Federal Evidence Review

Evidence concerning a Tel Aviv suicide bombing, which was noted during a wedding ceremony one defendant attended, and evidence about an Al-Qaeda training camp was unfairly prejudicial under FRE 403, and deprived the defendants of a fair trial, in United States v. Al-Moayad, __ F.3d __ (2d Cir. Oct.2, 2008) (Nos. 05-4186-cr (L), 05-4838-cr (CON))

It is rare for an appellate court to overturn a trial court’s balancing on whether evidence is unfairly prejudicial under FRE 403. The Second Circuit recently vacated two convictions of two defendants for attempting and conspiring to provide material support to foreign terrorist organizations, setting aside as erroneous the trial court's determination that certain evidence was not unfairly prejudicial.

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. He offered to assist the government and asked to be paid 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.

On one trip to Yeman the informant videotaped a wedding which was hosted by defendant Al-Moayad. During the wedding, a reported representative of Hamas made a speech claiming that Hamas was involved in a Tel Aviv “operation,” or attack, the same day. The informant stated that defendant Al-Moayad requested that he show Saeed the video “to prove that this is a part of the effort to prepare the youth for El Jihad.” Al-Moayad, __ F.3d at __. The last witness in the government’s case in chief testified about a Tel Aviv suicide bombing caused by a Hamas suicide bomber the same day. He provided details about the bombing which killed his cousin. He described in graphic detail the unfolding events he observed, including “[a]mongst other things, glass, metal and shrapnel flying in all directions particularly towards the back of the bus from the center of the bus,” and then “an eerie silence for a few moments and then sirens, screaming, panic.” Al-Moayad, __ F.3d at __. The government was allowed to play a DVD news story of the bombing and introduce three photographs of the scene. The defense request for a limiting instruction “that there was no evidence or allegation that either defendant was involved in the bombing” was denied. The trial court proposed alternative language: “You have heard the testimony of a bus bombing, you will determine based on the evidence or lack of evidence who was responsible for that incident. You will also determine what that incident has to do or not to do with the allegations in the indictment.” Al-Moayad, __ F.3d at __. Defendant Al-Moayad withdrew the request after learning of the trial court’s alternative. The government also highlighted the testimony during its opening statement and closing argument.

A second FRE 403 evidence issue involved the rebuttal testimony of a cooperator, named Goba, who had previously pled guilty to providing material support to Al-Qaeda in September 2002 and had agreed to cooperate with the government. Goba attended an Al-Qaeda training camp in Afghanistan in 2001. He described “the camp layout, and 19 the type of training (weapons, tactics, explosives, topography) that he received there.” He told the jury that Bin Laden twice visited the camp and what transpired during the first visit. He noted Bin Laden’s speech in which he noted the “importance of unifying and performing jihad.” Al-Moayad, __ F.3d at __. When the defense objected to his testimony, the government proffered that he would testify about the form of Al-Qaeda and would not implicate defendant Al-Moayad. During this testimony, the government presented impages of Bin Laden and Al-Zawahiri which Goba commented on. On the second day of Goba’s testimony, the defense moved for a mistrial, which was denied. The trial court stated that it would “instruct the jury that the defendant will have to be judged guilty or not guilty based upon what is charged in the indictment.” Al-Moayad, __ F.3d at __. Goba testified about a 1995 rally he attended where he volunteered to protect a photo gallery which included “photos ‘of the Al Aqsa mosque, leaders of Hamas and pictures of suicide bombers.’” The jury saw videos of the rally. The jury convicted the defendants.

On appeal, the circuit vacated the convictions and remanded for a new trial based on these evidence errors that deprived the defendants of a fair trial. No evidence was presented that either defendant was connected with the Tel Aviv bus bombing. The circuit noted that the probative value of the bus bombing evidence was “significantly diminished,” in part because the defendant offered to stipulate that they knew about the violent acts of Hamas, providing “an adequate evidentiary alternative at trial” on this issue. Al-Moayad, __ F.3d at __. (citing Old Chief v. United States, 519 U.S. 172, 184 2 (1997) (noting “what counts as the Rule 403 ‘probative value’ of an item of evidence . . . may be calculated by comparing evidentiary alternatives”). The circuit acknowledged that the government may be “entitled to prove its case by evidence of its own choice.” Al-Moayad, __ F.3d at __ (quoting Old Chief, 519 U.S. at 186, 189 (noting the government may show “the natural sequence of narrative evidence” to address the concern that “[p]eople who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters”))] However, the government was not entitled to admit unrelated and tenuous evidence of the bus bombing. The circuit noted that “the government’s extended presentation of Black’s testimony, supplemented by photos and video, amounted to a blatant appeal to the jury’s emotions and prejudices.” Al-Moayad, __ F.3d at __ (footnote omitted)] The circuit added that even if the limited probative value of the evidence were admissible as the government proffered “to show that a bombing actually occurred, just as Siyam said it had – the court erred in allowing the testimony to continue after that fact was established.” Al-Moayad, __ F.3d at __. Finally, the trial court rejected a limiting instruction proposed by the defense, which would have mitigated the prejudicial impact. The circuit considered the alternative proposed by the trial court as a “vague, tendentious instruction.” When the defense withdrew the request for a limiting instruction, the jury was left no guidance in considering the suicide bombing evidence.

On the Goba testimony concerning Al-Qaeda, the circuit noted the absence of a trial court ruling “assess[ing] the probative value of the continuing narrative, or required the government to constrain the testimony to the scope of its proffer,” or reflecting a “conscientious assessment” of its prejudice analysis. As the circuit explained:

“Goba’s testimony about the camp, and particularly the government’s presentation of 19 images of Bin Laden and Al-Zawahiri, was highly inflammatory and irrelevant, and should not have been permitted by the district court. The government presented no evidence linking Goba to Al-Moayad, and yet his extensive testimony was admitted against Al-Moayad as part of the government’s rebuttal case. Even if Goba’s testimony had some value in authenticating the mujahidin form, we have no assurance that the court conscientiously balanced the probative value of the testimony against its prejudicial effect, given the court’s failure to explain. Nor do we think that, had the court performed that weighing analysis, it could have rationally concluded that the account of the events occurring at the training camp, including testimony about visits by Bin Laden and his associates, was admissible. Finally, as with Black’s testimony, the prejudicial effect of Goba’s statements was not mitigated by any limiting instruction to the jury.”

Al-Moayad, __ F.3d at __. The circuit concluded the error in admitting both the Black and Goba testimony was not harmless and was “far outweighed by its unfair prejudice” and affected the substantial rights of the defendants on the issue of predisposition on their entrapment defense. 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.

The Al-Moayad case highlights some useful reminders. The case underscores the importance of making an adequate evidence record for review on appeal. The case also demonsrates that the jury should be given appropriate limiting instructions to mitigate the prejudicial impact and guide the jury’s consideration of the evidence. The case also draws into question exactly how much of the evidence the government really needed to use to prove its case. A separate evidence issue regarding prior inconsistent statements in the case was also reviewed last week.