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United States v. Mostafa Kamel Mostafa

United States District Court, S.D. New York

April 15, 2014

MOSTAFA KAMEL MOSTAFA a/k/a " Abu Hamza al-Masri," Defendant

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For Mustafa Kamel Mustafa, also known as Mustapha Kamel, also known as Mostafa Kamel Mostafa, also known as Abu Hamza, also known as Abu Hamza al-Masri, Defendant: Jeremy Schneider, Rothman, Schneider, Soloway & Stern, LLP, New York, NY; Joshua Lewis Dratel, Law Offices of Joshua L. Dratel, P.C., New York, NY; Sabrina P. Shroff, Federal Defenders of New York Inc. (NYC), New York, NY.

For USA, Plaintiff: Eric B. Bruce, LEAD ATTORNEY, U.S. Attorney, New York, NY; Michael E. Farbiarz, LEAD ATTORNEY, Edward Young Kyu Kim, Ian Patrick McGinley, John Peter Cronan, Nicholas James Lewin, U.S. Attorney's Office, SDNY (St Andw's), New York, NY.

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KATHERINE B. FORREST, United States District Judge.

Defendant Mostafa Kamel Mostafa, a/k/a Abu Hamza al-Masri, a/k/a Abu Hamza, is charged in an eleven-count Indictment with various crimes, including a hostage-taking conspiracy, hostage taking, conspiring to provide material support to terrorists and terrorist organizations, and providing such support, including establishing a jihad training camp in Bly, Oregon and facilitating violent jihad in Afghanistan. Opening statements are scheduled to occur on April 17, 2014.

The Court assumes familiarity with the prior proceedings and factual background of this matter as set forth in the Indictment and prior opinions of the Court. (ECF Nos. 1, 199, 216, 305.) Before the Court are various objections by the defendant to certain evidence that the Government intends to offer at trial. The objections to proposed evidence are so extensive that certain rulings must be made in advance of opening statements in order to allow the parties to appropriately adjust trial strategy.[1] The Court held argument on the evidence to which the defendant has objected during two lengthy hearings on April 9 and 10, 2014. The Court also invited the parties to make any additional legal submissions supportive of their positions. (Hr'g Tr., Apr. 8, 2014; Hr'g Tr., Apr. 9, 2014.)

The proposed evidence at issue generally shares many of the same characteristics: they are audio- and videotapes, photographs, or documentary evidence that does not explicitly refer to the charged conduct; whether they implicitly do so, and whether that is even necessary, is discussed below. In general, the proposed evidence relates to potential acts of violence towards non-Muslims through training for or waging violent jihad and justifying jihad. Certain evidence also refers to the defendant's views regarding Osama bin Laden, the events of September 11, 2001, and the bombing of the U.S.S. Cole. The defendant argues that this evidence is not relevant to the offense conduct, and that it is inflammatory and unduly prejudicial.


A. Relevant Evidence

Rule 401 defines relevant evidence as that which " has any tendency to make a fact more or less probable than it would be without the evidence," so long as " the fact is of consequence in determining the action." Fed.R.Evid. 401; see also Old Chief v. United States, 519 U.S. 172, 178, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). " The fact to which the evidence is directed need not be in dispute." Id. at 650 (citing Fed.R.Evid. 701 advisory committee's note).

To be relevant, evidence need not constitute conclusive proof of a fact in issue, but only have " 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ' McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (quoting New Jersey v. T.L.O., 469 U.S. 325, 345, 105 S.Ct. 733, 83 L.Ed.2d 720

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(1985)); see also United States v. Abu-Jihaad, 630 F.3d 102, 132 (2d Cir. 2010).

In Abu-Jihaad, the defendant was charged, inter alia, with having communicated national defense information to unauthorized persons and providing material support to terrorists. 630 F.3d at 108, 117. In 2001, the defendant used his position with the Navy to convey information regarding the position and movements of Navy ships destined for the Persian Gulf. Id. at 109. The authorities first discovered the leakage in December 2003, in connection with an individual connected to Azzam Publications, an organization that maintained websites that glorified martyrdom in the name of jihad and the violent exploits of the mujahideen. Id. An Azzam employee was linked to the creation of a document (the " Battlegroup Document" ) using information that the defendant had transmitted either directly or indirectly to Azzam. To prove that the defendant had transmitted the information in the Battlegroup Document (or the document itself), the Government relied on evidence showing the defendant's access to such information, his communications with Azzam expressing support for jihad, and a recorded statement in 2006 implicitly admitting to having disclosed national security information while in the Navy. Id. at 112. In recorded conversations between the defendant and a friend occurring in 2006--nearly five years after the alleged transmission of information to Azzam--the defendant made statements demonstrating familiarity with Azzam and its websites. Id. at 115.

The Second Circuit affirmed the district court's admission of the defendant's 2006 recorded statements regarding Azzam as relevant to the charged conduct occurring five years prior. Id. at 132. The Court stated that the recorded conversations demonstrated the defendant's familiarity with Azzam's websites and with Azzam as an organization sympathetic to jihad. Id. at 131. The Court also found that the defendant's statements confirmed the defendant's own communication with Azzam, specifically in an email discussing the bombing of the U.S.S. Cole in Yemen. Id. at 131. The Court found that, although these conversations did not specifically mention the Battlegroup Document and took place almost five years after the charged crime, " they were undoubtedly relevant to a jury's assessment of [the defendant's] guilt." Id. at 132.

The defendant's communications " were relevant because they linked him to the recipient [Azzam] of the Battlegroup Document" and made it more probable that he was the source of the unauthorized disclosure of the information. While the defendant disputed that the recorded conversation connected him to the charged crime by offering evidence that the Navy's transit plan information was more widely available than the Navy maintained, the Court determined that this evidence went only to the weight and not the admissibility of the recorded conversations. Id. at 132; see also United States v. Schultz, 333 F.3d 393, 416 (2d Cir. 2003) (" [F]actors which make evidence less than conclusive affect only weight, not admissibility." ). In addition, the Court found that the defendant's conversations in 2006, which displayed an obsession with secrecy, were relevant to his consciousness of guilt and to explaining why there was no evidence on the Azzam websites about the transmission of the Battlegroup Document. Abu-Jihaad, 630 F.3d at 132.

In United States v. Rahman, 189 F.3d 88, 118 (2d Cir. 1999), the Second Circuit affirmed the conviction of a Muslim cleric charged with, inter alia, seditious conspiracy, soliciting the murder of Egyptian President Hosni Mubarak, soliciting an attack on American military installations,

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and a bombing conspiracy. Id. at 103-04.[2] One object of the conspiracy was the bombing of the World Trade Center, which occurred in 1993. Id. at 107-08. The cleric, Rahman, had preached violent jihad; he had instructed his followers to " do jihad with the sword, with the cannon, with grenades, with the missile . . . against God's enemies." Id. at 104. His role in the conspiracy was allegedly overall supervision and direction of the membership. Id.[3] " According to his speeches and writings, Abdel Rahman perceives the United States as the primary oppressor of Muslims worldwide, active in assisting Israel to gain power in the Middle East, and largely under the control of the Jewish lobby." Id.

Rahman objected to the admissibility of his speeches, writings, and preachings that did not themselves constitute the crimes of solicitation or conspiracy. Id. at 117-18. The Second Circuit found that the district court had acted properly in admitting such materials, because they made motive for the crimes charged more probable. " The Government was free to demonstrate Abdel Rahman's resentment and hostility to the United States in order to show his motive for soliciting and procuring illegal attacks against the United States . . . ." Id. at 118.

In United States v. Stuckey, in an appeal from the defendant's conviction for murdering a would-be informant, the Sixth Circuit affirmed the district court's admission of rap lyrics discussing murdering a " snitch." 253 F.App'x 468, 482 (6th Cir. 2007). In finding relevance, the district court stated, " You can certainly not say when somebody writes about killing snitches, that it doesn't make the fact that they may have killed a snitch more probable." Id.; see also United States v. Foster, 939 F.2d 445, 455 (7th Cir. 1991) (affirming the district court's admission of a poem that used code words used in the drug trade as relevant to showing knowledge of those words as used in the drug trade).

Rule 402 provides that all relevant evidence is admissible, except as otherwise provided by the Constitution, by Act of Congress, or by applicable rule. Fed.R.Evid. 402; see also United States v. Abel, 469 U.S. 45, 51, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Rule 403 and the rules relating to the exclusion of hearsay are among the exceptions anticipated by Rule 402. See, e.g., Old Chief, 519 U.S. at 180.

B." Other Act" Evidence

" It is well established that evidence of uncharged criminal activity is not considered other crimes evidence under Fed.R.Evid. 404(b) if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined

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with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial." United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997) (alterations and internal quotation marks omitted); United States v. Kassir, No. 04 Cr. 356 (JFK), 2009 WL 976821, at *2 (S.D.N.Y. Apr. 9, 2009), aff'd, United States v. Mustafa, 406 F.App'x 526 (2d Cir. 2011). Such evidence is direct evidence of a crime. See Kassir, 2009 WL 976821, at *2. A Rule 404(b) analysis is, however, prudent where it is not manifestly clear that the evidence in question is proof of the charged crime. Id.

Rule 404(b) provides:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. . . .

Fed. R. Evid. 404(b). The Supreme Court has stated, " Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct." United States v. Huddleston, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988).

The Second Circuit evaluates 404(b) evidence under an inclusionary approach that allows evidence for any purpose other than to show a defendant's criminal propensity. United States v. McCallum, 584 F.3d 471, 475-76 (2d Cir. 2009) (finding that the district court's admission of the defendant's prior drug convictions, offered to show his intent to deal drugs and his knowledge of drug dealing, was error because the district court had failed to conduct a Rule 403 analysis; the Second Circuit stated, " evidence of prior convictions merits particularly searching, conscientious scrutiny," because such evidence can lead to " generalized reasoning about a defendant's criminal propensity" ); United States v. Paulino, 445 F.3d 211, 221-23 (2d Cir. 2006); United States v. Garcia, 291 F.3d 127, 136, 138-39 (2d Cir. 2002) (finding the district court abused its discretion in admitting evidence of a 12-year-old prior drug conviction whose only proffered similarity was that it involved cocaine). Courts may therefore admit evidence of other acts by the defendant if the evidence is relevant to an issue at trial other than the defendant's character and if the risk of unfair prejudice does not substantially outweigh the probative value of the evidence. United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998); see also Garcia, 291 F.3d at 136.

This inclusionary approach does not invite the Government " to offer, carte blanche, any prior acts of the defendant in the same category of crime." McCallum, 584 F.3d at 475 (quoting Garcia, 291 F.3d at 137).

In considering the admissibility of evidence pursuant to Rule 404(b), a court must consider the following:

o Is the evidence offered for a proper purpose--that is, does it go to something other than the defendant's character or general criminal propensity?
o Is the evidence relevant?
o Does the probative value of the evidence substantially outweigh the danger of unfair prejudice?

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o Has the court administered an appropriate limiting instruction?

Garcia, 291 F.3d at 136.

Among the " proper purposes" for presenting evidence of extrinsic acts are knowledge and intent. See McCallum, 584 F.3d at 475; United States v. Teague, 93 F.3d 81, 84 (2d Cir. 1996); Hynes v. Coughlin, 79 F.3d 285, 290-93 (2d Cir. 1996) (acknowledging that knowledge and intent may be proper purposes, but reversing the district court decision, because intent was not an issue before the trial court); United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987) (" Where intent to commit the crime charged is clearly at issue, evidence of prior similar acts may be introduced to prove that intent." ). The Second Circuit has approved the use of such evidence where a defendant does not contest that he was present during the commission of a crime but denies that he himself engaged in any wrongdoing. United States v. Colon, 880 F.2d 650, 659-60 (2d Cir. 1989) (collecting cases); see also United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993) (" Where a defendant claims that his conduct has an innocent explanation, prior act evidence is generally admissible to prove that the defendant acted with the state of mind necessary to commit the offense charged." ).

Another " legitimate purpose for presenting evidence of extrinsic acts is to explain how a criminal enterprise developed; this sort of proof furnishes admissible background information in a conspiracy case" and can assist the jury in understanding the relationship of trust between the coconspirators. United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996); see also United States v. Rosa, 11 F.3d 315, 334 (2d Cir. 1993).

Completing the story of the crimes is also a legitimate use of prior act evidence. United States v. Williams, 585 F.3d 703, 707 (2d Cir. 2009) (citing United States v. Reifler, 446 F.3d 65, 91-92 (2d Cir. 2006)).

Once the Government has proffered a proper purpose for " other act" evidence, the Court must then determine whether the other act is in fact probative of the crimes charged. In this regard, the Government must identify the similarity or connection between the act at issue and an element of the crime charged. McCallum, 584 F.3d at 475; United States v. Brand, 467 F.3d 179, 197 (2d Cir. 2006); United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992); Foster, 939 F.2d at 455. If the Government cannot identify some similarity or connection between the other acts and charged conduct, then evidence of such other acts cannot be probative of knowledge and intent. Garcia, 291 F.3d at 137-38; United States v. Tubol, 191 F.3d at 96 (finding that the admission of a prior act was error where Government failed to show any similarity between a hoax bomb and an Israeli bomb).

The similarity or connection between the charged crime and the prior event goes to the question of relevance. To be relevant, the other act must be sufficiently similar to the conduct at issue to permit the jury reasonably to draw an inference from the act that the state of mind of the actor is as the proponent of the evidence asserts. United States v. Curley, 639 F.3d 50, 57 (2d Cir. 2011). The court abuses its discretion if the " chain of inferences" necessary to connect the " other act" evidence with the charged crime is " unduly long." Id. (affirming a conviction involving domestic abuse after finding that four prior acts of abuse were ...

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