United States v. Rahim
| Decision Date | 21 May 2021 |
| Docket Number | No. 19-11341,19-11341 |
| Parties | UNITED STATES OF AMERICA, Plaintiff—Appellee, v. SAID AZZAM MOHAMAD RAHIM, Defendant—Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeal from the United States District Court for the Northern District of Texas
Before HAYNES, GRAVES, and WILLETT, Circuit Judges.
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Said Azzam Mohamad Rahim was convicted of conspiring and attempting to provide material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B, as well as making false statements to federal agents in violation of 18 U.S.C. § 1001. He was sentenced to 360 months of imprisonment. He challenges the sufficiency of the evidence on eachconviction and asserts a violation of his Sixth Amendment right to confrontation. He also appeals his sentence. We AFFIRM.
In spring 2016, the FBI became aware of the internet-based application, Zello, amid suspicions that some of its users were utilizing the app as a means of supporting the Islamic State of Iraq and al-Sham ("ISIS"), an organization designated by the Secretary of State as a Foreign Terrorist Organization. See 69 Fed. Reg. 75587 (Dec. 17, 2004); United States v. Khan, 938 F.3d 713, 714 (5th Cir. 2019). Zello allows users to talk to other users walkie-talkie style. For instance, a user can talk to one person or broadcast to a channel—a group of up to 6,000 live users—by pushing a button and speaking. Only one person can talk at a time. Further, Zello users fall into one of several categories. Normal users may only listen to the channel, whereas a trusted user can speak on the channel. A moderator manages users by blocking, muting, or designating them as trusted users. An administrator, in addition to having a moderator's capabilities, can also designate users as moderators. While an administrator has substantial control over the channel, it cannot remove the channel, set the password, or assign users as administrators. Only the owner of the channel can do so.
From its investigation, the FBI discovered the existence of the channel on Zello, which had over 10,000 subscribers and was devoted to disseminating ISIS propaganda and recruiting followers. The channel had a "formalized structure," in which it was divided into three divisions—dialogue, information and media information, and administrative control—each of which had one or more administrators. The channel was open, so any Zello user could listen to its content.
Defendant/Appellant Said Azzam Mohamad Rahim ("Rahim"), a U.S. citizen, and Ibn Dawla1 served on multiple committees of the channel and frequently conversed about delineating responsibilities and "spreading the message." Rahim served on the Coordination Committee and the Media Committee. He was also the "Emir" of the Dialogue Committee, which means leader and is considered a title of respect. He was regarded as an expert on ISIS by other users.
As an administrator and moderator on the channel, Rahim took over 2,000 administrative actions, such as designating, muting, and removing trusted users. Rahim strictly enforced the channel's rules, and those who disobeyed the rules suffered adverse consequences, such as being blocked or muted.
Rahim was also a frequent voice on the channel, often answering users' questions and giving lengthy sermons. According to expert testimony, Rahim "was somebody with fairly deep knowledge and understanding of ISIS, of its jargon, of its strategy, of its priorities, of its operations." He repeatedly invoked ISIS terminology and its leaders, including: (1) Abu Bakr al-Baghdadi ("al-Baghdadi"), the leader of ISIS; (2) Abu Mohammed al-Adnani ("al-Adnani"), the main spokesperson for ISIS; (3) the "Caliphate," which refers to the territory in Iraq and Syria that ISIS previously controlled and declared as an Islamic state; and (4) the "Caliph," a term used to described the leader of the Caliphate, and the self-proclaimed title of al-Baghdadi.
With an in-depth understanding of ISIS, Rahim focused his Zello activities on two objectives: recruiting fighters to travel to the Caliphate tojoin ISIS there, and inciting and counseling followers to commit terrorist attacks in ISIS's name in other countries. He encouraged listeners to "mobilize" to the Caliphate and "pledge allegiance" to al-Baghdadi. He boasted of the channel's role in recruiting followers for ISIS; Rahim once described a former user who expressed that he no longer wanted to be a "hypocrite" and ended up traveling to the Caliphate to join ISIS.
Rahim also encouraged those who could not travel to the Caliphate, even young children, to engage in terrorist attacks in their respective countries, saying: He even took personal responsibility for the January 1, 2017 attack in Istanbul, Turkey:
Additionally, Rahim celebrated multiple terrorist attacks committed on behalf of ISIS. After the June 12, 2016 attack in Orlando, Florida, Rahim spoke on the channel: "[W]e rejoice for this attack which took place in America . . . Now starts the outreach activity at all mosques, especially in America, to publicize, to publicize this operation." After the July 14, 2016 attack in Nice, France, Rahim stated:
In early 2017, Rahim stopped speaking on the channel. On March 5, 2017, he arrived at the Dallas-Fort Worth International Airport to board a flight to Amman, Jordan. He last traveled to Jordan in 2010. He had with him $6,000 in cash, three SIM cards, two cell phones wiped of all social media,his birth certificate, and his passport. As he approached the gate, FBI Special Agents Dwayne Golomb and Dan Glick asked to speak with him; Rahim voluntarily agreed.
The agents asked Rahim a series of questions, to which he answered no: (1) "Have you ever discussed with anyone travel for the purpose of jihad?"; (2) "Have you ever been a supporter of the Islamic State, ISIL, ISIS, Daesh?"; (3) "Have you ever promoted violence on behalf of the Islamic State, ISIS, ISIL, Daesh?"; (4) "Have you yourself ever encouraged anyone to follow [the] guidance of Abu Mohammed Al Adnani, including his instruction to kill infidels without consultation or permission?"; (5) "[H]ave you ever promoted an act of terrorism?"; and (6) "[H]ave you ever praised an act of terrorism?" Upon exiting the interview, Rahim was arrested for making false statements to the agents.
A grand jury charged Rahim with eight criminal counts in a second superseding indictment. Count One charged Rahim with conspiracy to provide material support to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B; Count Two charged him with attempt to provide material support to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B; and Counts Three through Eight charged him with making a false statement to a federal agency in violation of 18 U.S.C. § 1001.
The Government sought to introduce as evidence audio recordings of Rahim from the Zello app. The district court held a final pretrial conference, during which FBI Special Agent Matthew Fine, also Chief of the FBI's Data Intercept Technology Unit ("Unit"), testified about the collection of the audio recordings of Rahim for the purposes of authentication. Specifically, Special Agent Fine testified that the recordings were obtained by the FBI through its normal process of conducting electronic surveillance pursuant toa court order: the Unit receives a court order; it reviews, validates, and authenticates the order; and then the order is generated into the system to begin electronic surveillance and data collection. During this process, a communication provider may be bound to deliver lawful intercept on behalf of the government through a court order, meaning that the data is collected by the communication provider and then provided to the FBI. During cross-examination, defense counsel was prevented from asking certain questions concerning specific details of the FBI's electronic surveillance program.
A four-day jury trial ensued, after which Rahim was found guilty on all counts. The Presentence Investigation Report ("PSR") applied a 2-level enhancement under U.S.S.G. § 2M5.3(b)(1)(E) and a 12-level terrorism enhancement under U.S.S.G. § 3A1.4. Based on a total offense level of 40 and a criminal history category of VI, the PSR calculated the applicable Guidelines range as 360 months (30 years) to 1,056 months (88 years) of imprisonment. Overruling Rahim's objections to the enhancements, the district court sentenced him to 360 months of imprisonment. Rahim timely appealed.
Rahim preserved his challenge to the sufficiency of the evidence by moving for a judgment of acquittal at the close of the Government's case. We review preserved challenges to the sufficiency of the evidence de novo, but with "substantial deference to the jury verdict." United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018). A conviction must be affirmed "if, after viewing the evidence and all reasonable inferences 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. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc).
18 U.S.C. § 2339B makes it a crime to knowingly...
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