The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Defendants YASSIN MUHIDDIN AREF ("Aref") and MOHAMMED MOSHARREF HOSSAIN ("Hossain") were charged in a thirty (30) count superseding indictment with various violations of 18 U.S.C. §§ 1956(a)(3), 2339A, 2339B, 1546, 1001 & 2. Following a four-week jury trial, Hossain was convicted of each of the twenty-seven (27) counts with which he was charged. Aref was convicted of ten (10) of the thirty (30) counts with which he was charged. Both defendants now move to vacate their convictions pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or, in the alternative, for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The government has opposed the motions.
Both defendants move for judgments of acquittal pursuant to Fed. R. Crim. P. 29 asserting that the trial evidence was insufficient as a matter of law to support the jury's guilty verdicts. See Fed. R. Crim. P. 29(c). On such motions, the Court must ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004)(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
"[C]courts must be careful to avoid usurping the role of the jury when confronted with a motion for acquittal." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). In this regard, the Court must avoid substituting its own determination of the weight of the evidence presented and the reasonable inferences that may be drawn from that evidence. Id. "Indeed, it is the task of the jury, not the court, to choose among competing inferences that can be drawn from the evidence." Id. The Court must "credit every inference that the jury might have drawn in favor of the government," United States v. Temple, 447 F.3d 130, 136-37 (2d Cir. 2006), and resolve "all issues of credibility in favor of the jury's verdict." United States v. Desena, 260 F.3d 150, 154 (2d Cir. 2001); see also United States v. Florez, 447 F.3d 145, 154-155 (2d Cir. 2006)("In assessing sufficiency, we are obliged to view the evidence in its totality and in the light most favorable to the prosecution, mindful that the task of choosing among permissible competing inferences is for the jury, not a reviewing court.").
"The traditional deference accorded to a jury's verdict is especially important when reviewing a conviction for conspiracy . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel." United States v. Jackson, 335 F.3d at 180 (internal quotation marks and citation omitted). Further, the Court must "bear in mind that the jury's verdict may rest entirely on circumstantial evidence." Id.
Although a defendant's burden on such a motion is not insurmountable, a judgment of acquittal will only be granted if "no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Cassese, 428 F.3d 92, 98 (2d Cir. 2005). Put another way, a Rule 29 motion must be denied if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Temple, 447 F.3d at 136 (emphasis in original).
Rule 33 provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). This rule by its terms gives the trial court broad discretion to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice. The district court must strike a balance between weighing the evidence and credibility of witnesses and not wholly usurping the role of the jury. Because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, it is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment. An example of exceptional circumstances is where testimony is patently incredible or defies physical realities, although the district court's rejection of trial testimony by itself does not automatically permit Rule 33 relief.
The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice. The trial court must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict. The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation.
There must be a real concern that an innocent person may have been convicted. Generally, the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority sparingly and in the most extraordinary circumstances.
United States v. Ferguson, 246 F.3d 129, 133-34 (2d Cir. 2001)(internal quotation marks and citations omitted).
a. The Sting and the Charges
The first twenty-seven (27) counts of the superseding indictment arose out of a sting operation in a which a government cooperating witness ("CW") claimed that he was importing a Surface-to-Air Missile ("SAM") into the United States. The CW proposed a scheme to provide the $50,000 cash proceeds from the importation of the SAM to Hossain who would, in turn, provide monthly checks written to the CW's business, Hay's Distributors, in the total amount of $45,000.00. See Trial Trans. pp. 299-318, 364-406. Hossain would keep the remaining $5,000.00. Id. In keeping with the Islamic faith that both the CW and Hossain observed, Hossain requested that Aref, the Imam at the local Islamic mosque, serve as the witness to the financial transactions of this plan. Id. Aref agreed. Id. In January and February of 2004, the CW told Hossain and Aref that the SAM was going to be used in an attack on the Ambassador of Pakistan in New York City in order to teach the President of Pakistan a lesson. See Govt. Ex. 2 L-T; Govt. Ex. 2 N-T; Trial Trans. pp. 327-28. The CW further advised that the attack would be carried out by Jaish-e-Mohammed, or JEM, an Islamic extremist group based in Pakistan that is on the United States State Department's list of designated foreign terrorist organizations. See Govt. Ex. 2 L-T; Govt. Ex. 2 N-T.
On the following five dates, the CW provided cash payments to Hossain pursuant to this plan: January 2, 2004 ($5,000.00); January 21, 2004 ($10,000.00); February 12, 2004 ($10,000.00); April 15, 2000 ($10,000.00), and June 9, 2004 ($5,000.00). Trial Trans. pp 299-318, 364-406.*fn1 Each time, Aref received and counted the cash and then gave it to Hossain. Id. Aref provided receipts to the CW for the cash (although the receipts were not always provided to the CW on the same day that the cash was provided). Id. On the following ten dates, Hossain provided a check to the CW made payable to the CW's business: January 2, 2004 ($2,000.00); January 21, 2004 ($2,000.00); February 12, 2004 ($2,000.00); February 13, 2004 ($6,000.00); March 31, 2004 ($2,000); April 16, 2000 ($5,000.00); May 4, 2004 ($2,000.00); June 1, 2004 ($2,000.00); July 1, 2004 ($2,000.00); and August 3, 2004 ($2,000.00). Id. Aref was present for and witnessed each payment. Id.
Counts 1-27 charge both Aref and Hossain as follows:
(a) one count of conspiracy to conceal or disguise the nature, location, source, ownership or control of property believed to be the proceeds of violations of 18 U.S.C. §§ 922(a)(1), 2339A and 2339B, in violation of the money laundering sting statute, 18 U.S.C. § 1956(a)(3)(B) & (h) (Count 1);
(b) ten counts, based on ten financial transactions (January 2, January 21, February 12, February 13, March 31, April 16, May 4, June 1, July 1 and August 3, 2004), of attempting, or aiding and abetting an attempt, to conceal or disguise the nature, location, source, ownership or control of property believed to be the proceeds of violations of 18 U.S.C. §§ 922(a)(1), 2339A and 2339B, in violation of the money laundering sting statute, 18 U.S.C. § 1956(a)(3)(B), and 18 U.S.C. § 2 (Counts 2-11);
(c) one count of conspiracy to conceal or disguise the nature, location source or ownership of material support or resources in connection with an attack with a weapon of mass destruction on a person or property within the United States, in violation of 18 U.S.C. § 2339A (Count 12);
(d) seven counts, based on seven financial transactions (on February 13, March 31, April 16, May 4, June 1, July 1 and August 3, 2004), of attempting, or aiding and abetting an attempt, to conceal or disguise the nature, location source or ownership of material support or resources in connection with an attack with a weapon of mass destruction on a person or property within the United States, in violation of 18 U.S.C. §§ 2339A & 2 (counts 13-19);
(e) one count of conspiring to provide material support to a designated terrorist organization (JEM), in violation of 18 U.S.C. § 2339B (Count 20); and
(f) seven counts, based on seven financial transactions (on February 13, March 31, April 16, May 4, June 1, July 1 and August 3, 2004), of attempting, or aiding and abetting an attempt, to provide material support to a designated terrorist organization (JEM), in violation of 18 U.S.C. §§ 2339B & 2 (Counts 21-27).
Three counts charged only Aref with the following offenses:
(a) one count of making a false statement on February 13, 2002 on INS Form I-485 Application to Register Permanent Resident or Adjust Status (answering "none" when directed to list political organizations of which he had been a member or with which he had been affiliated since his 16th birthday), in violation of 18 U.S.C. § 1546 (Count 28); and
(b) two counts of making false statements to the FBI on August 5, 2004 by denying that he had been a member or part of the Islamic Movement in Kurdistan ("IMK"), and denying that he personally knew an IMK leader, Mullah Krekar, in violation of 18 U.S.C. § 1001 (Counts 29 & 30).
At the conclusion of the trial, the jury convicted Hossain of every count with which he was charged (i.e Counts 1-27). Aref was convicted of ten (10) counts as follows: (a) conspiracy to engage in money laundering (Count 1); (b) two substantive acts of money laundering, on July 1 and August 3, 2004 (Counts 10-11); (c) conspiracy to provide material support in connection with an attack with a weapon of mass destruction (Count 12); (d) two substantive acts of material support in connection with an attack with a weapon of mass destruction, on July 1 and August 3, 2004 (Counts 18-19); (e) conspiracy to provide material support to a designated terrorist organization (Count 20); (f) two substantive acts of material support to a designated terrorist organization, on July 1 and August 3, 2004 (Counts 26-27); and (g) one count of making a false statement to the FBI (denying that he knew Mullah Krekar) (Count 30).
On the instant motion, Hossain contends that:
(a) there was insufficient evidence
(i) that the SAM was to be used against any person in the United States, and
(ii) that Hossain knew that JEM engaged in terrorist activities;
(b) the testimony of the government's expert on Islamic fundamentalist groups, Evan Kohlmann, was improperly admitted, without which there was insufficient evidence that Hossain was predisposed to commit the crimes with which he was charged;
(c) the government did not prove that Hossain was predisposed
(i) to commit the crimes involving terrorism as charged at Counts 12 through 27; and
(ii) to engage in money laundering as charged in Counts 1 through 27, and therefore he is entitled to a finding of entrapment as a matter of law.
Aref contends that his convictions on Counts 1, 10, 11, 12, 18, 19, 20, 26 and 27*fn2 should be reversed because there was insufficient evidence that:
(i) that the CW imported SAMs,
(ii) that the SAM was to be used in an attack,
(iii) that by witnessing the loan, he was helping to launder the money;
(iv) what the phrase "to legalize the money" meant,
(v) what a missile or chaudry*fn3 was, and
(vi) that the item that the CW imported was connected to an attack in New York City;
(c) he intended to violate or believed he was violating the law by witnessing the financial transactions between Hossain and the CW.
c. The Government's Evidence
The Government contends that the following evidence presented at trial supports both defendants' convictions on the challenged counts.
1. November 20, 2003 - Display of the SAM to Hossain
On November 20, 2003, prior to any money laundering proposal, the CW and Hossain had the following conversation about the items that the CW imported from China:
CW:*fn4 And we also import weapons from China.
CW: We import that too. So, we have two, three contacts in New York whose name we import in. They're our brothers, our Muslim brothers who live there. You understand, right? Govt. Ex. 2 D-T 4:2-8.
The CW then showed Hossain a SAM, telling Hossain:
CW: This - look at this. This came from China, right? Do you know what this is?
CW: This is for destroying airplanes. This is heat sensor, you know.
CW: This comes from there, from China.
CW: It saves us 50,000 rupees. We get 50,000 dollars in this. This comes for our Mujahid brothers. I have been doing this work for about five years.
CW: This is Muslim work, understand?
CW: For all these Muslim countries. Today it's going to New York. Today, it came. This comes in our packing, in our containers, see?
CW: From China. This will go straight to New York, it will be shipped.
CW: So yes, I was thinking I'll show this to my brother as well that I also do this business for my brothers, my Muslim brothers. I - It's been about five years. I had a friend who used to do this, but he gave me this work to me to do.
CW: This is easily about four, five thousand worth of merchandise.
MH: Then from New York, it'll be transferred to another place?
CW: I don't have anything to do with that. My job is to get it to New York. You've heard the term "stinger," right? This is a SAM right? This hits planes.
CW: It's used for hitting the planes. All the Mujahideen brothers, right?
MH: I've seen it on television.
MH: I had never seen it. I have, but on television.
CW: On television. Did you like this business? So this is one of my other businesses.
MH: Good money can be made from this-
CW: What is legal in this world? [laughs loudly] What is legal in this world?
What is legal is legal? Huh? Tell me what is legal in the world? Huh?
2. December 2, 2003 - Hossain Demands Money
On December 2, 2003, still prior to any money laundering proposal, and after he had been shown the SAM, Hossain demanded money from the CW in the following exchanges:
MH: No sir. I asked you to give me some money, but you showed me such an aspect that-
CW: When did I? When did I show that? When did you ask me? I asked you. You said, "It's this much." So I said, "No problem. Whenever you say the word." When do you need this?
MH: I needed two - three thousand the next day.
Govt. Ex. 2 E-T, 7:2-5.*fn6
Later in the conversation, Hossain brought up ...