United States v. Wright

• Decision Date: 22 January 2018
• Docket Number: CRIMINAL ACTION NO. 15–10153–WGY
• Citation: 285 F.Supp.3d 443
• Parties: UNITED STATES of America, v. David WRIGHT, Defendant.
• Court: U.S. District Court — District of Massachusetts

285 F.Supp.3d 443

UNITED STATES of America,

v.David WRIGHT, Defendant.

CRIMINAL ACTION NO. 15–10153–WGY

United States District Court, D. Massachusetts.

Signed January 22, 2018

B. Stephanie Siegmann, U.S. Attorney's Office, Boston, MA, Gregory R. Gonzalez, U.S. Department of Justice, Washington, DC, for United States of America.

MEMORANDUM OF DECISION

YOUNG, D.J.

Let me explain this sentence to you, Mr. Wright. In one sense this case follows a familiar arc—they've got graphs of all these things, there was superb law enforcement activity here to protect us all, your case came on reasonably promptly for trial, fair procedures throughout, a guilty verdict on overwhelming evidence, and a severe sentence. But if I stop there, I have not fully explained the reason for the sentence and we miss out on the larger issues, and they seem to me to be these[:]

You are not a monster, yet you embrace a monstrous evil. You stand before this Court a convicted terrorist, no doubt in my mind about that. You've got to live with the fact that you sent your uncle out there to be killed, laughing and chortling in the hope obviously that he would kill or maim someone else. That's on your conscience.

...

[T]rials matter, and jury trials matter especially, they really are both a test and a celebration of a free people governing themselves. Thomas Jefferson said, "The jury is the greatest anchor humankind has ever conceived for holding the government to the principles of its Constitution." And so it is here.

For the first time I, as a presiding officer, as a citizen, came to understand what it meant to be "radicalized." A couple of clicks on the computer, the dark web, and all this material is there. And like the jurors—and the government properly provided me with the full record of the evidence and I have reviewed all of it before this hearing, I have sat and watched with horrified fascination, and I admit it, the monstrous evil that you embraced.

Now ISIS is just about done, it's about to be relegated to the dust bin of history, forgotten and reviled, and whatever you say now that's what you chose[.]

[A]t the same time we are a society awash in vicarious violence and ... the evidence here ... ha[s] the hideous attraction of a snuff video. And there's [sic] always going to be restless young men in search of a cause. You made the wrong choice, a terrible choice, and in my mind you made it knowingly and this sentence reflects it. But I cannot sentence you without acknowledging that we're not going to arrest our way out of this situation. There's [sic] going to be other young men, restless, on the web—ISIS will be gone—looking for a cause.

...

I have searched my conscience as to what we do about that, and the best I can come up with is ... the life's work of Justice Sandra Day O'Connor, who challenges us to understand American democracy. [T]hat's a challenge, that's where heroism and self-sacrifice and struggling against the odds ... goes on day by day.

Court's Remarks, Transcript of David Wright's Sentencing Hearing at 53:4–55:5, United States v. Wright, No. 15–cr–10153 (D. Mass. Dec. 19, 2017), ECF No. 417.

On October 18, 2017, a jury convicted the defendant David Wright ("Wright") of five counts including conspiracy to provide material support to a designated foreign terrorist organization and obstruction of justice. Wright moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. This Court DENIED Wright's motion on December 18, 2017. Electronic Order, ECF No. 407. This memorandum explains the Court's reasoning for that and other trial-related decisions.

I. BACKGROUND

On February 15, 2017, a federal grand jury charged Wright with conspiracy to provide material support to a designated foreign terrorist organization and aiding and abetting in violation of 18 U.S.C. § 2339B(a)(1) and 18 U.S.C. § 2 ("Count 1"); conspiracy to obstruct justice in violation of 18 U.S.C. § 371 ("Count 2"); obstruction of justice and aiding and abetting in violation of 18 U.S.C. § 1519 and 18 U.S.C. § 2 ("Count 3"); conspiracy to commit acts of terrorism transcending national boundaries in violation of 18 U.S.C. § 2332b(a)(2) and (c) ("Count 4"); and obstruction of justice in violation of 18 U.S.C. § 1519 ("Count 5"). See Second Superseding Indictment, ECF No. 171.

Wright's trial began on September 18, 2017 and ran until October 17, 2017. During the thirteen-day trial, the government presented evidence that Wright conspired with several individuals, including his uncle, Usaamah Abdullah Rahim ("Rahim"), co-defendant Nicholas Rovinski ("Rovinski"), and others to support the Islamic State of Iraq and Syria ("ISIS"). The government contended that Wright recruited Rahim and Rovinski in efforts to organize a terrorist cell in Massachusetts. Evidence showed that the group initially planned to join ISIS in Syria, but then changed course when ISIS issued a fatwa against American journalist Pamela Geller ("Geller"). Rovinski testified that, at that point, Wright, Rahim, and Rovinski conspired to behead Geller pursuant to that fatwa. Much of their planning, communication, and recruiting efforts took place via the internet, where Wright distributed ISIS propaganda, researched various weapons, managed a Twitter account advocating pro–ISIS beliefs, and chatted with other ISIS supporters. One of these individuals, Zulfi Hoxha ("Hoxha"), was an individual living in the United States whom Wright successfully encouraged to travel to Syria and join ISIS. Other individuals with whom Rahim communicated included an individual seemingly located in Turkey whose online moniker was "abu3antar" ("Abu Antar"), as well as a shadowy individual who operated numerous Twitter accounts under the name "Abu Hussain al–Britani" ("Abu Hussain"). Evidence was presented showing that this second individual was in fact Junaid Hussain, an ISIS member in Syria.

On the morning of June 2, 2015, Rahim called Wright and told him that he planned to attack law enforcement officers on behalf of ISIS. Wright encouraged Rahim to do so, instructing him to destroy his electronic devices before the attack. Shortly thereafter, Rahim attacked several police officers in a Roslindale parking lot and was killed. After learning of this incident, Wright erased the data on his computer by restoring it to its original factory settings. Law enforcement officers arrested Wright later that day, searched his home, and conducted a lengthy interview with him.

The jury convicted Wright on all counts. Wright moved to set aside the verdict and ordered a new trial on November 2, 2017. Def. Wright's Mot. New Trial ("Def.'s Mot."), ECF. No. 393. The government opposed the motion. Gov't Opp'n Def.'s Mot. ("Gov't Opp'n"), ECF No. 395. This Court DENIED the motion on December 18, 2017. Electronic Order, ECF No. 407.

II. PRE–TRIAL RULING

Prior to trial, the government sought to introduce the certified conviction in a court of the United Kingdom (U.K.) of one Junaid Hussain of "Causing [a] Computer to Perform [a] Function with Intent to Secure Unauthorized Access" in the United Kingdom to support the inference that this British citizen is Abu Hussain, a U.K. born terrorist and "hacker," who assisted Wright with the alleged terrorist plot, and the subject of a telephone call between Wright and Rahim on May 26, 2015. Gov't's Opp'n to Def.'s Mot. in Lim. Exclude Crim. Conviction of Junaid Hussain 1 ("Gov't's Opp'n Mot. Lim."), ECF No. 260.

Wright moved in limine to exclude the criminal conviction of Junaid Hussain on the grounds that no exception to the rule against hearsay applied. Def.'s Mot. in Lim. Exclude Crim. Conviction of Junaid Hussain 1 ("Def.'s Mot. Lim."), ECF No. 250. Specifically, Wright contended: (i) Federal Rule of Evidence 803(22) is the only exception under which this Court could admit the foreign conviction of Junaid Hussain, and (ii) the foreign conviction of Junaid Hussain is not a public record within the meaning of Federal Rule of Evidence 803(8). Def.'s Mot. Lim. 2. In response, the government argued that the conviction of Junaid Hussain was admissible under either Rule 803(8) as a public record or Federal Rule of Evidence 807, the residual exception to the rule against hearsay. Gov't's Opp'n Mot. Lim. 1. There was no dispute that Junaid Hussain's conviction was properly authenticated. Def.'s Mot. Lim. 1.

This Court DENIED the motion on September 15, 2017, Electronic Order, ECF No. 318, and will explain its ruling below.

A. Rule 803(22) is not a Rule of Exclusion

Rule 803(22) provides that "[e]vidence of a final judgment of conviction" is not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness, if, among other requirements, "(C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant." Fed. R. Evid. 803(22).

Both parties appear to agree that Rule 803(22) does not apply here. See Def.'s Mot. Lim. 1 (stating that the conviction is not against the defendant); Gov't's Opp'n Mot. Lim. 1 (implicitly conceding the inapplicability of Rule 803(22) by arguing that Rule 803(8) or Rule 807 applies instead). Therefore, the only issue left here is whether the inapplicability of Rule 803(22) excludes the application of other hearsay exceptions.

Without citing any authorities, Wright argues that Rule 803(22) is "[t]he only possible vehicle for the admission" of prior convictions and because Rule 803(22)"on its face excludes third party convictions," Junaid Hussain's conviction is inadmissible. Def.'s Mot. Lim. 2. This Court disagrees.

In Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999), the First Circuit refused to interpret Rule 803(22) as an affirmative bar of certain final judgments excepted from the rule. Id. at 62–63 ("Evidence of a final judgment that does not fall within [ Rule 803(22) ] could still be admissible, either because it...