Federal Evidence Review

In racketeering, securities fraud and obstruction trial involving an FBI agent who passed law enforcement information to a co-defendant to benefit from stock trades, evidence concerning one defendant's “possible ties to the 9/11 terrorist attacks” was not unfairly prejudicial where curative instructions were given, the defense opened the door to the issue, and the trial court took extra precautions to limit the evidence, in United States v. Royer, 549 F.3d 886 (2d Cir. Dec. 17, 2008) (Nos. 06-4081-CR(LEAD), 06-5165(CON), 06-4087-CR(CON))

A recent Second Circuit case highlights the sensitive manner in which a trial court took measured steps to admit terrorism-related evidence.

In the case, defendants Elgindy and Royer were prosecuted for obtaining and trading on sensitive law enforcement information. Defendant Royer was a Special Agent of the Federal Bureau of Investigation (FBI) assigned to white collar crime matters. He obtained information about pending law enforcement investigations concerning companies and other matters and provided it to others who were able to take advantage on stock trades. At one point, defendant Royer inquired whether defendant Elgindy was under investigation. He learned that defendant “Elgindy was a subject of a government investigation in the Eastern District of New York into individuals who had made significant securities trades immediately prior to 9/11.” Royer, 549 F.3d at 892. Eventually the scheme was discovered and they were charged.

At trial, the government introduced some evidence of defendant “Elgindy’s possible ties to the 9/11 terrorist attacks.” Royer, 549 F.3d at 901. The trial court noted that it had curtailed the information more than it would have if the evidence did not involve 9/11. When one witness testified that defendant Royer “informed him that Elgindy was under investigation and that the topic of the investigation was ‘terrorism,’” the trial court instructed the jury that “[t]his case has nothing to do with terrorism. I want to make that point very stronagly to you. There are no such charges in this case . . . and you will not hear any evidence that Mr. Elgindy or anyone else was involved in or aided the events of September 11th. Please understand this.” Royer, 549 F.3d at 902. The defense objection that this evidence was unfairly prejudicial was denied. Both defendants were convicted. On appeal, the defendants challenged the admission of the post-9/11 investigation as unfairly prejudicial.

The circuit affirmed the admission of the evidence which it concluded was not unfairly prejudicial. As the circuit explained, defendant

“Royer’s illicit efforts to find out whether Elgindy was under investigation and his discovery, unlawfully conveyed to Elgindy, that Elgindy was suspected (wrongly, as it turned out) of having advance knowledge of the 9/11 attacks, was directly relevant to the obstruction and racketeering charges, among others.”

The trial court took steps to limit the evidence. However, other than “a handful of specific statements indicating that the investigation explored possible ties between Elgindy and 9/11 or terrorism,” the defense opened the door to the evidence through defendant Royer’s testimony “that at various times he had worked first to prevent and then investigate the 9/11 terrorist attacks.” Royer, 549 F.3d at 902. The trial court allowed an FBI special agent as a rebuttal witness to respond to “Royer’s claim that he had possessed information that could have led to the interception of the 9/11 hijackers if only his superiors at the FBI had heeded his urging to act on it.” Royer, 549 F.3d at 902.

The circuit noted that the trial court had taken a measured approach as it “carefully weighed the probative value of the 9/11-related evidence the Government wished to offer, excluded that evidence that was more potentially prejudicial than probative (such as references to Al Qaeda), issued limiting instructions to the jury on several occasions, and continued to keep tight control over the introduction of such evidence even after defendant Royer’s testimony explicitly addressed the topic of 9/11.” Royer, 549 F.3d at 903. Finally, defendant Elgindy was acquitted of the obstruction of justice charges, which suggested that the jury was able to evaluate the evidence based on the measured steps taken by the trial court.

In contrast to the result in Royer, the Second Circuit recently vacated convictions based on terrorism evidence which was unfairly prejudicial. See In Terrorism Supporters' Trial, Convictions Vacated Due To The Admission Of Unfairly Prejudicial Evidence. As these cases show, terrorism evidence must be handled with special care due to its potential for prejudice. The admissibility of terrorism-related evidence will turn on the limits placed by the trial court, any curative instructions that are given, and whether the defense opens the door to the subject.