The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:
United States v. al Kassar
(Argued: February 7, 2011
Before: DENNIS JACOBS, Chief Judge, PETER W. HALL, Circuit Judge, SHIRA A. SCHEINDLIN, District Judge.*fn1
Appeals by three defendants from their criminal
convictions, following jury trials in the United
States District Court for the Southern District of New
York (Rakoff, J.), for conspiring to kill U.S. officers,
to acquire and export anti-aircraft missiles, and to
provide material support to a known terrorist organization.
Two defendants were additionally convicted of money
laundering and conspiring to kill U.S. citizens. Defendants argue
on appeal that federal subject-matter jurisdiction is
lacking, that their due process rights were violated, that
exculpatory evidence was improperly excluded, and that
the evidence of a conspiracy among them was legally
insufficient. As to the conviction for conspiring
to acquire and export anti-aircraft missiles, defendants
arguethat the statute does not criminalize conspiracy, that
the jury was improperly instructed on the statute's
scienter requirements, and that the defendants' conduct falls
within the statute's exception for conduct authorized by the
U.S. government. As to the conviction for conspiring
to knowingly support a terrorist organization, defendants
argue that the statute violates due process by not requiring
that the support be intended to further specifically
Defendants Monzer al Kassar, Luis Felipe Moreno Godoy, and Tareq Mousa al Ghazi appeal their criminal convictions, entered after jury trials in the United States District Court for the Southern District of New York (Rakoff, J.), for conspiring to kill U.S. officers, to acquire and export anti-aircraft missiles, and to knowingly provide material support to a terrorist organization. Al Kassar and Godoy were also convicted of conspiring to kill U.S. citizens and of money laundering. Defendants argue on appeal that federal subject-matter jurisdiction is lacking, that their due process rights were violated, that exculpatory evidence was excluded, and that the evidence of a conspiracy among them was legally insufficient. As to the conviction for conspiring to acquire and export anti-aircraft missiles, defendants argue that the statute does not criminalize conspiracy, that the jury was improperly instructed on the statute's scienter requirements, and that the defendants' conduct falls within the statute's exception for conduct authorized by the U.S. government. As to the conviction for conspiring to knowingly support a terrorist organization, defendants argue that the statute violates due process by not requiring that the support be intended to further specifically criminal activities.
Since the 1970s, the U.S. government has suspected
Monzer al Kassar, a Spanish national and resident, of
illegal arms trafficking. United States v. al Kassar, 582
F. Supp. 2d 488, 491 (S.D.N.Y. 2008) ("Al Kassar I").
In 2005, the Drug Enforcement Administration ("DEA") set up
a sting operation to apprehend him for selling arms
To this end, the DEA sent Samir Houchaimi, a confidential informant, to locate Tareq Mousa al Ghazi, a known associate of al Kassar, and set up a meeting with al Kassar. Houchaimi went to Lebanon, where al Ghazi lived, and won his trust over several months. Houchaimi told al Ghazi that he was in the weapons trade, asked to meet with al Kassar, and gave al Ghazi a fake end-user certificate*fn2 for Nicaragua supplied by the DEA. Houchaimi asked al Ghazi to arrange a meeting with al Kassar, and al Ghazi agreed.
Al Kassar arrived at the arranged meeting in Beirut
holding the end-user certificate Houchaimi had given to
al Ghazi. The meeting was fruitful, ending with al
Kassar inviting Houchaimi to his mansion in Spain to
further discuss the Nicaraguan arms deal.
At the meeting in Spain (in February 2007), Houchaimi introduced al Kassar to "Carlos" and "Luis"--two undercover DEA agents posing as members of FARC (a left-wing Colombian terrorist organization)--and al Kassar introduced his associate, Luis Felipe Moreno Godoy. The DEA agents told al Kassar they were interested in buying weapons for FARC's use against the U.S. military in Colombia. They gave al Kassar a list of weapons they wanted, which included anti-aircraft missiles ("SAMs"). Al Kassar agreed to negotiate.
Over the next several months, in the presence of Godoy and al Ghazi, al Kassar negotiated an arms deal with the two DEA agents.*fn3 The negotiators discussed at length FARC's intent to use the weapons against Americans and U.S. assets.
When al Kassar left the room during a break in negotiations, al Ghazi advised the DEA agents how to negotiate effectively with al Kassar. At the end of March, 2007, when the parties had agreed to basic terms (including the sale of SAMs), Godoy took the DEA agents to an Internet cafw and helped them transfer a down payment (100,000) to a bank account controlled by al Kassar.
The next day (after confirming receipt of the down
payment), al Kassar again met with the DEA agents to
discuss details. Before the meeting, al Ghazi again counseled
the DEA agents on how best to secure the sale. At the
meeting-- again in the presence of Godoy and al Ghazi--al Kassar
gave the DEA agents schematics for the SAMs he was selling
and explained how he planned to smuggle the weapons into
Colombia through a cargo ship destined for Suriname (with
al Kassar, as usual, translating for al Ghazi).
In May 2007, al Kassar and Godoy facilitated a meeting between the DEA agents and the captain of the ship that would smggle the weapons. Before the meeting, the DEA 7 agents wired another payment ($135,000) to a bank account 8 controlled by al Kassar. Afterward, al Kassar and Godoy 9 visited arms factories in Bulgaria and Romania to secure the 10 weapons.
In June 2007, the DEA agents agreed to meet al
and Godoy in Bucharest to make final payment. Al
stayed in Spain, however, and sent Godoy and al Ghazi
pick up the money. Pursuant to valid arrest warrants and
coordination with the DEA, Romanian authorities arrested
Ghazi and Godoy in Bucharest. The same day,
authorities arrested al Kassar at the Madrid
Airport; he was carrying fake end-user certificates for
FARC weapons and documents confirming final arrangements
ship the weapons from Romania to Suriname. A search of
Kassar's mansion yielded documents establishing his
Godoy's participation in other arms deals and
confirming that al Kassar controlled the bank accounts into which
the DEA agents had wired money.
Godoy and al Ghazi were extradited here from Romania in October 2007. During the flight, al Ghazi agreed to waive 5 his Miranda rights and admitted to the DEA agents that: (1) 6 he knew al Kassar was selling weapons, including SAMs, to 7 FARC; (2) he knew that FARC was a terrorist organization, 8 which planned to use the weapons to kill Americans; and (3) 9 he facilitated the deal because he was promised a 125,000 10 commission. In June 2008, al Kassar was extradited here 11 from Spain.
12 Once in the United States, the defendants were indicted 13 on four counts:
14  Conspiracy to kill U.S. citizens in violation of 18 15 U.S.C. § 2332(b).
17  Conspiracy to kill U.S. officers and/or employees 18 in violation of 18 U.S.C. §§ 1114, 1117. 19 20  Conspiracy to acquire and export SAMs in violation 21 of 18 U.S.C. § 2332g.
 Conspiracy to provide material support to a known 24 terrorist organization in violation of 25 18 U.S.C. § 2339B.
27 Al Kassar and Godoy were also indicted on a fifth count: 28  Money laundering in violation of 18 U.S.C. § 1956.
1 The district court denied defendants' motion to dismiss the indictments for violation of due process. Al Kassar I, 3 582 F. Supp. 2d at 498. The district court likewise denied 4 their motions (after hearings) to admit classified 5 information related to prior and contemporaneous 6 interactions with Spanish intelligence agents, allegedly for 7 the benefit of the United States. United States v. Al 8 Kassar, 582 F. Supp. 2d 498, 500 (S.D.N.Y. 2008) ("Al Kassar 9 II"). The district court concluded that the proffered 10 classified information was irrelevant, needlessly confusing, 11 or inadmissible prior acts evidence. Fed. R. Evid. 402-405.
12 Al Ghazi's trial was severed when he was hospitalized a 13 week before the scheduled trial. Al Kassar and Godoy were 14 convicted by a jury on all five counts. Al Ghazi was tried 15 several months later and convicted of conspiring to kill 16 U.S. officials, to acquire and export SAMs, and to provide 17 material support to a known terrorist organization. Al 18 Ghazi was acquitted of conspiring to kill U.S. citizens. Al 19 Kassar and Godoy were sentenced in February 2009 to 30 years 20 and 25 years respectively. Al Ghazi was sentenced in July 21 2009 to 25 years.
1 The defendants timely appealed their convictions, but 2 do not contest the sentences.
On appeal, the defendants challenge their convictions on the following grounds:
[I] The government lacked jurisdiction to
prosecute because of an insufficient nexus
between their actions and the United States.
[II] The government's investigation constituted "outrageous conduct" in violation of their due process rights.
[III] The district court erred in denying
their motion to introduce exculpatory classified
[IV] The convictions under 18 U.S.C. § 2332g 20 (acquiring and exporting SAMs) must be 21 overturned because: the statute does not 22 criminalize conspiracy; the jury was 23 improperly instructed as to scienter; the 24 defendants' actions fall under the statute's 25 exception for authorized conduct; and there 26 was insufficient evidence of conspiracy.
[V] The convictions under 18 U.S.C. § 2339B 29 (aiding a known terrorist organization) must 30 be overturned because: the statute requires 31 that the aid be intended to support the 32 illegal activities of the terrorist 33 organization, or, in the alternative, the 34 statute violates the Fifth Amendment's Due 35 Process Clause by not requiring such intent. 37 Al Ghazi challenges his conviction on a sixth ground:
[VI] There was insufficient evidence he conspired 2 with al Kassar or Godoy to kill U.S. officers 3 and materially aid a ...