In trial involving the provision of material support to foreign terrorist organizations, convictions were vacated since error was not harmless, in United States v. Al-Moayad, __ F.3d __ (2d Cir. Oct.2, 2008) (Nos. 05-4186-cr (L), 05-4838-cr (CON))
A recent Second Circuit case illustrates three separate bases in which informant notes were inadmissible. While the issue arose in a case involving support to foreign terrorist organizations, the evidence issues considered can arise in other cases involving an informant and informant notes. The case highlights that under the right circumstances, there may be some limited purposes in which informant notes may be admitted.
Defendants Al-Moayad and Zayed were prosecuted for attempting and conspiring to provide material support to foreign terrorist organizations Hamas and Al-Qaeda, and attempting to provide material support to Hamas. The investigation was based on the assistance of confidential informant Al-Anss, a Yemeni national, who offered to assist the government on terrorism and asked to be paid. While he asked for millions of dollars, the government paid him about $100,000. The informant, who traveled to Yemen three times, ultimately introduced both defendants to another informant, named Saeed. In a series of meetings, they discussed the money Saeed planned to provide. In one meeting, Saeed asked “whether his money would go to Hamas, Al-Qaeda, or other groups.” Defendant Al-Moayad answered, “Hamas, Al-Qaeda, Massajins [prisoners], Mujahidins, and such. Anyone who we know of, who is in the Jihad field.” Al-Moayad, __ F.3d at __. During a final meeting in Germany, the defendants were arrested by German law enforcement officials.
At trial, the government did not call the confidential informant to testify. Instead, the defense called him in asserting its entrapment defense. In cross-examining the informant, the government moved to introduce his notes based on his meetings as prior consistent statements under FRE 801(d)(1)(B). The notes contained the following information:
“[Defendant] Al-Moayad was ‘the right hand’ to Sheikh Abdul Majid Al-Zindani; at some point in the past, Al-Moayad was ‘the main person choosing the volunteers’ to send to fight in the conflicts in Chechnya, Afghanistan, and Bosnia; during Al-Anssi’s first trip to Yemen, Al-Moayad provided him with information about foreign arms dealers; Al-Moayad asked Al-Anssi not to call him on the phone, and to refer only to medical treatment if he did so; Al-Moayad was aware while still in Yemen that Saeed intended to give a substantial sum of 1 money ($2 million) specifically to support the armed mujahidin; Al-Moayad visited and supported Bin Laden in Afghanistan; he knew young volunteers who were ready for training in jihad; and he gave $3.5 million to Palestine and $20 million to Al-Qaeda ‘during last few years and before the Sept. 11th 2001.’” Al-Moayad, __ F.3d at __.
The trial court overruled the defense hearsay objection and admitted the notes as substantive evidence. After the jury convicted the defendants, on appeal, the defendants challenged the admission of the informant’s notes as substantive evidence. <.p>
In reversing the convictions, the circuit agreed that the notes were inadmissible and the error was not harmless. In doing so, the circuit considered and rejected three bases to admit the notes as substantive evidence. First, the notes were inadmissible as a prior consistent statement under FRE 801(d)(1)(B) since the government failed to show they were made after the informant had a motive to fabricate. As the circuit explained, the informant “created the notes after a significant motive to fabricate arose, namely the large amount of money he expected and was paid to furnish information to the FBI. The government does not challenge the proposition that Al-Anssi had a motive to fabricate the notes when he created them.” Al-Moayad, __ F.3d at __.
Second, the circuit found unpersuasive the alternative argument of the government that the informant’s notes were admissible to rehabilitate his credibility. Al-Moayad, __ F.3d at __ (citing Phoenix Assocs. III v. Stone, 60 F.3d 95, 103 (2d Cir. 1995) (distinguishing “two permissible uses of prior consistent statements” including “to rehabilitate the credibility of a witness who has been impeached by a prior inconsistent statement” and as a prior consistent statement “offered for substantive purposes” under FRE 801(d)(1)(B)). The limited rehabilitative purpose did not apply since the informant was not impeached with his prior inconsistent statements. Al-Moayad, __ F.3d at __ n.23 (quoting United States v. Pierre, 781 F.2d 329, 333 (2d Cir. 1986) (“a prior consistent statement may be used for rehabilitation when the statement has a probative force bearing on credibility beyond merely showing repetition”)).
Finally, the circuit disagreed with the government that the notes were admitted to rebut a false impression during the defense examination. As the circuit noted, the “notes could potentially have been admissible to correct a false impression only if the notes were admitted not for their truth but for the limited purpose of rebuttal, and the jury was appropriately instructed. Here, the district court admitted the notes without limitation and in their entirety as substantive evidence. It was error to do so.” Al-Moayad, __ F.3d at __ (footnote omitted). The substantive admission of the notes elevated them to ‘the same status as Al-Anssi’s trial testimony, but were not subject to the same ‘devices for ensuring [the] accuracy’ of in-court testimony: the witness oath, the opportunity to be observed by the adverse party, and cross-6 examination.” Al-Moayad, __ F.3d at __ (citation omitted). The jury also received no guidance to consider the notes for a limited purpose.
The error in admitting the informant notes was not harmless. The government’s evidence was not overwhelming, and the notes provided substantive evidence for which there was no other evidence. For example, “the notes constituted the only support for Al-Anssi’s claim that Al-Moayad gave $3.5 million to Hamas, and the notes reinforced Al-Anssi’s claim that the four charity receipts actually represented donations to Hamas, a point that was not clearly established elsewhere in the government’s evidence.” Al-Moayad, __ F.3d at __. Additionally, the notes also constituted the “only source suggesting that Al-Moayad maintained close ties with Bin Laden and financially supported Al-Qaeda in the few years before the events of September 11, 2001.” Al-Moayad, __ F.3d at __. In sum, “The notes contained much of the government’s strongest, most direct evidence regarding Al-Moayad’s predisposition and significantly buttressed Al-Anssi’s trial testimony, which had been impeached by the defendants.” Al-Moayad, __ F.3d at __.
In vacating the convictions, the circuit also remanded the case “to the district court for further proceedings consistent with this opinion before a different district court judge.” Al-Moayad, __ F.3d at __. There was no further explanation concerning the decision to reassign the case.
While the case is instructive on illuminating the circumstances in which informant notes may be admissible, the case also included other errors which the circuit concluded required reversal. The applicability of FRE 403 will be considered in a blog posting appearing on Monday.
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