United States v Al-moayad 2008

United States Court of Appeals, Second Circuit.

U.S. v. AL-MOAYAD

545 F.3d 139 (2d Cir. 2008)

Decided October 2nd, 2008 Argued November 26th, 2007

UNITED STATES of America, Appellee,v. Mohammed Ali AL-MOAYAD,Mohammed Mohsen Zayed, Defendants-Appellants.

Docket Nos. 05-4186-cr (L), 05-4838-cr(CON).

United States Court of Appeals, SecondCircuit.

Argued: November 26, 2007.

Decided: October 2, 2008.

Appeal from the United States District Court for theEastern District of New York, Sterling Johnson, Jr., J.*140

Robert J. Boyle, New York, NY, for Defendant-Appel-lant Mohammed Ali Al-Moayad.

Steven A. Feldman, Feldman Feldman, Uniondale,NY, for Defendant-Appellant Mohammed MohsenZayed.

Pamela K. Chen, Jeffrey H. Knox, Assistant UnitedStates Attorneys (David C. James, Assistant UnitedStates Attorney, on the brief), for Roslynn R.Mauskopf, United States Attorney for the EasternDistrict of New York, for Appellee.

Before: McLAUGHLIN, B.D. PARKER, and WES-LEY, Circuit Judges.

[EDITORS' NOTE: THIS PAGE CONTAINS HEAD-NOTES. HEADNOTES ARE NOT AN OFFICIALPRODUCT OF THE COURT, THEREFORE THEYARE NOT DISPLAYED.] *141





B.D. PARKER, JR., Circuit Judge:

Defendants Mohammed Ali Al-Moayad ("Al-Moayad") and Mohammed Mohsen Zayed ("Zayed")appeal from judgments of conviction in the UnitedStates District Court for the Eastern District of NewYork (Johnson, J.). Both were convicted of conspiring

to provide material support to designated terrorist or-ganizations Hamas and Al-Qaeda, and attempting to

U.S. v. AL-MOAYAD, 545 F.3d 139 (2d Cir. 2008)

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provide material support to Hamas. See 18 U.S.C. §

2339B(a)(1). Al-Moayad was also convicted of at-tempting to provide material support to Al-Qaeda andproviding material support to Hamas. Id. Al-Moayad

was sentenced to the statutory maximum of 180months' imprisonment on each count, which the dis-trict court directed would run consecutively for a totalperiod of incarceration of 900 months. The districtcourt also sentenced Zayed to the statutory maximumof 180 months on each count to run consecutively, fora total of 540 months' imprisonment. We concludethat the district court committed evidentiary errorsthat were sufficiently prejudicial as to deprive the de-fendants of a fair trial. We therefore vacate the con-victions and remand for further proceedings.

I. BACKGROUND A. Government's

Evidence Against the Defendants

1. FBI investigation

The convictions arose from an investigation and stingoperation conducted principally by the Federal Bureauof Investigation. At trial, the jury heard testimonyfrom various witnesses describing the operation andthe events that led to the prosecution, and viewedvideo tapes of FBI-orchestrated meetings between thedefendants and government informants that tookplace in Frankfurt, Germany in January 2003.

In investigating the defendants, the government reliedheavily on the assistance of a confidential informantnamed Mohammed Al-Anssi, 1 a Yemeni nationalwho later played a central role in the sting operation.The government did not call Al-Anssi as a witness,but the defendants did, as the main thrust of their de-fense *146 was that they were entrapped by Al-Anssi.

Al-Anssi testified that in November 2001, promptedby the events of September 11, 2001, he approachedthe FBI to offer information relating to terrorism. Hedescribed meeting with FBI Special Agent Brian Mur-phy in Washington, D.C. and giving him a list of indi-

viduals about whom he claimed to have information,including defendant Al-Moayad.

1.

Al-Anssi testified that he first met Al-Moayad inYemen in 1995. According to Al-Anssi, they wereneighbors in Yemen, and Al-Moayad was the imamof a mosque. Al-Anssi stated that Al-Moayad also rana bakery and a school.2 Al-Anssi further testified thatin 1996 or 1997, he learned from Al-Moayad that hewas involved in supplying money, arms, and recruitsto terrorist groups. After Al-Anssi relayed this infor-mation to Murphy, Murphy enlisted Al-Anssi as hisprincipal informant and used him to help develop thegovernment's case against Al-Moayad, and later Za-yed.

2.

Al-Anssi did not offer his assistance for free. Rather,he admitted that he was in difficult financial circum-stances when he approached the FBI and that hesought compensation in exchange for information.Al-Anssi testified that in 2001, he was in the UnitedStates on a tourist visa. He was heavily in debt, lookingfor work, and in need of assistance for himself andhis family. Al-Anssi initially asked the FBI for 5 milli-on dollars in exchange for his assistance, "hoping thatit will go up, no problem." He also requested UnitedStates citizenship and that his family be brought to theUnited States from Yemen. In describing his motivefor seeking compensation, Al-Anssi testified, "the is-sue was the truth, the whole issue, and after I chase the

Many different spellings of the Arabicnames, words, and phrases that arise in thiscase appear in the parties' briefs and appen-dices, the trial transcript, and other sources.For the sake of simplicity, we use only onespelling for each foreign name or word and donot indicate alterations in quotations.

At trial, the government did not contest theproposition that the bakery and school werecharitable endeavors, although Al-Anssi testi-fied that their establishment was politicallymotivated.




terrorists and to bring him here to America, I deserveeven 10 million dollars."

Al-Anssi stated that he was paid $100,000 by the FBIfor his assistance. However, he believed that he de-served millions, "[a]nd I expect more than that." Al-Anssi admitted that, because he was upset about hissmall payment from the FBI, he falsely told the Wash-ington Post that the FBI promised to pay him 5 mil-lion dollars. He also testified that in November 2004,in an attempt to coerce the FBI into paying him moremoney, he set himself on fire in front of the WhiteHouse. With regard to this incident, Al-Anssi testifiedthat he did not intend to commit suicide, but that he"wanted to put the government and the world on no-tice," and that "[i]t is my right to get as much as I canfrom the FBI."

As part of its investigation of Al-Moayad, the FBIsent Al-Anssi to Yemen three times in 2002. In Jan-uary 2002, Murphy sent Al-Anssi to re-establish con-tact with Al-Moayad, who was then serving as headof an organization called the Al-Aqsa foundation.3 Al-Anssi took a second trip to Yemen in May 2002 togather information about people in the United Stateswho might be involved in funding terrorist organiza-tions, and to introduce the idea of a wealthy Ameri-can named "Saeed" (actually *147 another government

informant) who wanted to donate money to supportmilitant Islamic jihad4 and the mujahidin ( i.e., armed

fighters). Al-Anssi testified that during that trip, Al-Moayad told him that he had met with Osama binLaden at some point in Afghanistan. Al-Moayad alsogave Al-Anssi a list of contacts in the United Stateswho could send money, introduced Al-Anssi to defen-dant Zayed, who was his assistant, and gave Al-Anssi atour of his bakery. Al-Anssi testified that during bothof these trips, he took notes of his conversations withAl-Moayad and delivered them to Murphy when hereturned to the United States. As discussed below, theadmissibility of these notes was a central, hotly con-tested issue at trial.

3.

4.

Al-Anssi took a third trip to Yemen in August 2002.During that trip, he attended a group wedding hostedby Al-Moayad on September 19, 2002. At the FBI's be-hest, Al-Anssi videotaped and photographed the wed-ding. According to Al-Anssi, Al-Moayad asked him toshow Saeed the pictures "to prove that this a part ofthe effort to prepare the youth for El Jihad." Duringthe wedding, Mohammed Siyam, who was identifiedat trial as the representative of Hamas in Yemen, gavea speech that Al-Anssi videotaped. Among otherthings, Siyam said the following:

Thanks be to God . . . The Father, the MujahidSheikh Abdullah bin Hussein al-Ahmar,benefactor of this honorable celebration, theHonorable Sheikh Mohammed bin Ali Ali al-Moayad, president of the high committee ofgroup weddings. May God join us to him,meaning, may we be joined to him in helpingothers get married and not to get marriedourselves, God willing. . . . I greet you withIslam's [traditional] greeting: peace be with youand God's mercy and blessings. Either thosewho organized the celebration found out aboutthe timing of Hamas's operation in Tel Aviv,that it will be today — and this is leaking thenews — so they held the wedding here to

Al-Anssi testified that Al-Moayad "told mehe is the chief of Al-Aqsa organization butfrom here I understand that is a terrorist orga-nization." However, Al-Anssi was unable dur-ing his testimony to explain why he believedAl-Aqsa was affiliated with terrorist activity,and could not identify any statement by Al-Moayad that led him to that conclusion. Asshown below, other evidence put forth at trialsuggested that Al-Aqsa was a charitable orga-nization that aids needy Palestinians.

At trial, Al-Moayad and Zayed did not chal-lenge the government's assertion that theword "jihad" refers to a "holy war," but at-tempted to establish that it could also mean"personal or inner struggle."




coincide with the wedding there. An organizedoperation, God willing, you will hear about it,you will read about it tomorrow in thenewspapers and hear about it in the media. Itbrought down many of the invading occupiers,and thanks be to God, Lord of the universe.

At trial, the government established through the tes-timony of a witness, a young Scottish law studentnamed Gideon Black, that a suicide bombing occurredon a bus in Tel Aviv that same day. Black was a pas-senger on the bus along with his cousin Yoni, whowas killed in the attack. As discussed below, Black tes-tified at length and in considerable detail about thebombing, and his testimony was a prominent featureof the government's case. The testimony was admittedover the defendants' objections that it was unrelated tothe charges against them and enormously prejudicial;the admissibility of the testimony is a central issue inthis appeal.

During the August 2002 trip, Al-Moayad gave fourpaper receipts to Al-Anssi, documenting donations tovarious organizations. Al-Anssi testified that Al-Moayad told him these groups were fronts for Hamas.Al-Anssi further claimed that Al-Moayad admittedhaving delivered more than $20 million to Bin Ladenand $3.5 million to Hamas in the past. Whether thesedonations occurred, and when, was a *148 significant

issue at trial, especially with regard to the alleged con-tributions to Bin Laden and Al-Qaeda.5

5.

During his third trip to Yemen, Al-Anssi again tooknotes purportedly memorializing his conversationswith Al-Moayad. These notes did not specify whenAl-Moayad's alleged donations to Hamas occurred,but suggested that the donations to Al-Qaeda wererelatively recent. The notes recorded that the Al-Qae-da donations occurred "during last few years and be-fore the Sept. 11th 2001." However, during his trialtestimony Al-Anssi could not, in contrast to his notes,specify when Al-Moayad allegedly provided money toeither Al-Qaeda or Hamas. As to Hamas, Al-Anssi stat-

ed that Al-Moayad "did not give me specific dates."Similarly, with regard to the Al-Qaeda donations, Al-Anssi said that Al-Moayad "did not give me dates" andconceded that it could have been delivered "[p]ossiblyin the 80s," and that "I don't know what year or overwhat years. He did not decide." When asked to explainwhat he meant in his notes by "a few years," Al-Anssistated, "I cannot be specific. It could be few years,could be less than five years or less than ten years,or ten years. . . . I would say it is before 20 years."As discussed below, other evidence presented at trialsuggested that any support that Al-Moayad may haveprovided to Al-Qaeda lasted only through the Afghanconflict in the 1980s.

2. Sting operation in Germany — video

tapes

In collaboration with German law enforcement agen-cies, the FBI arranged for Al-Moayad and Zayed tomeet with Al-Anssi and the second informant,

Bin Laden originally founded Al-Qaeda in1988 to support and train the Sunni Islamicextremist resistance against the Soviet Unionin Afghanistan. See, e.g., Office of the Coordi-

nator for Counterterrorism, U.S. Dep't ofState, Country Reports on Terrorism — 2007,Terrorist Organizations (Apr. 30, 2008), avail-

able at http://www.state.gOv/s/ct/rls/crt/

2007/103714.htm. In the late 1980s, the Unit-ed States supported the Islamic resistancefighters in this campaign by supplying themwith weapons. See, e.g., Marvin G. Weinbaum,

"Afghanistan," in Encyclopedia Brittanica, avail-

able at http://www.britannica.com/eb/

print?articleld= 106010 fullArticle=true to-cId=21412. Therefore, the question of whenAl-Moayad provided financial support to Al-Qaeda — in the late 1980s, when the UnitedStates was also supporting Bin Laden, or in re-cent years, when Al-Qaeda has engaged in at-tacks against United States interests — was acrucial issue at trial.




"Saeed," in Frankfurt, Germany in January 2003.Many of the conversations that occurred among thedefendants and the two informants over the next fewdays were captured by audio and video recorders hid-den in the defendants' hotel rooms.

The tapes showed the following. On the morning ofJanuary 7, Al-Anssi met Al-Moayad and Zayed at theFrankfurt airport and brought them to their hotel.When they arrived, Al-Moayad expressed his desireto secure money for his charity projects, including thebakery. During this conversation, no one explicitlymentioned funding terrorist activity. The governmentrepeatedly argued at trial, however, that the defen-dants' references to Al-Moayad's charitable endeavorswere actually code for various forms of support forterrorism. (The government also argued that Al-Moayad's references to going to Germany for medicaltreatment were similarly coded allusions to conspiringto support terror.) The defendants maintain on appealthat throughout the Germany meetings, they were re-ferring to actual charitable endeavors.

The tapes showed that the next day, January 8, Al-Moayad and Zayed met with Al-Anssi and Saeed.Saeed invoked verses *149 of the Qu'ran referring to

jihad, in order to establish that jihad is "basically ourbusiness." He also said, "I believe, we're working in thesame field." Al-Moayad responded, "[t]he same field.But . . . the most important thing for the Muslims isto know and learn their religion." At Saeed's request,Al-Moayad discussed his prior relationship with BinLaden, whom he said he financially supported and in-structed in Islamic law. Al-Moayad did not, however,state that he had given $20 million to Bin Laden, nordid he provide any other figure. Al-Moayad and Za-yed both clarified verbally that this relationship datedback to the 1980s, "before all these crises happened. Along time ago. . . . [b]ack in the days of Afghanistan.. . . [w]ith the Russians." Al-Moayad also mentionedhis ties to Khaled Meshal, who was identified at trialas the head of Hamas's political and military bureau.

When Saeed asked what he could do for Al-Moayad,Al-Moayad described five goals: (1) teaching peopletheir religion; (2) uniting Muslims; (3) raising youngmen in a manner of which God approves; (4) helpingyoung people in need; and (5) doing everything forGod's sake. Al-Moayad also discussed more specificprojects, including the charitable bakery, educatingMuslim women, and aiding the families of people whohave been jailed or martyred. Saeed said that he waswilling to support these projects, but that he primarilywanted to fund mujahidin. Al-Moayad replied, "[l]etme tell you that I want to be honest with you. . . . Wecan't say `yes, yes' to what you're asking then lie toyou. It's not right. And it is also not right to say `no,no' which may cause him to be discouraged, and thatis a sin." He then added that he would work "in thesefields, as they are my fields with God's permission."The rest of the meeting revolved mainly around howAl-Moayad and Zayed would meet with their Hamascontacts and arrange for Saeed's money to be used ac-cording to his wishes.

That night, Al-Anssi and the defendants discussed,again on tape, how Saeed's money would be sent.They talked about the various projects for which themoney could be designated, including the bakery, ed-ucating women, helping orphans and the elderly, andothers. Al-Anssi referred a few times to these projectsas codes, but it is not clear from the tapes whetherthe defendants were also referring to the charities ascodes.6 The three men also discussed the need totransfer Saeed's money in several people's names.

6.

Al-Moayad: No, wait, wait. Firstthing is the charitable bakery.

[Al-Anssi]: What does it standfor?

Al-Moayad: [Unintelligible]leave it as charitable bakery

For example, the following exchange wasrecorded:




[unintelligible]. It doesn't standfor anything because. . . .

[Al-Anssi]: Yeah.

Zayed: The bakery and the schoolare real entities.

[Al-Anssi]: Yeah. Fine.

Al-Moayad and Zayed met again with Al-Anssi andSaeed on January 9. Saeed asked for clarification as tohow his money would be spent, and Al-Moayad onceagain described his charitable projects. Al-Moayad al-so explained, at Saeed's request, that although he haddelivered money to Bin Laden during the "Afghani Ji-had," he distanced himself from Al-Qaeda once thatconflict was over. In response to Saeed's questionsabout the Al-Aqsa foundation, Al-Moayad describedit as a charitable organization that aids needy Pales-tinian Muslims. Saeed then asked whether his moneywould go to Hamas, Al-Qaeda, or other groups. Al-Moayad replied, "Hamas, Al-Qaeda, Massajins [pris-oners], Mujahidins, *150 and such. Anyone who we

know of, who is in the Jihad field."

The men also discussed the four receipts that Al-Moayad gave to Al-Anssi during his third trip toYemen. The government argued at trial that the re-ceipts documented contributions to groups that werefronts for Hamas and its terrorist activities. The tran-script of the conversation, however, does not clearlyreflect that conclusion. At one point, Al-Moayad didsay of one of the receipts, "this one we deliver it toHamas." About another contribution, however, he

said, "it supports everyone who needs it in Palestine,for example, someone's house in Palestine was ruined,a check is issued to him immediately to help him inrebuilding his house." In addition, Al-Moayad neverstated during the Frankfurt meetings that he had giv-en $3.5 million to Hamas.

Al-Anssi told Al-Moayad and Zayed that Saeed had$2.5 million to donate. Saeed offered to give five per-cent for Al-Moayad's charitable projects, which he

raised to ten percent at Al-Moayad's insistence.7 Theydiscussed how best to send the money, including thepossibility that Saeed could transmit it directly toHamas without Al-Moayad's and Zayed's involve-ment. Al-Anssi explained that Saeed would provideAl-Moayad and Zayed with a book of pre-signedchecks so that they could withdraw money directlyfrom his account. Near the end of the meeting, the in-formants raised the topic of the September 2002 groupwedding in Yemen. Al-Anssi explained that Saeed hadenjoyed Siyam's speech and his reference to the suicidebombing, at which point the defendants and the in-formants laughed and clapped. At trial, Al-Anssi ad-mitted the possibility that he had started laughing be-fore the defendants, and stated that "I want to makethem believe that I'm happy because of the that [sic]suicide."

7.

Later that evening, the tapes showed Al-Moayad andZayed privately expressing reservations about thearrangement with Saeed. Al-Moayad stated that "[t]heproblem is Hamas . . . this guy . . . I don't know." Theyagreed, however, to keep their word, and discussedfurther how to make arrangements with Hamas. Al-Moayad and Zayed continued the conversation withAl-Anssi the next morning, January 10. They alsocontemplated asking for more money for their chari-table work. Al-Moayad said, "[w]e'll tell him to loosenit up a bit, let us [unintelligible] for our efforts. . . .we'll tell him let us do jihad . . . we want to do jihad,but let us do jihad our way." He also said, "[o]ur workis clear: charity, the charitable bakery, and education."

The defendants' last meeting with Saeed took placelater that morning. In response to a query from Saeed,

When Al-Anssi told the defendants thatSaeed had offered five percent for their chari-ties, Zayed immediately said "[n]o," and Al-Moayad added, "[t]hat percentage is too small.Make it so the total is at least 30 or 35." Theygradually negotiated to the ten percent figure,which both informants repeatedly emphasizedwas the most Saeed could give.




Al-Moayad and Zayed disavowed any knowledge as toa future terrorist attack being planned in New York.They also reviewed how they should use the checksthat Saeed would provide. At the conclusion of themeeting, the informants gave the checkbook to Al-Moayad and left the defendants' room. German lawenforcement agents arrested Al-Moayad and Zayedshortly thereafter.

3. Post-arrest statements

After their arrests, Al-Moayad and Zayed were ques-tioned by law enforcement officers and gave state-ments. Agent *151 Murphy interviewed Al-Moayad in

November 2003. According to Murphy, Al-Moayaddenied ever having given money directly to Hamas,but also said that he might possibly have done so ashead of the Al-Aqsa foundation. Al-Moayad con-firmed having met with and given money to Osamabin Laden during the conflict with the Soviets inAfghanistan. However, he said that the relationshipended sometime after that conflict ended, that he hadsince spoken publicly against Bin Laden, and that BinLaden issued a fatwah, or religious ruling, calling forhis death. During the interview, Al-Moayad did notstate how much 10 money he had given to either Al-Qaeda or Hamas. With regard to the Frankfurt meet-ings, Al-Moayad asserted that his intention was totake his portion of Saeed's money for his charities andthat it would be up to Al-Anssi to get the rest of themoney to Hamas.

Speaking to German police in January 2003, Zayed de-scribed himself as Al-Moayad's escort and the personin charge of the charitable bakery. He also describedthe Al-Aqsa foundation as a charitable organizationthat "supports people in Palestine who have sufferedfrom the war." Zayed stated that he first learned aboutthe true purpose of the Frankfurt meetings during thedefendants' first face-to-face conversation with Saeed,not while he was in Yemen. When he was inter-viewed by Murphy in November 2003, Zayed told himthat while he was still in Yemen, Al-Moayad told him

only that one of Al-Anssi's contacts wanted to donatemoney to Al-Moayad's causes.

B. Prosecution Case

Al-Moayad and Zayed were indicted on charges ofconspiring to provide material support to Hamas andAl-Qaeda and attempting to provide material supportto Hamas and Al-Qaeda, in violation of 18 U.S.C. §2339B(a)(1).8 In addition, Al-Moayad was chargedwith providing material support to Hamas and Al-Qaeda. Trial commenced in the Eastern District ofNew York on January 28, 2005 and ended on March11, 2005. The government's principal evidence duringits case-in-chief consisted of tapes and translations ofthe Frankfurt meetings in January 2003.

8.

Whoever knowingly providesmaterial support or resources toa foreign terrorist organization,or attempts or conspires to do so,shall be fined under this title orimprisoned not more than 15years, or both, and, if the deathof any person results, shall beimprisoned for any term of yearsor for life. To violate thisparagraph, a person must haveknowledge that the organizationis a designated terroristorganization (as defined insubsection (g)(6)), that theorganization has engaged orengages in terrorist activity (asdefined in section 212(a)(3)(B) ofthe Immigration and NationalityAct), or that the organization hasengaged or engages in terrorism(as defined in section 140(d)(2) ofthe Foreign RelationsAuthorization Act, Fiscal Years1988 and 1989).

18 U.S.C. § 2339B(a)(1) provides:




At trial, neither defendantdisputed that during the periodsdescribed in the indictment, theUnited States Department of Statehad designated Hamas and Al-Qaeda as foreign terroristorganizations (FTOs). See, e.g.,Office of Counter-terrorism, U.S.Dep't of State, Foreign TerroristOrganizations List — 2003 (Jan.30, 2003), available athttp://www.state.gov/s/ct/rls/fs/2003/17065.htm.

1. Al-Moayad's Crawford objection to Zayed's post-

arrest statement

During the government's case-in-chief, Agent Mur-phy testified about, among other things, his post-ar-rest interview of Zayed. According to Murphy, beforethe trip to Germany, "Al-Moayad advised Zayed thatone of [Al-Anssi's], one his [sic] associates, had a sig-nificant amount of money looking to donate thatmoney to Al-Moayad's causes." *152

During his cross-examination of Murphy, Zayed'scounsel attempted to demonstrate that before arrivingin Germany, Zayed thought that the meetings wouldrevolve entirely around possible donations for Al-Moayad's charities, not merely his "causes." Defensecounsel asked, "[n]ow, in fact, what Mr. Zayed toldyou was that Al-Moayad had told him that an individ-ual wanted to provide a lot of money to Al-Moayad[sic] charity; isn't that what he told you?" Murphyresponded, "I remember there were two answers hegave, one in the beginning and then he completelycontradicted this statement you are referring to."Murphy then said that "Zayed stated Al-Moayad at theinterview that [sic] an individual wanted to providelots of money to Al-Moayad's charity," but later in theinterview, Zayed "advised that once they had reachedthe hotel room in Germany, he knew from discussionsabout [sic] Al-Moayad that Al-Moayad told him they

were there to collect money for Hamas." Al-Moayad'sattorney objected under Crawford v. Washington, 541

U.S. 36,124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).9 Thecourt asked Al-Moayad's counsel to suggest a remedy,but he never followed up. When Zayed's counsel re-sumed his cross-examination of Murphy, he clarified"that there was no contradiction whatsoever in whatMr. Zayed told you about what he knew the reason forgoing to Germany was when he was in Yemen." Mur-phy agreed that "there was no contradiction."

9.

2. Testimony of Gideon Black

The government's final witness in its case-in-chiefwas Gideon Black. Black was on a bus in Tel Aviv onSeptember 19, 2002 — the same day as the group wed-ding in Yemen — when a Hamas suicide bomber det-onated his explosives, killing Black's cousin. Black tes-tified at considerable length about the attack. Further-more, the government highlighted his testimony dur-ing its opening and closing arguments.10

10.

In Crawford, the Supreme Court held that

out-of-court testimonial statements by wit-nesses are barred unless the witness is unavail-able and the defendant has had a prior oppor-tunity for cross-examination. Crawford, 541

U.S. at 68, 124 S.Ct. 1354.

Zayed's counsel moved for a mistrial im-mediately following 10 the government'semotionally charged opening statement, refer-ring to the fact that the government attorney,"with her voice cracking, pointed to the wit-ness stand and said that a victim of a terroristattack in Tel Aviv was going to testify. It was ahighly emotional moment. It has nothingwhatsoever to do with this case. There is nosuggestion at all that the defendant in any way— the defendants had anything to do with thatterrorist attack." The court denied the motionand instructed the jury that "whatever thelawyers say, whatever the prosecutor says isnot evidence in this case."



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Early on in the trial, Zayed's counsel moved in limineto exclude Black's upcoming testimony. He argued inessence that because the defendants conceded thatthey knew Hamas and Al-Qaeda had engaged in ter-rorist activity and offered to stipulate to that fact, 11

Black's testimony about the bombing — with whichthe defendants were not charged or shown to be con-nected — would be far more prejudicial than proba-tive. The government contended that it was entitledto put on evidence proving the defendants' knowledgethat Hamas and Al-Qaeda were terrorist groups. Thecourt ruled, without further explanation, that the tes-timony was more probative *153 than prejudicial, and

that it would allow the testimony with "[n]o gorystuff."

11.

Just before Black's testimony, the court viewed pho-tographs of the destroyed bus and viewed a DVD ofa news story about the bombing, which the govern-ment also sought to introduce. The defendants object-ed to the graphic nature of the images. The court con-cluded, "[t]here are splatterings of blood in all of themand if you object to places where there is blood, andI don't think it is that gory, then the only thing you'dbe able to show is the outside, I'm going to admit it."The court also stated that it would allow all three pho-tographs of the bus to be admitted over defense coun-sel's objection that they were cumulative.

On the stand, Black described his back-ground and hisstudies in Israel in the early 2000s. He recounted theevents of September 19, 2002, on which he and hiscousin Yoni planned to travel from Jerusalem to Tel

Aviv to celebrate a Jewish holiday with Black's family.Black stated that when they arrived in Tel Aviv, theyalmost took a cab, but decided instead to take a bus.While they were aboard, the bus stopped to pick uppassengers. As the bus pulled away, a suicide bomberdetonated an explosive device at the front of the vehi-cle.

After Black stated that there was an explosion, defensecounsel objected "to any further questions." The courtallowed the government to proceed. Black testifiedthat he saw, "[a]mongst other things, glass, metal andshrapnel flying in all directions particularly towardsthe back of the bus from the center of the bus." Healso described the scene immediately after the explo-sion, testifying that "there was an eerie silence for afew moments and then sirens, screaming, panic." Heturned around and saw Yoni crouched on the floor,unconscious. Black also testified that as he absorbedwhat had happened, he cried. At this point, defensecounsel again objected to further questioning, arguingthat "[t]his terrible tragedy has now been described,we know what happened and I think that to furtherdwell on these events is only to reinforce the prejudicewhich is being attempted to be injected into the recordby this testimony." However, the court allowed thegovernment to proceed. The government asked Blackto view the photographs of the scene and describethem to the jury, during which Black again describedthe events immediately before the attack and its after-math. The government also played the DVD contain-ing the newscast about the bombing.

After Black's testimony, Al-Moayad's counsel askedthe court to instruct the jury that there was no evi-dence or allegation that either defendant was involvedin the bombing. The court refused to give the instruc-tion and proposed alternative language instead. Al-Moayad's counsel withdrew his request for a jury in-struction, and the jury received none.

C. Defense Case

To demonstrate that the defendants wereguilty of violating18 U.S.C. § 2339B(a)(1), thegovernment had to show either that the de-fendants knew that Hamas and Al-Qaeda weredesignated foreign terrorist organizations, orthat the defendants knew that those groupsengaged in terrorist acts. Neither Al-Moayadnor Zayed asserted at trial that they lacked therequisite knowledge of Hamas's and Al-Qae-da's terrorist activities.




The defendants' case-in-chief revolved mainly aroundtheir view that they had been entrapped by the gov-ernment through its informants Al-Anssi and Saeed.To make out a defense of entrapment, "a defendantmust first prove government inducement by a pre-ponderance of the evidence. The burden then shiftsto the government to show that the defendant waspredisposed to commit the crime beyond a reasonabledoubt." United States v. Gagliardi 506 F.3d 140, 149 (2d

Cir. 2007). At trial, the government never seriouslydisputed the proposition that Al-Moayad was inducedto participate in the *154 Germany meetings by Al-

Anssi.12 Therefore, the defense and the prosecutionboth focused on the issue of the defendants' predispo-sition. "A defendant is predisposed to commit a crimeif he is `ready and willing without persuasion to com-mit the crime charged and awaiting any propitious op-portunity' to do so." United States v. Salerno, 66 F.3d

544,547 (2d Cir. 1995) (quoting United States v. Harvey,

991 F.2d 981, 992 (2d Cir. 1993)). The governmentmay show that a defendant was predisposed to com-mit the crime charged by demonstrating: "(1) an ex-isting course of criminal conduct similar to the crimefor which [the defendant] is charged, (2) an alreadyformed design on the part of the accused to committhe crime for which he is charged, or (3) a willingnessto commit the crime for which he is charged as evi-denced by the accused's ready response to the induce-ment." Id. (quoting United States v. Valencia,645 F.2d

1158, 1167 (2d Cir. 1980)).

12.

The defendants began their presentation with twocharacter witnesses from Yemen, Abdeh Al Zahr andKarim Ahmed Al Faisal. Both men testified about Al-Moayad's and Zayed's numerous charitable projects,including the bakery and other endeavors, and con-firmed Al-Moayad's reputation in Yemen as the "fa-ther of the poor." They also stated that neither Al-

Moayad nor Zayed condoned violence and that bothhad spoken out against terrorist acts. The witnessesdenied any knowledge that Al-Moayad or Zayed hadever given money to or solicited money for Hamas orAl-Qaeda.

1. Al-Anssi's notes

The defendants called Al-Anssi during their case-in-chief and elicited significant impeachment testimonyfrom him, including admissions of his heavy indebted-ness, financial difficulties, and his attempts to obtainlarge sums of money from the FBI in exchange for in-formation. Al-Anssi also conceded that he had a pri-or felony conviction, having pled guilty in the East-ern District of New York to bank fraud (specifical-ly, writing bad checks). Al-Anssi further testified thathe had purchased a dry cleaning business with a por-tion of the $100,000 he received from the FBI, but thebusiness failed and he returned it to the seller in June2004. Al-Anssi admitted that, after this failure, he hadrun out of money, leading to his attempt in November2004 to get more money from the FBI by setting him-self on fire at the White House.

Impeaching Al-Anssi's credibility was important tothe defendants' entrapment defense. Defense counselexamined Al-Anssi extensively about his meetingswith Al-Moayad in Yemen, during which he had gath-ered, at the behest of the FBI, much of the govern-ment's background evidence against the defendants.Al-Moayad's attorney queried Al-Anssi aboutwhether he had made notes of his conversations withAl-Moayad, and Al-Anssi indicated that he had. De-fense counsel then asked about the list of Americancontacts that Al-Moayad gave to Al-Anssi. Al-Moayad's counsel pressed Al-Anssi to admit that hedid not know whether those contacts sent money toAl-Moayad for armed jihad or for his charities, butAl-Anssi repeatedly insisted that Al-Moayad was fun-neling money into jihad. Defense counsel asked, "[i]sthere one recording or one piece of paper that's priorto Frankfurt that says that?" In response, Al-Anssi

As discussed further below, there wassome question about whether Zayed was in-duced by Al-Anssi or by Al-Moayad. See infra

Part I.E.I.



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pointed to the four receipts that Al-Moayad gave him.Defense counsel followed up, "[i]s there any otherdocument aside from these four documents thatshows that Mr. Al-Moayad *155 donated money to

Hamas, Al-Qaeda or any other organization involvedin the Jihad organization?", and then, "I ask you beforeyou went to Frankfurt, was there anything, any doc-ument or any recording supporting what you've toldthis jury today?" After Al-Anssi answered that theFrankfurt videos supported his testimony, Al-Moayad's attorney asked once more, "[b]etween thefirst time you met with the FBI and the time you wentto Frankfurt, is there any document or any record-ing supporting the truthful testimony that you've giv-en today?"

During its examination of Al-Anssi, the governmentmoved to introduce Al-Anssi's handwritten notes intoevidence, arguing that defense counsel had openedthe door to their admission with his questioning. Thenotes memorialized, among other things, the follow-ing information that Al-Anssi purportedly gatheredwhile he was still living in Yemen, and during theFBI investigation: Al-Moayad was "the right hand" toSheikh Abdul Majid Al-Zindani13 ; at some point inthe past, Al-Moayad was "the main person choosingthe volunteers" to send to fight in the conflicts inChechnya, Afghanistan, and Bosnia; during Al-Anssi'sfirst trip to Yemen, Al-Moayad provided him withinformation about foreign arms dealers; Al-Moayadasked Al-Anssi not to call him on the phone, andto refer only to medical treatment if he did so; Al-Moayad was aware while still in Yemen that Saeed in-tended to give a substantial sum of money ($2 milli-on) specifically to support the armed mujahidin; Al-Moayad visited and supported Bin Laden inAfghanistan; he knew young volunteers who wereready for training in jihad; and he gave $3.5 million toPalestine and $20 million to Al-Qaeda "during last fewyears and before the Sept. 11th 2001."

13.

Defense counsel objected to admission of the noteson hearsay grounds. The government contended thatthe notes constituted a prior consistent statement af-ter impeachment and that the jury had been left withthe false impression that no documents supported Al-Anssi's testimony. The court admitted the notes with-out limitation — and, therefore, as substantive evi-dence — and without specifying the ground for theiradmission.

2. Siyam wedding speech

At the same time that the court admitted Al-Anssi'snotes, it also admitted Al-Anssi's video of the Septem-ber 2002 group wedding in Yemen, which includedMohammed Siyam's speech. Before trial, the court hadgranted a defense motion to suppress the video. Pri-or to cross-examining Al-Anssi, the government sig-naled its intent to re-offer the video "to corroborate[Al-Anssi's] version of events as disputed by the de-fense through his direction [sic] examination." Za-yed's counsel objected on the grounds that he did notopen the door to introduction of the video, and thatit would be more prejudicial than probative. The gov-ernment contended that the video was relevant to pre-disposition and the entrapment defense, and that itwas admissible to counteract the impression that nodocument or recording supported Al-Anssi's testimo-ny about Al-Moayad's previous support for terrorism.The court permitted the government to play the videofor the jury and to provide an English translation of itscontents. Again, the *156 court admitted this evidence

without limitation.

D. Prosecution Rebuttal Case

Government expert Matthew Levitt de-scribed Al-Zindani at trial as "a Specially Des-

ignated Terrorist" who "is believed by theUnited States and others to be involved inprocuring weapons under activities for terror-ist organizations." Other evidence at trial,specifically Zayed's post-arrest statement, sug-gested that Al-Moayad was merely acquaintedwith Al-Zindani, as Al-Zindani was also awell-known scholar.




The government's rebuttal case focused largely oncountering the defendants' entrapment defense byshowing that Al-Moayad and Zayed were predisposedto support terrorist activities.

1. Mujahidin form

Against Al-Moayad only, the court admitted withoutlimitation — over hearsay, relevance, and authenticityobjections, and without explaining the grounds for itsruling — a document that appeared to be an applica-tion form for a mujahidin training camp (the "mu-jahidin form"). It had been partially filled out in 1999by an individual who called himself "Abu Jihad," andwho listed "Sheikh Mohammed Al Moayad" next tothe question, "[w]ho recommended you, and how doyou know him." The government did not present anyevidence about who Abu Jihad was, and he was notavailable at trial. Instead, the government authenti-cated the form through the testimony of FBI SpecialAgent Jennifer Hale Keenan, who stated that she wasstationed in Islamabad, Pakistan on September 11,2001 and during the ensuing United States invasionof Afghanistan. Hale Keenan re-counted that in De-cember 2001, she received a number of items collectedby American personnel in Afghanistan, including ma-terials seized from an Al-Qaeda training facility. Themujahidin form was among these documents. HaleKeenan then described the process of receiving, in-ventorying, and shipping the documents to Washing-ton D.C.

2. Goba testimony

The government also called Yahya Goba, an Americancitizen of Yemeni heritage who attended an Al-Qaedatraining camp in Afghanistan in 2001, to testify aboutthe form. Goba had pled guilty to providing materialsupport to Al-Qaeda in September 2002 pursuant toa cooperation agreement. In response to concerns ex-pressed by defense counsel about his testimony, thegovernment proffered that he would explain the sig-nificance of the form from personal experience with-out directly implicating Al-Moayad. Al-Moayad's

counsel objected on the grounds that his testimonywould be irrelevant and highly prejudicial, and wouldconstitute inadmissible hearsay. The court allowed thetestimony to proceed, but again did not explain the ba-sis for its ruling.

Goba's testimony went far beyond the scope of thegovernment's proffer. He testified that in 1998, he metan individual who later arranged for him to attend anAl-Qaeda training camp in Afghanistan in 2001. Go-ba described flying to Pakistan and journeying acrossthe border to an Al-Qaeda guest house in Kandahar,Afghanistan. At the guest house, Goba was given aform to fill out that he testified was identical to themujahidin form. The government asked Goba aboutthe importance of indicating who had recommendedhim for the camp. He stated, among other things, thatwithout the assistance of the recommender, he wouldnot have been able to attend the camp.

Goba then went on to testify about traveling to the Al-Qaeda camp, the camp layout, and the type of train-ing (weapons, tactics, explosives, topography) that hereceived there. Al-Moayad's counsel objected period-ically to the relevance of Goba's continued testimony,but the court allowed the government to continue.Goba was permitted to testify, for example, that BinLaden had visited the camp on two occasions. He wasalso allowed to describe what occurred at the campduring Bin Laden's first visit and to summarize for thejury a speech that Bin Laden gave, in which he talkedabout the "importance of *157 unifying and perform-

ing jihad." The government also played an Al Jazeeranews video documenting Bin Laden's visit, which in-cluded images of Bin Laden standing with his body-guards and various associates, including Ayman Al-Zawahiri, 14 and asked Goba to provide commentary.As discussed further below, Al-Moayad's counsel ob-jected to the video on a variety of grounds going toits prejudicial nature, but the court allowed the videoto be shown. The court also permitted Goba, over ob-jection, to describe photographs of the Al-Qaeda guesthouses and the camp.




14.

At the beginning of the second day of Goba's testimo-ny, Al-Moayad's counsel moved for a mistrial basedon Goba's accounts of the training camp and the ref-erences to and images of Bin Laden, arguing that "thecourt very carefully instructed each juror during voirdire that this case was not about 9[/]11, not aboutOsama bin Laden . . . I think the line was crossedyesterday with this testimony." The court responded,"[y]ou made the application. The application is de-nied. I will instruct the jury that the defendant willhave to be judged guilty or not guilty based upon whatis charged in the indictment."

During the remainder of his testimony, Goba stated,among other things, that he had attended a rally in1995 co-hosted by the Al-Aqsa foundation. Goba tes-tified that he had volunteered to guard a picturegallery, which featured photos "of the Al Aqsamosque, leaders of Hamas and pictures of suicidebombers." Videos were shown at the rally, which Go-ba described as "contributes [sic] of suicide bombers."In addition, Mohammed Siyam gave a speech. Accord-ing to Goba, money was collected at the rally for Al-Aqsa.

3. Croatian documents

Through a Croatian intelligence officer, the govern-ment offered various documents seized from twoYemeni men who were detained in 1995 by Croatianauthorities as they were crossing into Croatia fromBosnia. The officer testified that the men were mu-

jahidin fighters leaving the armed conflict in Bosnia.The government introduced these documents todemonstrate a connection between Al-Moayad andAl-Qaeda continuing into the 1990s ( i.e., after the end

of the conflict with the Soviets in Afghanistan), whichwas relevant to the charge of providing material sup-port to Al-Qaeda and to the government's case on pre-disposition.

Among the documents are photographs of the twoYemeni individuals, copies of their passports, a lastwill and testament belonging to one of the men, andboth men's address books. The intelligence officer af-firmed that both address books included Al-Moayad'sname and phone number. Al-Moayad's counsel ob-jected to the documents on hearsay, relevance, and au-thenticity grounds. The government argued that theevidence was relevant to entrapment and was admis-sible either as non-hearsay or as co-conspirator state-ments. The court admitted the documents against Al-Moayad as substantive evidence, without limitationand without specifying the basis for their admission.

E. Summations, Jury Charge, Verdict, and Sentencing 1. De-

rivative entrapment charge

At trial, the government argued that Zayed was in-duced to commit the *158 crimes charged not by a gov-

ernment agent, but by Al-Moayad, and he was there-fore entitled only to a "derivative" entrapment (as op-posed to a direct entrapment) defense.15 Zayed's coun-sel contended that Zayed could assert a direct entrap-ment defense as no evidence suggested that he was in-duced by Al-Moayad, rather than directly entrappedby Al-Anssi. Zayed's counsel objected to the court'sproposed entrapment charge, which incorporated thegovernment's requested instruction and read as fol-lows (with the portion to which he objected in italics):

15.

At trial, the government's expert MatthewLevitt described Ayman Al-Zawahiri as BinLaden's "deputy." Al-Zawahiri was indictedfor his alleged role in the 1998 bombings ofthe U.S. embassies in Tanzania and Kenya,and appears on the FBI's list of "Most WantedTerrorists." Federal Bureau of Investigation,Most Wanted Terrorists, available at

http://www.fbi.gov/wanted/terrorists/ter-alzawahiri.htm.

See, e.g., United States v. Pilarinos, 864 F.2d

253, 256 (2d Cir. 1988) (internal citations andquotation marks omitted):A defendant is entitled to a derivative entrap-



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The government inducement must be direct,unless the government used an unwitting

middleman to induce another person. For example,

if the government induces defendant A to commit

a crime, and defendant A takes it upon himself

to induce defendant B to participate in the crime,

then there can be no entrapment with respect to

defendant B.

The court denied defense counsel's application to re-move the challenged language.

Defense counsel submitted letter briefing in which heargued again that the instruction did not apply, and al-so that the proposed language did not correctly statethe law. The court deferred revisiting its ruling un-til after closing arguments. Zayed's attorney discussedderivative entrapment in his summation, as did thegovernment. After summations, the court denied Za-yed's attorney's motion for reconsideration of the de-rivative entrapment instruction. The court then beganto charge the jury.

During the charge, the government requested a side-bar and asked the court not to include the derivativeentrapment language, "to avoid any possibility of anappellate issue." Zayed's counsel then asked the courtto instruct the jury to disregard the attorneys' closingarguments as to derivative entrapment. The courtgave the rest of the charge, instructing only on normalentrapment, but did not instruct the jury with regardto the attorneys' closing arguments. Zayed's counselindicated that he had "[n]o objections or exceptions"to the charge. However, after jury deliberations had

begun, another of Zayed's attorneys asked to revisitthe derivative entrapment issue. He requested "a cu-rative charge that [Zayed's counsel] was required toclose under an incorrect charge," that "closing argu-ments be reopened for the purposes of [Zayed's coun-sel] to correctly address the standard of law," andmoved for a mistrial. The court denied the applica-tions.

2. Verdict and sentencing

The jury found Al-Moayad guilty of conspiring toprovide and attempting to provide material support toAl-Qaeda and Hamas, and of providing material sup-port to Hamas. Al-Moayad was acquitted of providingmaterial support to Al-Qaeda. The jury convicted Za-yed of conspiring to provide material support to Al-Qaeda and Hamas and attempting to provide materialsupport to Hamas, but acquitted him of attempting toprovide material support to Al-Qaeda. *159

The district court sentenced Al-Moayad to the statu-tory maximum of 180 months' imprisonment on eachcount to run consecutively, for a total of 900 monthsor seventy-five years, and imposed a fine of$1,250,000.00. Zayed also received the statutory max-imum sentence of 180 months on each count to runconsecutively, for a total of 540 months' or forty-fiveyears' imprisonment, as well as a fine of $750,000.This appeal followed.

II. DISCUSSION

The defendants raise a number of issues on appeal.They contend that: (1) the district court erred in ad-mitting Al-Anssi's notes as substantive evidence; (2)the court erred in admitting the mujahidin form, thevideo of Mohammed Siyam's wedding speech, and theCroatian documents; (3) the court abused its discre-tion in admitting the testimony of Gideon Black andYahya Goba; (4) the court erred with respect to thederivative entrapment instruction issue; and (5) Al-Moayad's Confrontation Clause rights were violated

ment defense . . . when the government's in-ducement was directly communicated to theperson seeking [the] entrapment charge by anunwitting middleman. . . . Nevertheless,where a government agent induces a middle-man to commit a crime, and the middleman,responding to the pressure upon him, takes itupon himself to induce another person to par-ticipate in the crime, the latter person is notentitled to a derivative entrapment charge.




by admission of an incriminating portion of Zayed'spost-arrest statement. For the reasons that follow, wefind that the district court committed prejudicial errorwith respect to the Black and Goba testimony and Al-Anssi's notes. Further, the cumulative effect of the dis-trict court's errors deprived the defendants of a fairtrial.16

A Testimony of Gideon Black and Yahya Goba

16.

The defendants contend that the testimony of GideonBlack about the Tel Aviv bus bombing and of YahyaGoba about the Al-Qaeda training camp was irrele-vant, prejudicial, and highly inflammatory. They alsocontend that the district court permitted the govern-ment to elicit testimony from both witnesses thatstrayed far beyond the government's proffered pur-pose in offering the evidence — as to Black, establish-ing the defendants' knowledge that Hamas engaged interrorist acts, and as to Goba, authenticating the mu-jahidin form. We agree that the district court shouldhave excluded the challenged testimony under Rule

403, and that its failure to do so deprived the defen-dants of a fair trial.

1. Gideon Black testimony

Federal Rule of Evidence 403 provides that "[althoughrelevant, evidence may be excluded if its probativevalue is substantially outweighed by the danger of un-fair prejudice, confusion of the issues, or misleadingthe jury, or by considerations of undue delay, wasteof time, or needless presentation of cumulative evi-dence." When we are confronted with a Rule 403 is-sue, "so long as the district court has conscientiouslybalanced the proffered evidence's probative value withthe risk for prejudice, its conclusion will be *160 dis-

turbed only if it is arbitrary or irrational." United States

v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006). "To

avoid acting arbitrarily, the district court must makea `conscientious assessment' of whether unfair preju-dice substantially outweighs probative value." United

States v. Salameh, 152 F.3d 88, 110 (2d Cir. 1998) (per

curiam) (quoting United States v. Birney, 686 F.2d 102,

106 (2d Cir. 1982)).

With regard to Black's testimony, the record reflectsthat the district court did consider the balance be-tween its probative value and probable prejudicial ef-fect before allowing Black to take the stand.17 How-ever, we must conclude that, given the highly chargedand emotional nature of the testimony and its minimalevidentiary value, the court's decision was arbitrary.The court also refused to give a limiting instructionproposed by the defense, which could have cabinedthe prejudicial effect of Black's testimony.

17.

With respect to the Hamas issuein the Frankfurt videos, thedefendants and the informantsspoke about a Hamas suicideattack, this occurred in Palestine.Testimony about this event isvery probative and I weighed this

The defendants also contend that the dis-trict court committed certain in errors duringjury selection under Batson v. Kentucky,476

U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).Because the judgments of conviction must bevacated, we need not reach this argument. Wealso note briefly that we find no merit in Al-Moayad's claim that his Confrontation Clauserights were violated by admission of an in-criminating portion of Zayed's post-arreststatement. Even if the court erred in admittingMurphy's testimony about Zayed's statement,the error was harmless. After counsel for Al-Moayad voiced his Crawford objection, Zayed's

counsel elicited testimony from Murphy that"there was no contradiction" in what Zayedsaid he knew, while still in Yemen, about thereason for the trip to Germany. Zayed's coun-sel highlighted this corrective testimony in hisclosing argument. We are confident that thisclarification remedied any incriminating effectthat Murphy's testimony might have had as toAl-Moayad.

The district court stated:



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against the prejudicial effect andI conclude that it did notsubstantially outweigh theprobative value and I'm going toallow that in with the provisothat I will not have the witnesstestify and, I don't know whereI heard this from, that he hadfriends in his arms and he wasbleeding profusely and he wasbleeding to death . . . and whowhat he observed and what heheard.

The defendants were not charged with planning orcarrying out the Tel Aviv bus bombing. Indeed, thegovernment did not introduce any evidence connect-ing Al-Moayad or Zayed to that or any other terroristact, other than the fact that Siyam mentioned the TelAviv incident during his speech at the group wedding.Nevertheless, Black was permitted to testify at lengthabout the suicide bombing. Black spoke about hiscousin Yoni, their shared experience studying inJerusalem, their plans to visit family on the day ofthe bombing, the catastrophic explosion and subse-quent chaotic scene aboard the bus, and Yoni's death.Black also repeated certain parts of his narrative mul-tiple times, such as when he viewed photos of the de-stroyed bus and described them for the jury, and whenhe commented on a video of a news story about thebombing.

The government argued that the testimony was nec-essary to establish the defendants' knowledge thatHamas engaged in terrorist activity, and was relevantto the issue of predisposition. However, neither Al-Moayad nor Zayed ever denied knowing aboutHamas's involvement in violent acts and they bothoffered to stipulate as to that knowledge, essentiallyeliminating the government's burden of proof on thatelement. In light of these concessions, as well as theconsiderable testimony during other parts of the trialabout notorious terrorist attacks carried out by

Hamas, any probative value to be gained from Black'stestimony was significantly diminished.

The Supreme Court has stated, in a case upon whichthe government heavily relied at trial, that "whatcounts as the Rule 403 `probative value' of an itemof evidence . . . may be calculated by comparing ev-identiary alternatives." Old Chief v. United States, 519

U.S. 172, 184,117 S.Ct. 644, 136 L.Ed.2d 574 (1997);see also United States v. Pepin,514 F.3d 193, 206-07 (2d

Cir. 2008) (stating that Rule 403 "permits a judge toconsider both the defendant's willingness to stipulateand the potential for prejudice [in later phases] in con-ducting the requisite [Rule 403] balancing."). The de-fendants offered an adequate evidentiary alternative attrial — to stipulate to their *161 knowledge of Hamas's

terrorist activities. Therefore, the already question-able probative value of Black's testimony was dilutedeven further in comparison with its considerable prej-udicial effect.

The government cited Old Chief at trial for the well-

established proposition that "the prosecution is enti-tled to prove its case by evidence of its own choice."Old Chief, 519 U.S. at 186, 117 S.Ct. 644. However,

in explaining this general rule, Old Chief emphasizes

the importance of allowing the prosecution to main-tain "the natural sequence of narrative evidence" inpresenting its case, to ameliorate the concern that"[p]eople who hear a story interrupted by gaps of ab-straction may be puzzled at the missing chapters." Id.

at 189, 117 S.Ct. 644. The Court's concern in Old Chief

has little to no application in this instance.

The September 2002 bus bombing was almost entirelyunrelated to the elements of the charges — and, there-fore, the government's "narrative evidence" — againstAl-Moayad and Zayed, especially considering that thedefendants never denied their knowledge of Hamas'sterrorist activities. In fact, Black's testimony, duringwhich he never referred to either defendant or to anyaspect of the investigation or charges against them,constituted a significant break from the substance of



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the rest of the government's case-in-chief. Black's ex-tended account of the tragedy could not reasonably beconsidered part of "the res gestae, the narrative" ofthe government's case against the defendants. Pepin,

514 F.3d at 208. Therefore, omitting Black's testimonywould not have disrupted the narrative flow of thegovernment's trial evidence.18 Furthermore, an eye-witness account of a violent, destructive, and fatal sui-cide bombing seems quite clearly to "involve conductmore inflammatory than the charged crime[s]." United

States v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006)

(quoting United States v. Livoti, 196 F.3d 322, 326 (2d

Cir. 1999)). Indeed, the government's extended pre-sentation of Black's testimony, supplemented by pho-tos and video, amounted to a blatant appeal to the ju-ry's emotions and prejudices.19 *162

18.

19.

Even if the district court properly admitted Black's tes-timony for the proffered purpose — to show that abombing actually occurred, just as Siyam said it had— the court erred in allowing the testimony to con-tinue after that fact was established. After Black statedthat a "huge explosion" occurred at the front of thebus, defense counsel repeatedly objected to any furthertestimony. The subsequent details about and imagesof the wreckage and the death of Black's cousin wereeven less probative as to the issues at trial, and muchmore prejudicial. Nor can we find, as we typically havedone in rejecting Rule 403 challenges to the admissionof evidence, that a limiting instruction mitigated the

Black's highly emotionally charged ac-count of the bombing was also not "legally andmorally relevant to the conduct constitutingthe offenses" with which the defendants werecharged. United States v. Velazquez, 246 F.3d

204, 211 (2d Cir. 2001) (opining that autopsyphotos could be admitted over a Rule 403 ob-jection because they "established that cruel andunusual punishment had occurred" and"helped to resolve a disputed point at the tri-al.")

Judge Wesley notes that Old Chief statesthat "the prosecution may fairly seek to placeits evidence before the jurors, as much to tell astory of guiltiness as to support an inference ofguilt, to convince the jurors that a guilty ver-dict would be morally reasonable as much as topoint to the discrete elements of a defendant'slegal fault."519 U.S. at 188, 117 S.Ct. 644.Hence, the prosecution may admit evidencenot just to fill gaps in the specific narrative ofhow the defendant committed the crime, butalso to illustrate the greater context in whichthe defendant committed the crime.Judge Wesley believes that the Black testimo-ny and accompanying video clip of the bus

bombing may have served to illustrate howthe defendants' activities, including the seem-ingly benign mass wedding and charity fund-raising, were linked to terror and bloodshedcaused by a multinational terrorist organiza-tion. However, the Black testimony remainsinadmissible for two reasons. First, the inad-missibility of the wedding video severs theconnection between defendants and the busbombing and consequently renders Black'stestimony irrelevant. Second, the Black testi-mony would be inadmissible to show the linkbetween defendants' fund-raising for Hamasand Al Qaeda and these organizations' respec-tive acts of terrorism because (1) with respectto Al Qaeda, there is no evidence that the busbombing was committed by Al Qaeda; and (2)with respect to Hamas, the bus bombing wascommitted prior to defendants' fund-raising.Judge Wesley further notes that this conclu-sion should not preclude future admissibilityof evidence to demonstrate the larger conse-quences of a defendant's actions in spite of of-fers by the defendant to stipulate as to thoseconsequences. Cf. United States v. Salameh, 152

F.3d 88, 122 (2d Cir. 1998) (admitting pho-tographs and testimony regarding the deathand injury caused by the World Trade Centerbombing as probative of the nature and loca-tion of the explosion where defendants werewilling to stipulate that the bombing causeddeath and injury).



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prejudicial effect of the testimony. See, e.g., United States

v. Elfgeeh,515 F.3d 100, 127 (2d Cir. 2008); Paulino,

445 F.3d at 223; United States v. Downing, 297 F.3d 52,

59 (2d Cir. 2002); Livoti, 196 F.3d at 326. The dis-

trict court rejected the instruction proposed by Al-Moayad's counsel, which would have informed the ju-ry that "there is no evidence nor allegation that eitherdefendant had anything to do with the bus bombing[of] which Mr. Black and his cousin were victims." In-stead, the district court proposed the following vague,tendentious instruction: "You have heard the testimo-ny of a bus bombing, you will determine based on theevidence or lack of evidence who was responsible forthat incident. You will also determine what that in-cident has to do or not to do with the allegations inthe indictment." Because neither the bombing nor anyother terrorist attack was part of the charges againstthe defendants, it would have been inappropriate forthe jury to determine "based on the evidence or lackof evidence" who was responsible for the attack, andit was reasonable at that point for Al-Moayad's coun-sel to withdraw his request for a limiting instruction.Therefore, the district court ultimately provided noguidance to the jury that might have mitigated theself-evident prejudicial effect of Black's testimony.

2. Yahya Goba testimony

The district court also erred in allowing Yahya Gobato testify about his experiences at the Al-Qaeda train-ing camp in Afghanistan. With regard to Goba, thedistrict court seems simply to have failed to make therequired "conscientious assessment" of the testimony'sprejudicial effect in comparison with its probative val-ue, without which we have no adequate basis for de-ferring to the district court's judgment. This omissionstemmed, at least in part, from the government's mis-leading proffer as to what Goba would say. In addi-tion, the court repeatedly and over objection allowedGoba to continue testifying far beyond the proffer,without providing any indication of how (or whether)it had performed the Rule 403 assessment.

In theory, the government offered Goba's testimonyto provide additional authentication of the mujahidinform, although the form had already been authenti-cated and admitted into evidence during Agent HaleKeenan's testimony. Before Goba took the stand, Al-Moayad's counsel raised a concern that "they intendto ask this gentleman what the business practices ofthis Al-Qaeda training camp was, what *163 it means

if your name is in a certain slot on one of these forms. . . it seems to me this is beyond the scope of hisability to be able to testify. . . ." Counsel for the gov-ernment then assured the court that "we're not goingto ask him about the business practices of the Al-Qae-da training camp. . . . What he will specifically say isthat in order to get into that camp, he knew he had toput down the name of somebody known to the campleaders." Goba did testify about filling out a form iden-tical to the mujahidin form, and about listing as hisreference the individual who sent him to the camp.

However, as described above, Goba's testimony con-tinued well beyond the government's proffer. Al-Moayad's counsel interposed numerous objectionsthroughout. While several of these were sustained,the court never appears to have assessed the probativevalue of the continuing narrative, or required the gov-ernment to constrain the testimony to the scope ofits proffer. For example, early in the examination butwell after Goba discussed the application form, de-fense counsel stated, "we're learning about this gentle-man's experience in the camp that is unrelated to any-thing involving the defendant in this case." The courtreceived that objection without comment, and the tes-timony continued. As to the Al Jazeera video of BinLaden's visit, defense counsel objected, "[t]his is fur-ther evidence offered in support of testimony whichwas irrelevant to start with and much of which was al-ready excluded." The court responded that "[i]t's on-ly three minutes. I am going to allow it." The courtalso summarily and without comment denied defensecounsel's Rule 403 objection.



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Goba's testimony about the camp, and particularly thegovernment's presentation of images of Bin Ladenand Al-Zawahiri, was highly inflammatory and irrele-vant, and should not have been permitted by the dis-trict court. The government presented no evidencelinking Goba to Al-Moayad, and yet his extensive tes-timony was admitted against Al-Moayad as part of thegovernment's rebuttal case. Even if Goba's testimonyhad some value in authenticating the mujahidin form,we have no assurance that the court conscientiouslybalanced the probative value of the testimony againstits prejudicial effect, given the court's failure to ex-plain. Nor do we think that, had the court performedthat weighing analysis, it could have rationally con-cluded that the account of the events occurring at thetraining camp, including testimony about visits by BinLaden and his associates, was admissible. Finally, aswith Black's testimony, the prejudicial effect of Goba'sstatements was not mitigated by any limiting instruc-tion to the jury.

3. Harmless error

In sum, we conclude that the probative value of theBlack and Goba testimony was far outweighed by itsunfair prejudice, which the Supreme Court has de-scribed as "an undue tendency to suggest decision onan improper basis, commonly, though not necessarily,an emotional one." Old Chief, 519 U.S. at 180, 117

S.Ct. 644 (quoting Fed.R.Evid. 403 advisory commit-tee's note). Further, the district court's error in admit-ting the testimony was not harmless as to the issueof the defendants' predisposition and, therefore, theirentrapment defense.20

See Arlio v. Lively, 474 F.3d 46,

51 (2d Cir. 2007) (holding that even when an eviden-tiary ruling constitutes *164 an abuse of discretion, "a

new trial should be granted only if a substantial rightof a party is affected — as when a jury's judgmentwould be swayed in a material fashion by the error.").Consequently, we must vacate the defendants' convic-tions on the conspiracy and attempt counts.

20.

A district court's erroneous admission of evidence isharmless "if the appellate court can conclude with fairassurance that the evidence did not substantially influ-ence the jury." United States v. Garcia, 291 F.3d 127,143

(2d Cir. 2002) (quoting United States v. Rea, 958 F.2d

1206, 1220 (2d Cir. 1992)). In conducting a harmlesserror review of inadmissible evidence, we consider thefollowing factors: "(1) the overall strength of the pros-ecution's case; (2) the prosecutor's conduct with re-spect to the improperly admitted evidence; (3) the im-portance of the wrongly admitted [evidence]; and (4)whether such evidence was cumulative of other prop-erly admitted evidence." United States v. Kaplan, 490

F.3d 110, 123 (2d Cir. 2007) (quoting Zappulla v. New

York, 391 F.3d 462, 468 (2d Cir. 2004)); see also Unit-

ed States v. Garcia, 413 F.3d 201, 217 (2d Cir. 2005). All

four harmless error factors tilt strongly in the defen-dants' favor.

First, the government's evidence on predispositionwas not overwhelming, and significant parts of it wereinadmissible. See United States v. Jean-Baptiste, 166 F.3d

102, 110 (2d Cir. 1999) (stating that a district court'simproper admission of evidence constituted harmfulerror where "the government's properly admitted ev-idence, though sufficient, was not overwhelming.").Much of the evidence that the government presentedduring its rebuttal case, which was expressly intendedto counter the entrapment defense by demonstratingpredisposition, was improperly admitted (including,of course, the Goba testimony, which was the center-piece of the government's rebuttal case). For exam-ple, we conclude below that the district court shouldnot have admitted the mujahidin form, and the court'serror in admitting the Croatian will, while harmlesswhen considered in isolation, nevertheless contribut-ed to the cumulative unfairness of the trial. We also

The government stated explicitly at trial thatBlack's testimony was relevant to the predis-position of both defendants, and Goba's tes-timony related to the mujahidin form, whichwas relevant to Al-Moayad's predisposition.






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determine below that the district court erroneouslyadmitted — during the government's examination ofAl-Anssi, when it was attempting to rehabilitate hiscrucial testimony as to the defendants' predisposition— the Siyam wedding speech and Al-Anssi's notes.The notes in particular were highly probative as to Al-Moayad's and, by extension, Zayed's predisposition tosupport terrorism.21

21.

As further evidence of predisposition, the govern-ment cited the portion of the Frankfurt tapes showingthe defendants laughing after the informants broughtup Siyam's reference to the suicide bombing, arguingto the jury during its rebuttal summation that "[t]heylaugh because they support that type of activity. . .. You think for a moment prior to Frankfurt theyweren't inclined to support terrorist activities? Watchthat video. Talk about a ready response, they're allover it." In our view, the fact that the defendantslaughed with the informants constituted only equiv-ocal evidence of predisposition, especially given Al-Anssi's admission at trial that he might *165 have

laughed first to encourage the defendants to believethat he was happy about the suicide bombing. Thegovernment also points to Al-Moayad's list of moneysources in the United States as evidence of predisposi-tion. However, no evidence at trial demonstrated thatany money sent to Al-Moayad through these sourceswas funneled into supporting terrorism. Further, al-though Al-Moayad stated during the Frankfurt meet-ings that he and Saeed were working in the same

"field," on balance Al-Moayad's repeated statementsregarding his desire to use Saeed's money for char-itable purposes, as well as the defendants' privatelyexpressed reservations about Saeed, do not convinc-ingly demonstrate their predisposition to commit thecrimes charged.

The defendants' admitted ties to Hamas figures, theappearance in Al-Moayad's address book of namesconnected with Hamas, and the four charity receiptsthat Al-Moayad gave to Al-Anssi (which we discussfurther below) are, to be sure, some evidence of pre-disposition. However, this showing is not over-whelming, especially in comparison with the likelyimpact of Black's and Goba's extensive testimony sug-gesting that the defendants were linked with a deadlyHamas bombing and with Bin Laden and Al-Qaedatraining camps. Overall, we conclude that the prose-cution's predisposition case was not strong enough toassure us that the jury was not substantially influencedby the court's improper admission of the Black andGoba testimony.

The remaining three harmless error factors also tiltin the defendants' favor. As to the second factor, wefind that the government's conduct with respect to theBlack and Goba testimony likely increased the preju-dicial effect of that evidence. During both examina-tions, the government continuously attempted (with agreat deal of success) to elicit testimony well beyondthe scope of its proffer for each witness. The govern-ment also referred repeatedly to Black and Goba inits arguments to the jury. For example, in her open-ing, counsel for the government was apparently open-ly emotional as she described how Black "knelt besidehis best friend and watched the life begin to pour outof him from a head wound . . . When you see themclapping and cheering and reminiscing about the an-nouncement of that attack at their group wedding,think of Gideon Black and the testimony you'll behearing from him."

At trial, the government did not clearlydistinguish between Al-Moayad and Zayed interms of the evidence that would demonstratetheir predispositions. For example, the gov-ernment simultaneously addressed the predis-positions of both defendants during its rebut-tal summation. This approach makes sensegiven that Zayed was implicated in this caseprimarily due to his role as Al-Moayad's assis-tant. Therefore, Al-Moayad's arguments re-garding predisposition evidence apply to Za-yed as well.




With regard to the third factor, the government treat-ed the Black and Goba testimony as important evi-dence, although it was only tangentially related to thecharges against the defendants. Both witnesses testi-fied at considerable length. In addition, the govern-ment prominently positioned their testimony: Blackwas the last witness in the government's case-in-chief,and Goba was the second-to-last witness on rebuttal.We have further indication that the testimony playedan important role in the trial because, after the jurybegan deliberations, one of its first requests was forGoba's testimony and "testimony of all Al-Qaedatraining camps." Finally, Black's account of the busbombing and Goba's description of the Al-Qaedatraining camp constituted unique evidence not dupli-cated elsewhere in the government's trial presenta-tion.

We have stated that "[o]nly rarely-and in extraor-dinarily compelling circumstances — will we, fromthe vista of a cold appellate record, reverse a districtcourt's on-the-spot judgment concerning the relativeweighing of probative value and unfair effect."Awadallah, 436 F.3d at 134 (quoting United States v.

Conley, 186 F.3d 7, 16 (1st Cir. 1999)). This case pre-

sents such circumstances. As we observed in Elfgeeh,

*166 "[t]here can be little doubt that in the wake of

the events of September 11, 2001, evidence linking adefendant to terrorism in a trial in which he is notcharged with terrorism is likely to cause undue preju-dice." Elfgeeh, 515 F.3d at 127. In this case, the defen-

dants were charged with conspiring to, attempting to,and providing material support to Hamas and Al-Qae-da, but not with violent terrorist acts like the dead-ly bus bombing about which Black testified. Giventhe inflammatory, highly charged, and extensive na-ture of Black's and Goba's testimony, we believe therewas a significant danger that it caused undue preju-dice, and "lure[d] the fact finder into declaring guilton a ground different from proof specific to the of-fense charged." Awadallah, 436 F.3d at 133 (quoting

Old Chief,519 U.S. at 180, 117 S.Ct. 644).

As was the case in United States v. Harvey, 991 F.2d

981 (2d Cir. 1993), "[t]hough the evidence of predis-position was not insubstantial, the jury faced a fair is-sue as to whether predisposition was proven beyonda reasonable doubt, and we are unwilling to concludethat the jury would have convicted in the absence ofthe prejudicial evidence gratuitously presented by theprosecutor." Id. at 996-97. The district court's error

in admitting the testimony was not harmless, and wemust therefore vacate the defendants' convictions onthe conspiracy and attempt charges.22

B. Al-Anssi's notes

22.

Al-Anssi's handwritten notes purportedly memorial-ize the content of his initial meeting with Agent Mur-phy in Washington and his conversations with Al-Moayad in Yemen. See supra Part I.C.I. The govern-

ment argued, over the defendants' objections, that thenotes were admissible as prior consistent statementsand to rebut a misleading impression created duringAl-Anssi's testimony that no document supported hisclaims about the defendants' predisposition. The dis-trict court admitted the notes without limitation assubstantive evidence.23 Because the court did not ex-plain the basis for its ruling, we *167 cannot be sure

whether it admitted the notes as prior consistentstatements or to rebut a false impression. In eithercase, the court clearly erred. See, e.g., United States v.

Padilla, 203 F.3d 156, 161 (2d Cir. 2000) ("We review

a district court's admission of alleged hearsay evidenceonly for `clear error.'"). Further, this error was notharmless.

23.

Even if the improper admission of Black'sand Goba's testimony does not in itself requirereversal of die conspiracy and attempt convic-tions, this error, in combination with others,cast sufficient doubt on the fairness of the trialas to warrant new proceedings. See infra Sec-

tion II.E.

There is no real dispute that the districtcourt admitted Al-Anssi's notes as substantiveevidence. The government concedes as much




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1. Inadmissibility as prior consistent statements

At trial, the government did not argue that the noteswere not hearsay, but invoked Federal Rule of Ev-idence 801(d)(1)(B), which provides that an out-of-court statement may be admitted for its substance if"[t]he declarant testifies at the trial or hearing andis subject to cross-examination concerning the state-ment, and the statement is . . . consistent with thedeclarant's testimony and is offered to rebut an ex-press or implied charge against the declarant of recentfabrication or improper influence or motive." Rule

801(d)(1)(B) also includes a fundamental temporal re-quirement: "The statement must have been made be-fore the declarant developed [an] alleged motive tofabricate." United States v. Forrester, 60 F.3d 52, 64 (2d

Cir. 1995) (citing Tome v. United States, 513 U.S. 150,

156, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995)); see also

United States v. Wilkerson, 361 F.3d 717, 725 n. 3 (2d

Cir. 2004). A prior consistent statement made afteran improper motive exists is simply "not within thescope" of Rule 801(d)(1)(B). Forrester, 60 F.3d at 64.

If the district court admitted Al-Anssi's notes for theirsubstance as prior consistent statements, it erred indoing so, as the notes do not satisfy the temporal re-quirement of the Rule. Al-Anssi created the notes af-ter a significant motive to fabricate arose, namely thelarge amount of money he expected and was paid tofurnish information to the FBI. The government doesnot challenge the proposition that Al-Anssi had a mo-tive to fabricate the notes when he created them.However, the government asserts that the notes werenonetheless admissible to rehabilitate Al-Moayad'scredibility.

Our case law makes clear that prior consistent state-ments that do not meet the requirements of Rule801(d)(1)(B) can indeed be admitted for rehabilitationif appropriately limited, but are inadmissible as sub-stantive evidence.24 See Phoenix Assocs. *168 III v. Stone,

60 F.3d 95, 103 (2d Cir. 1995) (distinguishing the useof prior consistent statements to rehabilitate the cred-ibility of a witness from admission of the statementsfor their substance); see also 5 Jack B. Weinstein Mar-

garet A. Berger, Weinstein's Federal Evidence §

801.22[l][a], 801.22[2] (Joseph M. McLaughlin, ed.,2d ed. 2008) (outlining the requirements for admis-sion of a prior statement as substantive evidence un-der Rule 801(d)(1)(B), and noting that "[s]ome courtshold that the requirements of Rule 801(d)(1)(B) donot apply if a prior consistent statement is admittedfor the limited purpose of rehabilitation."). For exam-ple, in United States v. Castillo, 14 F.3d 802 (2d Cir.

1994), we held that the admission of hearsay as a prior

in its brief on appeal. It is also clear from thegovernment's arguments at trial that it reliedon the notes not simply for rehabilitation andcorroboration, but also for their substance.For example, the government stated during itsrebuttal summation, with regard to Al-Anssi,"what he said about — what he said about thedefendant Al-Moayad —, unfortunately, I can'tfind it. But it's in 3500 MA-1 [the notes]. .. . But what he said about the defendant Al-Moayad was — November 2001 he wrote itdown and gave it to the FBI — Mohammed Al-Moayad, a VIP person, and he is the right handto Al-Zindani." Of Al-Anssi's trips to Yemen,counsel for die government said, "Agent Mur-phy sent him to Yemen the first time. He tooknotes. They are in evidence of what he learnedon that trip. 3500 MA-2 [the notes]." In re-sponse to the question of whether Zayed waspresent during the meetings between Al-Moayad and Al-Anssi, the government assert-ed, "[w]ell, in case you're concerned that mycolleague was lying to you, please look at 3500MA-5, Al-Anssi's notes three months beforeFrankfurt in which he says about that meeting,he told me the following, his assistant Mo-hammed Zayed was with us. It's in evidence. .. . What he writes in those notes is all corrob-orated in the Frankfurt tapes." With regardto Al-Moayad's alleged support of Hamas, diegovernment noted, "[Al-Anssi] took notes inYemen describing that the defendant Moayadsaid these receipts were Hamas and had givenmoney to Hamas."



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consistent statement was permissible where it "wasadmitted for the limited purpose of clarifying the appar-

ent contradiction brought out during cross-examina-tion." Id. at 806 (emphasis added). In that case, we al-

so noted that both the court and the government in-formed the jury that the statement was not being in-troduced and should not be considered for its truth. Id.

24.

In this case, it is undisputed that Al-Anssi's notes wereadmitted without limitation as substantive evidence.Under our precedents, the district court erred in doingso, given Al-Anssi's preexisting motive to fabricate.

2. Inadmissibility to rebut a false impression

The government also argues that the notes were ad-missible to correct a false impression created duringthe defendants' examinations of Al-Anssi, namely thatno document supported Al-Anssi's testimony abouthis meetings with Al-Moayad in Yemen and aboutAl-Moayad's predisposition to support terrorism. Ifthe court intended to admit the notes on this ground(which is not at all obvious), our precedents are clearthat it was required to admit them for a limited pur-pose only.

In arguing that the notes were properly admitted, thegovernment relies on cases stating that "[r]edirect ex-amination may be used to rebut false impressions thatarise from cross examination, and the scope of suchan examination is a matter confided to the districtcourt's discretion." United States v. Wiley, 846 F.2d 150,

156 (2d Cir. 1988) (internal citations omitted); see also

United States v. Vasquez, 267 F.3d 79, 85 (2d Cir. 2001);

United States v. Naiman, 211 F.3d 40, 51 (2d Cir. 2000);

United States v. Bilzerian, 926 F.2d 1285, 1296 (2d Cir.

1991); cf. United States v. Martinez, 775 F.2d 31, 37 (2d

Cir. 1985). These cases involve challenges to a redi-

We also believe that the notes would havebeen inadmissible even for the limited purposeof rehabilitating Al-Anssi's credibility. In Unit-

ed States v. Pierre, 781 F.2d 329 (2d Cir. 1986),

we stated that "the issue ought to be whetherthe particular consistent statement sought tobe used has some rebutting force beyond themere fact that the witness has repeated on aprior occasion a statement consistent with histrial testimony." Id. at 331. In that case, we

stated that the use of a prior consistent state-ment would be appropriate where a witnesshas been impeached with a prior inconsistentstatement, and the consistent statement either"tends to cast doubt on whether the prior in-consistent statement was made or on whetherthe impeaching statement is really inconsis-tent with the trial testimony," or "when theconsistent statement will amplify or clarify theallegedly inconsistent statement." Id. at 333.

Subsequent cases applying Pierre have gener-ally involved the introduction of a prior con-sistent statement after a witness's impeach-ment by prior inconsistent statement. See, e.g.,

United States v. Khan, 821 F.2d 90, 94 (2d Cir.

1987) (allowing use of a prior consistent state-ment when "[d]efense counsel specifically at-tacked [a witness's] credibility on cross-exam-ination and clearly implied that his failure tomention Khan at various times was inconsis-tent with his testimony on direct examina-tion."); United States v. Brennan, 798 F.2d 581,

588 (2d Cir. 1986) (acknowledging that Pierre

does not apply where there has only been ageneralized attack on a witness's credibility,but concluding that the prior consistent state-ment was admissible because "Brennan at-tempted to impeach [a witness] with allegedly

inconsistent statements made before the grandjury.").None of the circumstances that we describedin Pierre were present here. The defendants

did not impeach Al-Anssi with prior inconsis-tent statements, nor did the notes have "somerebutting force beyond the mere fact that [Al-Anssi] ha[d] repeated on a prior occasion astatement consistent with his trial testimony."We do not have to finally resolve whether thenotes were properly admitted for the limit-ed purpose of rehabilitation, however, becauseit is undisputed that the notes were admittedwithout limitation as substantive evidence.



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rect examination when a court has admitted evidencethat exceeds the scope of the preceding cross-exami-nation, because the evidence was relevant to correcta false impression created during that cross-examina-tion.

These cases also demonstrate, however, that other-wise inadmissible evidence may be used to rebut afalse impression only if the evidence is carefully limit-ed. For example, in Martinez, we held that guilty pleas

introduced during a redirect examination *169 were

admissible to rebut a false impression because theywere not admitted for their truth but rather to shedlight on whether a witness's testimony was credible.Martinez, 775 F.2d at 37. Therefore, Al-Anssi's notes

could potentially have been admissible to correct afalse impression only if the notes were admitted notfor their truth but for the limited purpose of rebut-tal, and the jury was appropriately instructed. Here,the district court admitted the notes without limita-tion and in their entirety as substantive evidence. Itwas error to do so.25

25.

The distinction between admitting Al-Anssi's notesfor their substance or truth and admitting them for aspecified limited purpose is by no means a technicalone. When erroneously admitted for their truth, thenotes assumed essentially the same status as Al-Anssi'strial testimony, but were not subject to the same "de-vices for ensuring [the] accuracy" of in-court testi-mony: the witness oath, the opportunity to be ob-served by the adverse party, and cross-examination.5 Weinstein's Federal Evidence § 802.02[3]. Even if the

notes were potentially admissible for limited, non-substantive purposes, which we do not concede, thejury should have been admonished not to considerthem for their truth, and received guidance as to theproperly circumscribed use and value of the evidence.The jury received no such guidance, and was thereforefree to consider the notes — which were hearsay — asthe equivalent of any of the other properly admittedtrial evidence. Indeed, the government used the notesbasically as a substitute for Al-Anssi's testimony, re-peatedly supporting its arguments with assertionsfrom the notes rather than with Al-Anssi's statementson the stand. See supra note 23. The admission of the

notes without limitation constituted clear error.

3. Admission of the notes was not harmless as to Al-

Moayad's conviction on providing material support

to Hamas

The district court's erroneous admission of Al-Anssi'snotes as substantive evidence was not harmless. Giventhe importance of the notes to the government's case,the fact that they buttressed the testimony of a witnesswhose credibility had otherwise been severely dam-aged, and their direct relevance to Al-Moayad's con-

In arguing that the notes could be admit-ted without limitation in order to rebut a falseimpression, the government repeatedly quotesUnited States v. Gambino, 59 F.3d 353 (2d Cir.

1995), in which a panel of this Court opinedthat "[o]therwise inadmissible testimony maybe received on redirect in order to rebut a falseimpression created by an opposing party dur-ing cross-examination." Id. at 368. That case

cites Wiley, but — somewhat confusingly — al-

so relies on United States v. Rosa,11 F.3d 315 (2d

Cir. 1993). Rosa involves the superficially sim-ilar but separate doctrine of "curative admissi-bility," under which a trial court has discretion"to permit a party to introduce otherwise in-admissible evidence [for its substance] on anissue (a) when the opposing party has intro-duced inadmissible evidence on the same is-sue, and (b) when it is needed to rebut a falseimpression that may have resulted from theopposing party's evidence." Id. at 335; see also

Elfgeeh, 515 F.3d at 128. In this case, no party

argues that the defendants elicited inadmissi-ble evidence during their examinations of Al-Anssi, thereby triggering the doctrine of cura-tive admissibility and opening the door for thegovernment to introduce otherwise inadmis-sible hearsay for its substance on cross-exami-nation.



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viction on providing material support to Hamas, wecannot "conclude with fair assurance that the [notes]did not substantially influence the jury" on that count.Garcia,291 F.3d at 143 (quoting United States v. Rea, 958

F.2d 1206, 1220 (2d. Cir. 1992)); see also Kotteakos v.

United States, 328 U.S. 750, 765,66 S.Ct. 1239, *17090

L.Ed. 1557 (1946) (holding that "if one cannot say,with fair assurance, after pondering all that happenedwithout stripping the erroneous action from thewhole, that the judgment was not substantially swayedby the error, it is impossible to conclude that substan-tial rights were not affected.").

Most of the harmless error factors tilt against the gov-ernment. We first review the government's evidencewith regard to Al-Moayad's conviction for providingmaterial support. In its main summation, the govern-ment pointed to only two sources of proof on thatcharge: Al-Moayad's statements in Frankfurt, includ-ing his descriptions of his ties to individuals in Hamas,and Al-Anssi's claim that Al-Moayad told him he gave$3.5 million to Hamas (a figure that came not from theFrankfurt tapes but only from Al-Anssi's own notesand testimony). On rebuttal, the government againhighlighted Al-Anssi's claim that Al-Moayad admittedto donating $3.5 million to Hamas. The governmentthen cited the four charity receipts, the appearancein Al-Moayad's address book of phone numbers forHamas leaders, Mohammed Siyam's wedding speech,Al-Moayad's relationship with Hamas figure KhaledMeshal, and Al-Moayad's position as president of theAl-Aqsa foundation, which the government describedas "another front for Hamas."

This evidence is not overwhelming. The informationregarding Al-Moayad's connections to individuals inHamas and Mohammed Siyam's wedding speech con-stituted only inconclusive proof that Al-Moayad ac-tually provided material support to that organization.As to Al-Moayad's position as the president of the Al-Aqsa foundation, the government produced no directevidence at trial that Al-Aqsa really was merely a frontfor Hamas, or that it ever funneled money to support

Hamas's terrorist activities. With regard to the fourcharity receipts, as Al-Moayad points out, these re-ceipts make no mention of Hamas, the government'sevidence did not directly establish that the contribu-tions listed in the receipts actually went towards pro-viding material support to Hamas's terrorist activities(rather than to charitable groups), and the significan-ce of the receipts was contested at trial, See Jean-Bap-

tiste, 166 F.3d at 109 (in finding that the erroneous ad-

mission of evidence was not harmless, noting that al-though the government's properly admitted evidenceon a particular issue was "legally sufficient on its face. . . the import of that evidence was disputed.") Over-all, when reviewing the government's evidence on thecharge of providing material support to Hamas, wecannot say with reasonable assurance that without thenotes, the jury would have decided that Al-Moayadwas guilty on this count beyond a reasonable doubt.

The remaining three factors also compel us to findthat the error was not harmless. As discussed above,the government relied heavily on the notes in its sum-mations and twice highlighted Al-Moayad's alleged$3.5 million donation to the jury as proof that he pro-vided material support to that organization. See id. at

110 (listing the government's reliance on the improp-erly admitted evidence in its summation as a factorin finding harmful error). The notes were important,as they buttressed Al-Anssi's testimony on key pointsthat were unquestionably central to the charge of pro-viding material support to Hamas. See United States v.

Grinage, 390 F.3d 746, 751 (2d Cir. 2004) ("Where

the erroneously admitted evidence goes to the heartof the case against the defendant, and the other evi-dence against the defendant is weak, we cannot con-clude that the evidence was unimportant or was not asubstantial factor in the jury's verdict."); Forrester, 60

F.3d at 64-65 ("Error going `to the heart' of a criti-cal issue is less likely to be harmless." (quoting United

States v. Tussa, 816 F.2d 58, 67 (2d Cir. *171 1987))).

For example, the notes constituted the only supportfor Al-Anssi's claim that Al-Moayad gave $3.5 millionto Hamas, and the notes reinforced Al-Anssi's claim






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that the four charity receipts actually represented do-nations to Hamas, a point that was not clearly estab-lished elsewhere in the government's evidence. Final-ly, the notes cannot be viewed as simply cumulative ofAl-Anssi's testimony, given that Al-Anssi's credibilitywas subjected to significant attacks by the defendants,which the government attempted to remedy by intro-ducing the notes.

In sum, we cannot conclude that the jury may nothave been significantly affected by the admission ofAl-Anssi's notes. Despite the probative force that thecharity receipts, the tapes, or other evidence may havehad, it is apparent to us that Al-Anssi's notes wereof considerable significance "in relation to everythingelse the jury considered on the issue in question, as isrevealed in the record." Garcia, 291 F.3d at 144 (quot-

ing United States v. Rea, 958 F.2d 1206, 1220 (2d Cir.

1992)); see also Kaplan, 490 F.3d at 123. As in Garcia,

"[t]he evidence [on the charge of providing materialsupport to Hamas] was largely circumstantial and notso overwhelming to allow us to conclude that the jurywould have found [Al-Moayad] guilty" without con-sidering his notes. Garcia, 291 F.3d at 145; see also Gri-

nage, 390 F.3d at 752 (in finding harmful error, not-

ing that the evidence against a defendant was "thin"and "weak"). Because the introduction of Al-Anssi'snotes as substantive evidence was not harmless as tothe charge that Al-Moayad provided material supportto Hamas, we vacate Al-Moayad's conviction on thatcount.

4. Admission of the notes was not harmless as to the

defendants' entrapment defense

The defendants also contend that the erroneous ad-mission of the notes requires that we vacate their con-victions on the conspiracy and attempt counts. Wehave already concluded above that the improper ad-mission of the Black and Goba testimony compels usto vacate those convictions. Similarly, we find thatthe district court's error in admitting the notes wasnot harmless as to predisposition and therefore the

entrapment defense, and constitutes an additionalground for vacating the defendants' convictions onthe conspiracy and attempt counts.

We have already determined that the government'sother evidence on predisposition was largely inadmis-sible and not overwhelming. See supra Part II.A.3. The

substance of Al-Anssi's notes, by contrast, was highlyprobative as to the defendants' predisposition, and en-abled the government to bolster its otherwise prob-lematic evidence on that issue. Several assertions inthe notes that were critical to the government's pre-disposition case were not duplicated anywhere else inthe government's evidence except for Al-Anssi's tes-timony. As stated earlier, these assertions include, in-

ter alia, Al-Moayad's purported ties to Sheikh Abdul

Majid Al-Zindani, his past responsibility for choosingvolunteers to fight abroad (a claim that Al-Moayadhimself did not make either during the taped conver-sations in Frankfurt or in his post-arrest statement),his knowledge while still in Yemen that "Saeed"specifically wanted to support the armed mujahidin,an assertion that Al-Moayad's counsel contested inmarshaling his entrapment defense, and Al-Moaayd'salleged statements that he gave millions to Hamas andAl-Qaeda.

The notes were also critically important on the issueof Al-Moayad's relationship with Bin Laden, as theywere the government's only source suggesting thatAl-Moayad maintained close ties with Bin *172 Laden

and financially supported Al-Qaeda in the few yearsbefore the events of September 11, 2001. During histestimony at trial, Al-Anssi himself was unable toidentify the time frame during which Al-Moayad pro-fessed to have supported Bin Laden, and as we have al-ready noted, Al-Moayad and Zayed both clarified dur-ing the Germany meetings (and Al-Moayad strong-ly suggested in his post-arrest statement) that Al-Moayad's relationship with Bin Laden did not extendpast the 1980s.26 Such a distinction could undoubtedlycolor a jury's view of the charges against Al-Moayad,







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and of his predisposition to support terrorist activi-ties.

26.

We have found that "[e]ven if an appellate court iswithout doubt that a defendant is guilty, there must bea reversal if the error is sufficiently serious." Forrester,

60 F.3d at 65 (quoting Tussa,816 F.2d at 67). Like the

admission of the Black and Goba testimony, the ad-mission of Al-Anssi's notes as substantive evidencewas a serious error. The notes contained much of thegovernment's strongest, most direct evidence regard-ing Al-Moayad's predisposition and significantly but-tressed Al-Anssi's trial testimony, which had been im-peached by the defendants. As we have already not-ed, the government cited the notes repeatedly in itsmain and rebuttal summations, both as corroborationand as independent evidence of Al-Moayad's guilt. See

supra note 23. For these reasons, we cannot be "sure

that the [erroneous admission of the notes as sub-stantive evidence] did not influence the jury, or hadbut very slight effect." Kaplan, 490 F.3d at 122 (quot-

ing Kotteakos,328 U.S. at 764, 66 S.Ct. 1239). There-

fore, we conclude that the improper admission of thenotes was not harmless, and constitutes an additionalground upon which to vacate the defendants' conspir-acy and attempt convictions. See infra Part II.E.

C. Mujahidin Form, Wedding Speech, and Croatian Docu-

ments

The defendants assert that the district court erro-neously admitted the mujahidin form, Siyam weddingspeech, and Croatian documents. We agree that thedistrict court erred in admitting these items withoutlimitation as substantive evidence.

1. Mujahidin form

During the government's rebuttal case, the districtcourt admitted the mujahidin form, which purportedto link Al-Moayad to Al-Qaeda by showing that Al-Moayad had sponsored a mujahidin fighter to attendan Al-Qaeda training camp. The court admitted theform (against Al-Moayad only) without limitation assubstantive evidence and without explaining its rul-ing, over Al-Moayad's hearsay, relevance, and authen-ticity objections.

a. Authenticity

The government argues that the form was properlyauthenticated. We agree. Under Federal Rule of Evi-dence 901(a), "[t]he requirement of authentication oridentification as a condition precedent to admissibili-ty is satisfied by evidence sufficient to support a find-ing that the matter in question is what its proponentclaims." We have often commented that "[t]he bar forauthentication of evidence is not particularly high,"Gagliardi, 506 F.3d at 151, and proof of authentication

may be direct or circumstantial. See, e.g., United States v.

Tin Yat Chin, *173371 F.3d 31, 37 (2d Cir. 2004); Unit-

ed States v. Maldonado-Rivera,922 F.2d 934, 957 (2d Cir.

1990). Rule 901 is satisfied "if sufficient proof has beenintroduced so that a reasonable juror could find in fa-vor of authenticity or identification." SCS Commc'ns,

Inc. v. Herrick Co.,360 F.3d 329, 344 (2d Cir. 2004)

(quoting United States v. Dhinsa,243 F.3d 635, 658 (2d

Cir. 2001)).

Agent Hale Keenan described how the documents shereceived from Afghanistan, including the mujahidinform, were collected, received, sorted, analyzed, andsent to the United States. This testimony was suffi-cient to demonstrate that the form was likely what thegovernment claimed it to be-an application form foradmittance to a mujahidin training camp, which hadbeen seized in an area of Afghanistan where Al-Qaedamaintained training facilities. The district court cor-

The government also put forth no evi-dence at trial contradicting Al-Moayad's state-ments during his post-arrest interview that hisrelationship with Bin Laden was long over,that he had since spoken out publicly againstBin Laden, and that Bin Laden had actuallycalled for his death. See supra Part I.A.3.




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rectly concluded that the mujahidin form was proper-ly authenticated.

b. Co-conspirator exception to hearsay rule

The government argues that even though the mu-jahidin form was hearsay, it was nevertheless admissi-ble as "a statement by a coconspirator of a party dur-ing the course and in furtherance of the conspiracy."Fed.R.Evid. 801(d)(2)(E). According to the govern-ment, "there existed an Al-Qaeda conspiracy to recruitand train Mujahidin and . . . Al-Moayad directly par-ticipated in that conspiracy by, among other things,sponsoring Mujahidin for training with Al-Qaeda."We disagree that the form could be admitted as a co-conspirator statement.

We review a district court's finding that hearsay is ad-missible under the co-conspirator exception for clearerror. Maldonado-Rivera,922 F.2d at 959. To admit

hearsay testimony under Rule 801(d)(2)(E), the dis-trict court "must find (a) that there was a conspiracy,(b) that its members included the declarant and theparty against whom the statement is offered, and (c)that the statement was made during the course of andin furtherance of the conspiracy." United States v.

Alameh, 341 F.3d 167,176 (2d Cir. 2003) (quoting

Maldonado-Rivera, 922 F.2d at 958); see also 5 Wein-

stein's Federal Evidence § 801.34[6][c][i] ("The exis-

tence and membership of a conspiracy are preliminaryquestions of fact that must be resolved by the districtcourt before a challenged statement may be admittedunder Rule 801(d)(2)(E)."). The court must find thesepreliminary facts by a preponderance of the evidence.Bourjaily v. United States, 483 U.S. 171, 176, 107 S.Ct.

2775, 97 L.Ed.2d 144 (1987). "[W]hile the hearsaystatement itself may be considered in establishing theexistence of the conspiracy, `there must be some in-dependent corroborating evidence of the defendant'sparticipation in the conspiracy.'" United States v. Gi-

gante, 166 F.3d 75, 82 (2d Cir. 1999) (quoting United

States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996)); see

also United States v. Desena, 260 F.3d 150, 158 (2d Cir.

2001).

In this case, the district court did not satisfy the re-quirements of Rule 801(d)(2)(E). The court made nofindings, by a preponderance of the evidence or oth-erwise, about the existence of a conspiracy includingAl-Moayad and the individual who filled out the mu-jahidin form ("Abu Jihad"), nor do we think the courtcould have done so based on the record before us.Contrary to the government's contention, the recordfails to demonstrate Al-Moayad's "longstanding par-ticipation in a conspiracy to provide material supportto Al-Qaeda," other than some indication that Al-Moayad had a relationship with Bin Laden sometimein the past. The form *174 itself, given that it provides

no information about Abu Jihad's relationship withAl-Moayad other than the fact that he wrote Al-Moayad's name as his recommender, is not competentproof of their joint involvement in a conspiracy. In-deed, we do not know if Al-Moayad even knew AbuJihad, or was aware that Abu Jihad listed him on theform. The district court had virtually no basis for ad-mitting the mujahidin form for its substance as a co-conspirator statement.

c. Admissibility to rebut false impression

Alternatively, the government, citing Vasquez, Bilz-

erian, and Martinez, argues that the mujahidin form

was properly admitted to rebut the false impressionthat no evidence corroborated Al-Anssi's testimonyregarding Al-Moayad's predisposition and previoussupport for terrorist activity. We have already ex-plained that these cases do not permit a district courtto admit otherwise inadmissible hearsay as substantiveevidence. See supra Section II.B.2. Therefore, even if

the mujahidin form were proper rebuttal evidence,the district court would still have clearly erred in ad-mitting the form without limitation for its substance.

More to the point, the government misinterpretsthese cases. They concern the scope of the evidencethat may be introduced on redirect examination to re-




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but a specific false impression that was created duringcross-examination. Nothing in those cases would per-mit the government, as it attempts to do here, to in-troduce hearsay evidence in its rebuttal case to countera purportedly false impression created during the de-fendants' case-in-chief. Neither is the form admissibleas substantive evidence to rebut Al-Moayad's entrap-ment defense.

"[A]ny improper admission of co-conspirator testi-mony is subject to harmless error analysis." United

States v. Monteleone, 257 F.3d 210, 221 (2d Cir. 2001).

Although the district court's admission of the mu-jahidin form was in error, we must conclude after ap-plying the Kaplan factors that the error if considered

in isolation was harmless. The second Kaplan factor,

the prosecutor's conduct with respect to the improp-erly admitted evidence, weighs in favor of Al-Moayad;the government repeatedly mentioned the mujahidinform in its rebuttal summation and pointed to theform as evidence not only of Al-Moayad's alleged pro-vision of support to Al-Qaeda, but also of his predis-position. However, the form was only one among sev-eral pieces of evidence that the government put forthas to Al-Moayad's predisposition, suggesting that theform was at least somewhat cumulative. Additionally,the government points with some persuasive force tothe fact that Al-Moayad was acquitted on the chargeof providing material support to Al-Qaeda.

Overall, the factors lead us to conclude that althougherroneous, the district court's admission of the mu-jahidin form was ultimately harmless. We determinebelow, however, that in combination with other seri-ous trial errors, the improper admission of the formcast sufficient 10 doubt on the fairness of the trial as towarrant new proceedings. See infra Section II.E.

2. Mohammed Siyam wedding speech

Prior to its cross-examination of Al-Anssi, the gov-ernment re-offered the video of the group weddingand Mohammed Siyam's speech. The court admittedthe video without limitation over Al-Moayad's objec-

tions on hearsay and Rule 403 grounds. The govern-ment asserts that the video was admissible as a co-con-spirator *175 statement, to rebut the false impression

that no document or recording supported Al-Anssi'stestimony about Al-Moayad's previous involvementin terrorist activities, and as evidence of the defen-dants' knowledge that Hamas engages in terrorist acts.

For many of the same reasons we discussed with re-gard to the mujahidin form, the wedding video wasnot properly admitted under the co-conspirator state-ment exception to the hearsay rule. No independentevidence showed that either defendant was involvedin a joint conspiracy with Mohammed Siyam, otherthan their general ties to Hamas.27 The video itself wassome evidence of a connection between the defen-dants arid Siyam, showing that the defendants helpedto organize a wedding at which Siyam spoke and re-ferred to a suicide bombing. However, these factsstanding alone fall well short of meeting the criteriadiscussed above for the admission of evidence underRule 801(d)(2)(E).28

27.

28.

It should be noted that although the defen-dants admitted ties to individuals who wereleaders in Hamas, such as Siyam and KhaledMeshal, neither defendant was shown to be aHamas figure or even a "member" of Hamas.

Judge Wesley believes the wedding videocould have been admissible as a coconspiratorstatement had the trial judge been able tomake findings of fact regarding the extent ofAl Moayad's advance knowledge of the con-tent of Siyam's speech, or had the governmentargued that the conspiracy consisted of in-forming the wedding guests of the bombing.He believes that while the facts that Al Moayadorganized the wedding and Siyam spoke at thewedding do not necessarily lead to the conclu-sion that Al Moayad knew the contents ofSiyam's speech, these facts do, nonetheless,make it more likely that Al Moayad wouldhave known the contents of the speech. Judge



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As to the government's professed non-hearsay uses ofthe wedding video-to rebut a false impression createdduring the defendants' examinations of Al-Anssi, andto demonstrate the defendants' knowledge of Hamas'sterrorist activities and their predisposition to committhe charged crimes none of these uses justifies the dis-trict court's admission of the video for its substance,without limitation. Nevertheless, if admission of thevideo were the court's only evidentiary error, wewould find no cause for reversal of the defendants'convictions, as the video was largely cumulative ofother properly admitted evidence and the jury had al-ready been exposed to much of the substance of thevideo even before it was introduced into evidence.29

However, we have already found that the erroneousadmission of the Black and Goba testimony and Al-Anssi's notes were sufficiently prejudicial as to war-rant reversal. We conclude further that against thebackdrop of the district court's other evidentiary er-rors, the improper admission of the wedding video assubstantive evidence contributed to the overall unfair-ness of the trial. See infra Part II.E.

29.

3. Croatian documents

During the government's rebuttal case, the court ad-mitted the Croatian documents, including two addressbooks containing *176 Al-Moayad's phone number

and a last will and testament. The court admitted thedocuments without limitation against Al-Moayad,over his counsel's hearsay, relevance, and authenticityobjections. On appeal, Al-Moayad maintains that thedocuments were irrelevant and, with respect to thelast will and testament, inadmissible hearsay. The gov-ernment maintains that the documents were offeredfor non-hearsay purposes.30

30.

The address books were not hearsay. The governmentdid not rely on them to establish that the phone num-ber listed next to Al-Moayad's name was, in fact, hisphone number. We also conclude that, under the verylow standard for relevance, evidence that Al-Moayad'sname and contact information appeared in the addressbooks of two men identified as mujahidin fighters wasat least marginally relevant to the allegations in thiscase. See United States v. Quattrone, 441 F.3d 153, 188

(2d Cir. 2006) ("[S]o long as a chain of inferencesleads the trier of fact to conclude that the profferedsubmission affects the mix of material information,the evidence cannot be excluded at the threshold rel-evance inquiry."). Relevancy determinations lie with-in the "broad discretion" of the district court, and "wewill not reverse its ruling absent abuse of discretionindicative of arbitrariness or irrationality." United

States v. Quinones, 511 F.3d 289, n. 311 (2d Cir. 2007).

Under this standard, the district court did not act arbi-trarily or irrationally in admitting the address books.

The last will and testament is another matter. Thedocument was hearsay, and the government used the

Wesley believes these facts constitute suffi-cient independent corroborating evidence thatAl Moayad was in a conspiracy with Siyam toinform the wedding guests of the bombing. Hebelieves that, while the wedding speech couldhave been admissible under 801(d)(2)(E),there was not a sufficient basis in the recordand the arguments made by the governmentfor the admission of the speech.

Throughout the trial, the government re-ferred repeatedly to Siyam's speech and to thedefendants' laughter when the informantsbrought up the speech during the Frankfurtmeetings. Further, the jury viewed the tapeand read the transcript of that meeting amongthe defendants and the informants.

The government also asserts that the doc-uments would be admissible for their truth asco-conspirator statements, but because it con-cedes that this argument was not raised below,we decline to address it here.



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will for its substance. During its rebuttal summation,the government argued, "[I]f you look through thetranslations of these materials, one of these men has awill. In his will he basically says he's going to die as amartyr. That's what he's there for. These guys are Mu-jahidin. . . ." The will would not have been admissiblefor its truth as a co-conspirator statement. The gov-ernment's evidence, including the will itself, was in-sufficient to establish that Al-Moayad and the individ-ual from whom the will was seized were engaged in ashared criminal activity, even a general conspiracy tosupport Al-Qaeda. The district court therefore clearlyerred in admitting the will as substantive evidence.

As with the mujahidin form and wedding video, how-ever, were we considering the admission of the will inisolation, we would be inclined to conclude that it wasnot especially detrimental to the overall fairness of thetrial. Although the will was relevant to Al-Moayad'spredisposition, we think it was significantly less prej-udicial and important than Al-Anssi's notes, the mu-jahidin form, and the wedding video. Second, the tes-timony of the Croatian intelligence officer sufficientlyestablished-without reference to the will-that the willwas seized from a mujahidin fighter. Therefore, thewill was cumulative evidence of its author's identity asmujahidin. We have, however, already identified sev-eral other serious evidentiary errors that tainted thetrial and the defendants' convictions. In conjunctionwith these, the admission of the will added to the un-fairness of the proceedings to which the defendantswere subjected.

D. Derivative Entrapment Issue

Zayed contends that the district court erroneously de-nied his motions for a curative instruction and for re-opening of closing *177 arguments, after the govern-

ment and Zayed's counsel both discussed derivativeentrapment in their summations but the court omit-ted the derivative entrapment instruction from the ju-ry charge. We conclude that the district court did notcommit reversible error.

We review Zayed's claims for plain error, as Zayed didnot preserve his objections to the jury charge. See, e.g.,

Jones v. United States,527 U.S. 373, 388, 119 S.Ct. 2090,

144 L.Ed.2d 370 (1999); Fed.R.Crim.P.52(b). Zayed'srequests for a supplemental charge and to reopensummations, articulated after the jury had begun de-liberations, did not preserve his arguments for full ap-pellate review, because "[a] party who objects to anyportion of the instructions or to a failure to give a re-quested instruction must inform the court of the spe-cific objection and the grounds for the objection before

the jury retires to deliberate." Fed.R.Crim.P. 30(d) (em-

phasis added).

Zayed's counsel did ask the court, while it was still giv-ing the charge, to instruct the jury to disregard theattorneys' closing arguments as to derivative entrap-ment. However, this request did not constitute a prop-er objection to the jury charge, particularly becauseZayed's counsel indicated after the charge was com-pleted that he had "[n]o objections or exceptions." Wehave held that "[a] party who has requested an in-struction that has not been given is not relieved ofthe requirement [under Rule 30] that he state distinct-ly his objection to the instruction that is given." Unit-

ed States v. Crowley, 318 F.3d 401, 412 (2d Cir. 2003)

(quoting United States v. Friedman, 854 F.2d 535, 556

(2d Cir. 1988)); see also Jones, 527 U.S. at 388, 119 S.Ct.

2090 ("Nor does a request for an instruction before thejury retires preserve an objection to the instruction ac-tually given by the court."). Therefore, Zayed did notproperly preserve his objection to the district court'sfailure to give a curative instruction.

Under plain error review, "relief is not warranted un-less there has been (1) error, (2) that is plain, and (3)affects substantial rights." Jones, 527 U.S. at 389, 119

S.Ct. 2090. "Even when an error is plain and affectssubstantial rights, a reviewing court should only exer-cise its remedial discretion under Rule 52(b) if the er-ror `seriously affect[s] the fairness, integrity or pub-lic reputation of [the] judicial proceedings.'" Crowley,

318 F.3d at 415 (quoting United States v. Olano,507 U.S.



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725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).Were we able to engage in a more full-bodied review,we would likely conclude that the district court abusedits discretion in failing to give a curative instructionas to derivative entrapment. We recognize the not-in-significant possibility that, after both sides explicitlydiscussed derivative entrapment in their summations,the jury was confused as to Zayed's direct entrapmentdefense, which constituted his primary defense to thecharges against him.

However, the district court instructed the jury duringthe government's main summation that "I will giveyou what the law is. If there is any conflict betweenwhat lawyers say is the law and what I say is the law,it is my word that is controlling." The court repeat-ed this admonition during the jury charge, stating that"[i]f any attorney has stated a legal principle differentfrom any that I state to you in my instructions, it ismy instructions that you must follow." When viewingthe jury charge as a whole, see, e.g., Jones, 527 U.S. at

391,119 S.Ct. 2090, and given the narrow confines ofplain error review, we are unable to conclude that thedistrict court's failure to give a curative instruction asto *178 derivative entrapment sufficiently affected "the

fairness, integrity or public reputation" of the trial asto warrant reversal.

E. Cumulative Error

Finally, the defendants argue that the district court'serrors, even if they do not warrant relief when con-sidered individually, "when considered collectively de-nied [the defendants] due process of law and funda-mental fairness." We agree.31

31.

The Supreme Court has repeatedly recognized thatthe cumulative effect of a trial court's errors, evenif they are harmless when considered singly, mayamount to a violation of due process requiring rever-sal of a conviction. See, e.g., Taylor v. Kentucky, 436 U.S.

478, 487 n. 15,98 S.Ct. 1930, 56 L.Ed.2d 468 (1978)(finding that "the cumulative effect of the potentiallydamaging circumstances of this case violated the dueprocess guarantee of fundamental fairness in the ab-sence of an instruction as to the presumption of in-nocence"); Chambers v. Mississippi 410 U.S. 284,302-03,

93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (concluding "thatthe exclusion of . . . critical evidence, coupled with theState's refusal to permit Chambers to cross-examine [awitness], denied him a trial in accord with traditionaland fundamental standards of due process. . . . [U]nderthe facts and circumstances of this case the rulings ofthe trial court deprived Chambers of a fair trial"). The"cumulative unfairness" doctrine is also firmly embed-ded in this Circuit's precedents. See, e.g., United States

v. Guglielmini, 384 F.2d 602, 607 (2d Cir. 1967) (hold-

ing that, even though not "any one of the errors com-mitted during the trial would have required reversal ofthe convictions," "the total effect of the errors we havefound was to cast such a serious doubt on the fairnessof the trial that the convictions must be reversed.");see also United States v. Yousef, 327 F.3d 56, 172 (2d Cir.

2003) (per curiam); United States v. Rahman, 189 F.3d

88, 145 (2d Cir. 1999) (per curiam); Salameh,152 F.3d

at 157-58; United States v. Fields, 466 F.2d 119, 121 (2d

Cir. 1972).

We believe that, in the aggregate, the district court'serrors deprived the defendants of a fair trial.32 Thedistrict court's cumulated errors in admitting Al-Anssi's notes and the testimony of Gideon Black andYahya Goba "cast such a serious doubt on the fairness

It may be helpful at this point to observethat with regard to most of the evidentiaryrulings we have reviewed herein, we have notheld that the evidence would have been inad-missible under any circumstances. Rather, wehave criticized the particular way in which theevidence was handled during this trial. For ex-ample, we found improper the admission of

Al-Anssi's notes, the mujahidin form, thewedding video, and the Croatian will withoutlimitation. The problems surrounding the Go-ba testimony were magnified by the fact thatGoba testified far beyond the government'sproffer.



https://casetext.com/case/united-states-v-olano?page=736

https://casetext.com/case/united-states-v-olano

https://casetext.com/case/united-states-v-olano




https://casetext.com/case/taylor-v-kentucky-2




https://casetext.com/case/chambers-v-mississippi?page=302

https://casetext.com/case/united-states-v-guglielmini?page=607

https://casetext.com/case/us-v-yousef-4?page=172

https://casetext.com/case/us-v-rahman-6?page=145




https://casetext.com/case/united-states-v-fields-17?page=121


of the trial" as to warrant reversal of the defendants'convictions. That doubt is especially grave when wealso take into account the district court's erroneousadmission of the mujahidin form, the wedding video,and the Croatian last will and testament, as well as itsquestionable handling of the derivative entrapment is-sue.

32.

III. CONCLUSION

For the foregoing reasons, we VACATE the judg-ments of conviction and REMAND *179 to the district

court for further proceedings consistent with thisopinion before a different district court judge.33

33.

Our identification of numerous errors bythe district court distinguishes this case fromYousef, where we concluded that "[t]he Dis-

trict Court committed no trial errors" with re-spect to the defendant making the due processclaim. Yousef, 327 F.3d at 172. Similarly, in

Rahman, we found that "most of the `errors'

[Rahman] cites in support of his cumulative-unfairness claim were not errors at all." Rah-

man,189 F.3d at 145.



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United States v Al-moayad 2008

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