Federal Evidence Review

In material support of foreign terrorist organizations trial, an [armed fighter] mujahidin application form, statement suggesting that one defendant sponsored a mujahidin fighter to attend an Al- Qaeda training camp was improperly admitted as a co-conspirator statement as the trial judge failed to make the required findings under FRE 801(d)(2)(E) concerning the existence of the alleged conspiracy, in United States v. Al-Moayad, 545 F.3d 139 (2d Cir. Oct.2, 2008) (Nos. 05-4186-cr (L), 05-4838-cr (CON))

A growing number of cases involving alleged foreign terror conspiracies are entering the courts. These cases often have challenges no different than other conspiracy trials. While carefully prepared on both the prosecution and defense side, occasionally missteps are taken. Last year the Second Circuit considered the appeal by one alleged terrorist and ultimately agreed with the defendant that the trial court had admitted a co-conspirator statement improperly, although the error was harmless.

In the case, Defendants Al-Moayad and Zayed were prosecuted for 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’s terrorism investigation and asked to be paid millions of dollars. The government ultimately paid him about $100,000 for his services.

At trial, the government did not call the confidential informant to testify. Instead, the defense called him to establish its entrapment defense. During the government's rebuttal, to counter the entrapment defense, the government introduced “an application form for a[n armed fighter] mujahidin training camp” which “had been partially filled out in 1999 by an individual who called himself ‘Abu Jihad,’ and who listed ‘Sheikh Mohammed Al Moayad’ next to the question, ‘[w]ho recommended you, and how do you know him.’” Al-Moayad, 545 F.3d at 156 (citation omitted). The defense objected that the form contained inadmissible hearsay, was irrelevant and not authenticated. The trial court admitted the form without explaining the basis for the ruling. The jury convicted the defendants and the defendant appealed, contending in part that the admission of the mujahidin application form was error.

The Second Circuit concluded the trial court erred in admitting the mujahidin form without any limitation as substantive evidence, however, the error was harmless. The trial court failed to make the findings that the requirements under FRE 801(d)(2)(E) were met. In the Second Circuit, this consisted of a foundational showing of, and judicial findings regarding, three elements: “(a) that there was a conspiracy, (b) that its members included the declarant and the party against whom the statement is offered, and (c) that the statement was made during the course of and in furtherance of the conspiracy.” Al-Moayad, 545 F.3d 173.

The circuit then applied this test and found the trial court's actions deficient:

"In this case, the district court did not satisfy the requirements of Rule 801(d)(2)(E). The court made no findings, by a preponderance of the evidence or otherwise, about the existence of a conspiracy including Al-Moayad and the individual who filled out the mujahidin form ('Abu Jihad'), nor do we think the court could have done so based on the record before us. Contrary to the government's contention, the record fails to demonstrate Al-Moayad's 'longstanding participation in a conspiracy to provide material support to Al-Qaeda,' other than some indication that Al-Moayad had a relationship with Bin Laden sometime in the past. The form itself, given that it provides no information about Abu Jihad's relationship with Al-Moayad other than the fact that he wrote Al-Moayad's name as his recommender, is not competent proof of their joint involvement in a conspiracy. Indeed, we do not know if Al-Moayad even knew Abu Jihad, or was aware that Abu Jihad listed him on the form. The district court had virtually no basis for admitting the mujahidin form for its substance as a co-conspirator statement."

The error in admitting the form as co-conspirator testimony was subject to a harmless error analysis. According to the Circuit:

"Although the district court's admission of the mujahidin form was in error, we must conclude after applying the Kaplan factors that the error if considered in isolation was harmless. The second Kaplan factor, the prosecutor's conduct with respect to the improperly admitted evidence, weighs in favor of Al-Moayad; the government repeatedly mentioned the mujahidin form in its rebuttal summation and pointed to the form as evidence not only of Al-Moayad's alleged provision of support to Al-Qaeda, but also of his predisposition. However, the form was only one among several pieces of evidence that the government put forth as to Al-Moayad's predisposition, suggesting that the form was at least somewhat cumulative. ... Overall, the factors lead us to conclude that although erroneous, the district court's admission of the mujahidin form was ultimately harmless.