli's kunya, "Abu ‘abd al-Rahman al-Yemeni," appears throughout the databases next to his birthday. Id. at 28:23–29:1, 74:4–9, 83:25–84:18 (Page ID #1765–66, 1811, 1820–21). Musaibli corroborated that this was his kunya. Ex. E.1 (Gary Interview at 19). As with other members of the battalion, Musaibli also had an identification number—1200015723—and this, too, recurred next to his birthday and kunya in different entries. R. 166 (06/28/2021 Evidentiary Hr'g Tr. at 83:16–24, 250:5–19) (Page ID #1820, 1987). Numbers starting with 120 were associated in ISIS's bureaucracy with non-Iraqi and non-Syrian fighters, though not exclusively so. R. 167 (06/29/2021 Evidentiary Hr'g Tr. at 336:12–337:1) (Page ID #2073–74).

These entries were not always perfect. Musaibli's name was sometimes misspelled. R. 166 (06/28/2021 Evidentiary Hr'g Tr. at 233:8–12, 236:2–15) (Page ID #1970, 1973). Other mistakes with ISIS's recordkeeping were more serious. Different fighters had incorrect birthdates in their entries, were erroneously listed as either dead or alive, and had the number of their dependents fraudulently altered to increase their monthly stipend. Id. at 236:16–237:20 (Page ID #1973–74). Although the database administrators failed to correct every mistake, such issues did not escape Musaibli's notice. On one occasion, he complained to an administrator, Abdelhamid Al-Madioum, that despite his entries reporting otherwise, he was married and should be receiving a marital stipend. Id. at 224:4–7, 251:16–252:15 (Page ID #1961, 1988–89).

Nor was Musaibli's service in ISIS without blemish. Because of his nationality, Musaibli was assigned to the Tariq Bin Ziyad battalion, which was composed mainly of non-Iraqi and non-Syrian fighters and numbered between 100 and 150 members. Id. at 75:2–4, 145:18–19 (Page ID #1812, 1882). After training, Musaibli was sent with the battalion to Hit, Iraq, where fighting was ongoing. Ex. E.1 (Gary Interview at 19); United States v. Musaibli , No. 18-20495, 577 F.Supp.3d 609, 613-14 (E.D. Mich. Dec. 28, 2021). His main duties appear to have been conducting "Ribat," which the government has explained is a form of armed guard duty near the frontline. Ex. E.1 (Gary Interview at 9–10); Musaibli , 577 F.Supp.3d at 613-14. His performance of these responsibilities was tainted, however, as someone in ISIS documented that Musaibli "left the frontline twice without permission." Ex. 1. Musaibli later alleged that he was a hostage of ISIS and imprisoned by the group ten times while he was in Syria and Iraq. R. 163 (06/21/2021 Mot. to Suppress Hr'g Tr. at 279:2–3) (Page ID #1605).

During his tenure with ISIS, Musaibli also communicated with family members on various occasions. Through messages sent on Facebook, for instance, Musaibli told family members that he was with ISIS in Iraq and that he was fighting Americans and Shia Muslims there. R. 163 (06/21/2021 Mot. to Suppress Hr'g Tr. at 265:23–266:9) (Page ID #1591–92); Ex. L (Facebook R. at 114). On another occasion, Musaibli encouraged his family to travel to ISIS territory. R. 163 (06/21/2021 Mot. to Suppress Hr'g Tr. at 270:1–21) (Page ID #1596). He was apparently unsuccessful at that endeavor, and in August 2016 Musaibli's cousin asked him whether he wanted to leave ISIS. Musaibli responded to the effect that he was not ready to go yet. Id. at 267:7–11 (Page ID #1593); Ex. L (Facebook R. at 270–71). Musaibli separately relayed to his father the kunya that he used. R. 166 (06/28/2021 Evidentiary Hr'g Tr. at 84:4–13) (Page ID #1821).

Musaibli departed from the region two years later. Over several weeks in April and early June 2018, Musaibli exchanged messages with a federal agent about the possibility of leaving Syria. United States v. Musaibli , No. 18-20495, 575 F.Supp.3d 870, 875-76 (E.D. Mich. Dec. 13, 2021). By June...