The opinion of the court was delivered by: Loretta A. Preska, U.S.D.J.
Defendant Rafiq Sabir, a/k/a the Doctor, is charged as part of a four-count fourth superseding indictment (the "Indictment") with conspiring to provide, and with attempting to provide, material support or resources to the al Qaeda foreign terrorist organization, in the form of "medical support to wounded jihadists," in violation of 18 U.S.C. § 2339B. Trial began on April 25, 2007.*fn1
At a conference held on April 17, 2007, the Court heard oral argument on Dr. Sabir's motion in limine to introduce psychological expert testimony from Dr. Hope Hill. At a conference held on April 20, 2007, the Court heard oral argument on Dr. Sabir's motion in limine to preclude expert testimony on al Qaeda from Evan Kohlmann. Given the proximity to trial and the parties' need to prepare sufficiently in advance thereof, the Court issued its rulings to preclude the testimony of Dr. Hill and to permit the testimony of Dr. Kohlmann from the bench at the conclusion of those conferences. This written decision now follows.
1. Dr. Hill's Proffered Expert Testimony
On March 31, 2007, Dr. Sabir filed a motion in limine to obtain the Court's permission in advance of trial to introduce expert testimony from Dr. Hill. In that submission, Edward D. Wilford, counsel for Dr. Sabir, described the testimony offered as bearing on "choices of association" that he likened to expert testimony concerning an organization in a racketeering or narcotics trial. (Dr. Hill Notice at 1; Dr. Hill Mem. at 2).*fn2 In addition, Mr. Wilford stated that the purpose of Dr. Hill's testimony would be to negate the intent elements of the crimes charged. (Dr. Hill Notice at 1). Specifically, Mr. Wilford indicated that Dr. Hill would testify about "[r]isk factors and how [they] impacted on Dr. Sabir's inability to formulate the intent necessary to provide material support to [a]l Qaeda" and "[h]ow the life history of Dr. Sabir impacted his ability to formulate intent." (Id.).
On April 15, 2007, Mr. Wilford further described the expected testimony of Dr. Hill to be, in essence, that Dr. Sabir made bad decisions in his adult life because of negative childhood experiences, particularly his lack of a father figure and the mental illness of his mother. (Dr. Hill Reply Mem. at 1-2).*fn3 These "poor decisions," according to Mr. Wilford's supplemental proffer, resulted in a "pattern of self sabotage" that made Dr. Sabir "vulnerable to his current association with Tarik Shah as he grew to see Shah as the brother and father figure he never had . . . [resulting in] a relationship which proved to be disastrous." (Id.). In contrast to his original proffer, Mr. Wilford did not state in his reply submission that Dr. Hill would testify concerning Dr. Sabir's ability to form the requisite intent to commit the crimes charged. (Id.).
The Government opposed the introduction of Dr. Hill's testimony primarily on two grounds. First, the Government contended that "the type of testimony now offered is completely inadmissible, as it is not mental state testimony related to [Dr.] Sabir's intent to commit the crimes with which he is charged, but is instead . . . an attempt merely to justify or excuse [Dr.] Sabir's actions." (Dr. Hill Opp'n Mem. at 2).*fn4 Second, the Government asserted that, even if Dr. Hill's testimony was relevant, "the type of evidence proffered should be excluded as it would not be helpful to the trier of fact, would tend to be confusing to the jury, and is, at bottom, a blatant attempt to gain sympathy from the jury and to get [Dr.] Sabir's life story before the jury without [his] having to testify himself." (Id.). In particular, the Government asserted during oral argument that there is even greater concern for confusion to the jury here, where specific intent is not an element of the substantive offense charged in Count Two of the Indictment. (Transcript of Oral Argument, dated April 17, 2007, at 26/20-27/12 ("So you have one specific intent crime, one general intent crime, or a knowledge crime that is not a specific intent crime, and you are asking the jury to potentially apply this testimony to one and not the other.")).
At oral argument, Mr. Wilford conceded that Dr. Hill's proffered testimony does not purport to address whether Dr. Sabir had the mental capacity to form the requisite intent to commit the charged crimes. (Id. at 17/9-10; 23/8-13). That is why, according to Mr. Wilford, he did not serve a notice pursuant to Rule 12.2 of the Federal Rules of Criminal Procedure placing Dr. Sabir's mental state in issue. (Id. at 17/3-8; 23/8-13). Indeed, Mr. Wilford admitted that Dr. Sabir had the mental capacity to form the requisite intent. (Id. at 23/22-23; 25/15-18).
Rather, Mr. Wilford asserted that Dr. Hill's proffered testimony would support an "alternative explanation for what happened." (Id. at 17/13-14). According to Mr. Wilford, this "alternative explanation" would provide jurors with a "framework to make [the] decision" of whether Dr. Sabir intended to commit the charged offenses rather than invite them to commit jury nullification. (Id. at 24/10-22). Mr. Wilford conceded that Dr. Sabir can, of course, testify to this effect and represented that he will do so at trial. (Id. at 17/13-18). However, according to Mr. Wilford, jurors are less likely to believe this testimony without the elaboration and amplification that Dr. Hill's proffered testimony can provide by grounding it in scientific knowledge and terminology. (Id. at 24/1-4).
Finally, Mr. Wilford disputed the Government's contention that Dr. Hill's testimony would result in jury confusion because of the different mens rea elements in the crimes charged. (Id. at 27/21-23; 28/19-21). According to Mr. Wilford, specific intent is an element of both the conspiracy offense charged in Count One of the Indictment and the substantive offense charged in Court Two of the Indictment. (Id. at 28/1-5 ("The government's position is [that] the substan[tive] crime is not a specific intent crime, and we don't accept that as being valid. We think that the proof that they have to establish is that it was [Dr. Sabir's] intent specifically to provide material support to [a]l-Qaeda . . . .")).
2. Mr. Kohlmann's Proffered Expert Testimony
On February 23, 2007, the Government provided notice pursuant to Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure of its intention to call Mr. Kohlmann at trial. (Kohlmann Notice at 1).*fn5 The Government disclosed that Mr. Kohlmann "will testify about the following general subject matters": (1) "[t]he origins and history of the al Qaeda terrorist organization;" (2) "[t]he structure and leadership of al Qaeda;" (3) "[a]l Qaeda terrorist training camps, instructional methods, and operational logistics;" (4) "[s]pecific acts of terrorism perpetrated by al Qaeda, including acts of terrorism in Saudi Arabia;" and (5) "Azzam Publications, producers of jihadi videos such as 'Martyrs of Bosnia.'" (Id. at 1-2).
On April 17, 2007, Dr. Sabir filed a motion in limine to preclude Mr. Kohlmann's testimony and, alternatively, to limit the scope of his testimony. (Kohlmann Opp'n Mem. at 2).*fn6 At the outset, Mr. Wilford contended that Mr. Kohlmann's proffered testimony failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence. First, Mr. Wilford asserted that Mr. Kohlmann's proffered testimony is not "based upon sufficient facts or data" because it has merely been "culled from a handful of cases and a series of internet reports." (Id. at 2). Second, Mr. Wilford claimed that Mr. Kohlmann's proffered testimony is not "the product of reliable principles and methods" because he "places great emphasis on the so-called statements of Mujahideen on the internet or during interrogation" and "there is no evidence that . . . [they] are true or what they are based upon or the conditions under which the statements were made." (Id.). Third, Mr. Wilford contended that Mr. Kohlmann has not "applied the principles and methods reliably to the facts of the case" because he has not "ascertain[ed] whether Dr. Rafiq Sabir was even aware of the items proposed to be testified about." (Id.).
Assuming the Court qualified Mr. Kohlmann as an expert, Mr. Wilford asserted that certain topics should not be included within his testimony. (Id. at 2-3). For instance, Mr. Wilford stated that expert opinion about the "structure and leadership" of al-Qaeda is unnecessary and its leader, Usama bin Laden, "is known to the layperson." (Id. at 3). Mr. Wilford further contended that Mr. Kohlmann's "proffered testimony with respect to terrorist training camps, instructional methods and operational logistics is irrelevant as to Dr. Sabir," although it may be relevant to one of his charged co-conspirators, Tarik Shah. (Id.). In addition, according to Mr. Wilford, Mr. Kohlmann's proffered expert testimony about "specific acts of terrorism in Saudi Arabia is speculative unverified information based on propaganda from the internet." (Id.). Finally, Mr. Wilford asserted that Mr. Kohlmann's "proffered testimony with respect to Azzam Publications is irrelevant as to Dr. Sabir and any discussion of a video entitled 'Martyrs of Bosnia' is clearly unrelated to the issues in this case and . . . its prejudicial impact outweighs [its] probative value." (Id.).
On April 18, 2007, the Government produced Mr. Kohlmann's expert report and submitted the transcript of his hearing on November 2, 2005 in United States v. Paracha, No. 03 Cr. 1197 (S.D.N.Y.), pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-92 (1993). (Kohlmann Reply Mem. at 2, 7 n.3).*fn7 The Government also explained the relationship between Mr. Kohlmann's proffered testimony and the proof it expects to adduce at trial.
According to the Government, its "proof will include extensive audio recordings of conversations involving coconspirator Tarik Shah, first with a cooperating witness and later with an FBI undercover agent." (Id. at 2). During these conversations, "Shah . . . repeatedly refers to his longtime friend, 'the doctor,' who shares his views and is likewise interested in assisting Muslim fundamentalist extremist fighters." (Id.). In addition, the Government's proof is expected to include evidence of a May 20, 2005 meeting between the FBI undercover agent, Tarik Shah, and Dr. Sabir, during which Dr. Sabir "took bayat, the al Qaeda pledge of fealty and obedience to Usama bin Laden and the organization." (Id.). At that meeting, the Government proffers that Dr. Sabir "noted his then-current employment with a hospital in Riyadh, Saudi Arabia, his plans to return there shortly, and his willingness to aid wounded terrorists who would come to him for aid." (Id.). Finally, the Government intends to introduce "[m]aterials recovered from searches [that] will corroborate [Dr. Sabir's] intent, as expressed to the undercover agent, to provide support to the al Qaeda terrorist organization." (Id.).
The Government asserted that Mr. Kohlmann's proffered testimony concerning the history, structure, organization, membership, and operation of al Qaeda is relevant because, "[a]s in any 'sting' case, the Government needs to explain the role assumed by the undercover agent and how it relates to the real-life organization being mimicked." (Id.). Since "[Tarik] Shah and [Dr.] Sabir have substantial knowledge of al Qaeda and its functioning, . . . the undercover agent did not need to go into such details ...