Published by The Lawfare Institute
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Published by The Lawfare Institute
The Eleventh Circuit has affirmed the convictions of several members of the group referred to in the media variously as the “Miami 7,” the “Liberty City 7,” or the “Seas of David.” The men were convicted of (i) conspiring to provide material support to al Qaeda (in the form of themselves as personnel); (ii) conspiring to provide material support (again in the form of themselves as personnel) to facilitate a violation of explosives-related statutes; and (iii) concealing the nature of their material support. Some of the men were also convicted of plotting to attack the Sears Tower in Chicago and an FBI building, and one of the men also was convicted of conspiring to levy war against the United States. You may recall that this came only after two prior trials resulted hung juries, and that much of the media coverage focused on whether the group was dangerous or instead had been made to look so by undercover agents. The Eleventh Circuit in yesterday’s decision – United States v. Augustin – addressed an array of issues. Highlights include: * Charges under the material support statutes (2339A and 2339B) are not subject to the Treason Clause because the elements of those offenses differ from a charge of treason. * The evidence was sufficient to support the conclusion that the defendants conspired to act under al Qaeda’s direction and control, rather than to act independently. * The opinion is somewhat unclear regarding the defendants’ argument that taking photographs of federal buildings from public viewpoints cannot constitute material support. On one hand, the opinion clearly rejects the argument that such activity implicates the language in Holder v. HLP in which the Supreme Court discussed whether speech imparted specialized knowledge. On the other hand, the panel went on to focus on the defendants’ participation in an al Qaeda oath ceremony as well as their acts of photography, rather than just saying that the photography was itself an act of material support. * It does not matter if a person takes an oath to support al Qaeda based on financial motivations rather than ideological affinity. * It is not clear whether the definition of “personnel” contained in 18 USC 2339B(h) apply as well to a material support charge based on “personnel” under 18 USC 2339A, though that turned out not to matter in this case since the evidence sufficed to meet the direction-and-control standard. * On the overall strength of the evidence and the fact that there were two prior hung juries: “We recognize that the evidence supporting Augustin's, Phanor's, and Augustine's convictions on both Count 1 and Count 2 is far from overwhelming. Indeed, two juries failed to convict on these counts. But those juries also failed to acquit. Ultimately, with the benefit of three months of testimony and over five days of deliberation, the third jury arrived at a verdict, distinguishing between the various defendants and various counts. We cannot say that the jury was unreasonable in concluding that the government carried its burden of proving beyond a reasonable doubt that Augustin, Phanor, and Augustine violated § 2339A and § 2339B as charged.” * Applying a plain error standard, the panel rejected the argument that the FBI’s role in the scheme amounted to outrageous government conduct in violation of the Due Process Clause. * It was permissible for one of the investigating agents to testify about how various statements by a defendant had impacted the course of the investigation; this did not constitute improper testimony about the defendant’s state of mind, though the court called this a “very fine line.” The testimony also was relevant in that it was probative of why the investigation unfolded as it did, an issue that had become material because of the entrapment issue. There were plenty of other issues, including an interesting discussion of the law relevant to removal of a juror.
Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
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