United States v. El Elsheikh

103 F.4th 1006

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 7, 2024
• Docket: 22-4496
• Status: Published

Opinion

USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 1 of 36

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4496

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

EL SHAFEE ELSHEIKH,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:20-cr-00239-TSE-2)

Argued: March 22, 2024 Decided: June 7, 2024

Before AGEE, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Affirmed by published per curiam opinion.

ARGUED: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Aidan Taft Grano-Mickelsen, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Kristen M. Leddy, Assistant Federal Public Defender, Aaron D. Moss, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Alicia Cook, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jessica D. Aber, United States Attorney, Richmond, Virginia, Raj Parekh, Assistant United States Attorney, John T. Gibbs, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 2 of 36

PER CURIAM:

El Shafee Elsheikh appeals his convictions for offenses arising from his role in a

terrorist hostage-taking scheme undertaken to support the Islamic State of Iraq and al-Sham

(ISIS). 1 Each issue he raises on appeal challenges the admissibility of certain evidence

against him at trial. For the reasons set forth below, we affirm Elsheikh’s convictions and

sentences.

I.

We will discuss the circumstances surrounding the specific categories of evidence

Elsheikh challenges in the context of analyzing those issues, but begin with a brief

overview of the evidence adduced at trial. In 2012, Elsheikh, who was then a citizen of the

United Kingdom, traveled to Syria where he subsequently joined ISIS. Over a three-year

period, Elsheikh and others—including co-defendant Alexanda Amon Kotey and

Mohammad Emwazi (deceased)—captured and held hostage United States, United

Kingdom, and other foreign nationals. Some hostages were released; others were

summarily executed and their deaths subsequently featured in ISIS propaganda materials.

The hostages nicknamed their principal captors “the Beatles” because the men spoke

English with British accents. Emwazi appeared to be the leader, with Elsheikh and Kotey

assisting him. Throughout their scheme, the Beatles took measures to avoid being

1 “In one form or another, ISIS has been designated a Foreign Terrorist Organization since 2004; it has also been known as the Islamic State of Iraq and the Levant, al Qaeda in Iraq, and the al-Zarqawi Network.” Twitter, Inc. v. Taamneh, 598 U.S. 471, 478 n.1 (2023). 2 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 3 of 36

identified, such as by wearing balaclavas and gloves and ordering hostages to face or look

away from their captors. The Beatles gained international notoriety for their brutal

treatment of hostages, which included waterboarding, forced boxing matches between male

hostages, and beatings. Their activities garnered significant international attention in 2014

when ISIS published propaganda videos depicting four separate occasions in which

Emwazi castigates the United States and its allies before beheading a male hostage. In

another video, Emwazi made similar comments while standing over a fifth male hostage

who had already been decapitated. Throughout their endeavors, the Beatles used proof-of-

life recordings and execution videos to exhort the hostages’ family members and

governments to meet certain demands such as paying ransom fees or undertaking certain

foreign-policy actions.

The Beatles’ hostages generally consisted of journalists and aid workers on

assignment in the region. They were held at various locations in Syria. Four of the hostages

were United States citizens. James Wright Foley, a journalist, was kidnapped in November

2012 and held hostage until his beheading in August 2014. Steven Joel Sotloff, a journalist,

was kidnapped in August 2013 and beheaded around September 2014. Peter Edward

Kassig, an aid worker, was kidnapped in October 2013 and beheaded in November 2014.

Kaylan Jean Mueller, an aid worker, was kidnapped in August 2013 and was killed around

February 2015, after the Beatles had transferred her to other ISIS members.

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With time, ISIS began losing ground in Syria, and in January 2018, the Syrian

Democratic Forces (SDF), a Kurdish militia, captured Elsheikh and Kotey as they were

attempting to flee across the Syrian border into Turkey. 2

The SDF relied on assistance from United States personnel in performing a

biometric enrollment process for its detainees. As part of that process, Elsheikh and Kotey

were asked several questions, photographed, and fingerprinted. At that time, both Elsheikh

and Kotey provided false names and nationalities. But when their fingerprints were entered

into a database, Elsheikh and Kotey’s true identities became known. When confronted with

those biometric matches, both men admitted who they really were.

Elsheikh and Kotey remained in SDF custody for about a year. Early in that

detention, United States Department of Defense (DOD) investigators conducted

“intelligence gathering” interviews with Elsheikh and Kotey, all without the benefit of

Miranda 3 warnings. Several weeks after the DOD interviews ended, two individuals

identifying themselves as special agents with the United States Federal Bureau of

Investigation (FBI) informed Elsheikh and Kotey that they wanted to interrogate them for

law-enforcement purposes and that, unlike any statements the men had previously made,

these statements could be used against them in a future criminal prosecution. Kotey refused

to answer any questions, but Elsheikh selectively answered questions. During their SDF

2 In late 2015, Emwazi was killed in a United States drone strike. 3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 5 of 36

detention, Elsheikh and Kotey also participated in multiple media interviews, sometimes

together and sometimes separately.

In October 2019, Elsheikh and Kotey were transferred to the custody of the United

States (the Government), and they were held abroad for approximately one more year.

During that time, the Government negotiated with the United Kingdom over the terms of

its turning over evidence to assist with prosecuting the men in the United States and,

specifically, whether they might face a sentence of death. 4 Those diplomatic negotiations

resolved after the Government promised not to seek the death penalty.

In October 2020, a federal grand jury indicted Elsheikh and Kotey on eight counts:

conspiracy to commit hostage taking, resulting in death, in violation of 18 U.S.C. § 1203;

four counts of hostage taking resulting in death, in violation of 18 U.S.C. §§ 1203 and 2,

for the deaths of Foley, Sotloff, Kassig, and Mueller; conspiracy to murder United States

citizens outside of the United States (the same four named citizens), in violation of 18

U.S.C. § 2332(b)(2); conspiracy to provide material support or resources to terrorists,

namely, to carry out the hostage taking and murders of the four named United States

citizens as well as “British and Japanese nationals,” in violation of 18 U.S.C. § 2339A; and

conspiracy to provide material support or resources to a designated terrorist organization

(ISIS), resulting in death, in violation of 18 U.S.C. § 2339B.

Kotey pleaded guilty, but Elsheikh exercised his right to a jury trial. The

Government’s case against Elsheikh is the sole focus of this appeal. During the two-week

4 Elsheikh and Kotey were both British citizens, but the United Kingdom stripped their citizenship before their prosecution in the United States. 5 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 6 of 36

trial, the Government presented extensive evidence proving that Elsheikh was one of the

Beatles and, more to the point, that he had participated in the charged conspiracies and

hostage-taking-and-killing endeavors in support of ISIS. Elsheikh’s defense did not contest

the underlying criminal conduct of the Beatles, but rather challenged the Government’s

proof identifying him as a participant in it.

The jury found Elsheikh guilty on all counts, and the district court sentenced him to

eight terms of life imprisonment.

Elsheikh noted a timely appeal, and this Court has jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a).

II.

On appeal, Elsheikh argues the district court committed reversible error in

permitting the Government to introduce evidence related to five categories of evidence.

First, he contends un-Mirandized false identity statements that he made upon his capture

in Syria were inadmissible. Second, Elsheikh asserts that even though he had been provided

with a Miranda-style Advice of Rights form before making certain statements to FBI

agents while in SDF custody, those statements were nonetheless inadmissible because they

were tainted by earlier, un-Mirandized intelligence-gathering interviews conducted by the

DOD. Third, he maintains that 2019 media interviews were improperly admitted following

the district court’s clearly erroneous factual finding that those statements were not the

product of abuse and coercion by SDF guards. Fourth, Elsheikh asserts the district court

should not have permitted the Government to introduce hearsay statements made by

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“unavailable” hostages under the forfeiture-by-wrongdoing exception. Lastly, he claims

the district court should have limited one witness’s testimony to the time in which that

witness and Mueller were held captive together. 5

The Government responds in several ways. On the merits, it asserts that each

category of evidence was properly admitted. For some of the challenged evidence, the

Government also asserts that Elsheikh has failed to properly preserve the challenge by

either failing to object to its admission in the district court or not adequately developing

his argument in his opening brief. And for much of the challenged evidence, the

Government posits that any error was ultimately harmless and thus would not warrant

reversal.

Our standard of review is generally consistent across the various types of challenges

that Elsheikh lodges here. “When reviewing the denial of a motion to suppress, [the Court]

review[s] the factual findings for clear error and the district court’s legal determinations de

novo.” United States v. Khweis, 971 F.3d 453, 459 (4th Cir. 2020) (cleaned up). Similarly,

we review a district court’s evidentiary rulings for abuse of discretion and a court abuses

its discretion when it is either “guided by erroneous legal principles” or it made its decision

5 In his opening brief, Elsheikh also identified as an issue the wrongful admission of documents outlining ISIS’s support for enslaving foreign women that had been recovered from a residence where Mueller and a trial witness had been held. But the argument section of his opening brief does not develop any argument regarding the admissibility of this evidence. Accordingly, we conclude that he has not adequately briefed the issue of the admissibility of the ISIS slavery documents and has thus waived appellate review of it. Compare Opening Br. 43–44, with Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (recognizing that an appellant fails to develop an argument consistent with Federal Rule of Appellate Procedure 28(a)(9) when the opening brief merely “takes a passing shot at the issue”). 7 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 8 of 36

based “upon a clearly erroneous factual finding.” United States v. Johnson, 617 F.3d 286,

292 (4th Cir. 2010) (cleaned up). And even in the event of error, we will not reverse if that

error was harmless, which we determine by applying the standard for either constitutional

or non-constitutional error, depending on the nature of the underlying argument to exclude

the evidence. United States v. Ferguson, 752 F.3d 613, 618 (4th Cir. 2014). “Constitutional

errors must be found harmless beyond a reasonable doubt, whereas reversal of a non-

constitutional error requires lesser proof.” Id.

A. False Statements About Identity

Shortly after Elsheikh was captured by the SDF, DOD analysts participated in his

biometric processing, a standard procedure for all detainees. In addition to being

photographed and fingerprinted, detainees were asked to state their name, place of birth,

and related biographical information. They were also asked basic questions about the

circumstances surrounding their capture.

As noted earlier, Elsheikh lied when answering some of these initial questions. He

responded in Arabic, saying that his name was “Suhayb Abdullah Jasim al-Salih,” that he

was from Yemen, and that he did not speak English. He stated that he had been captured

with a group of other individuals en route to Turkey, and although he admitted that Kotey

was captured at the same time, he provided a different name for Kotey (the same false

name that Kotey provided when asked). The falsity of these responses came to light after

the men’s fingerprints were processed.

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Before trial, and over Elsheikh’s objections, the Government moved in limine to

establish the admissibility of evidence relating to his and Kotey’s false responses to those

biometric-processing questions.

The district court granted the Government’s motion, holding that the routine

booking exception to Miranda applied to the circumstances presented. United States v.

Elsheikh, 578 F. Supp. 3d 752, 778–80 (E.D. Va. 2022). This exception derives from the

Supreme Court’s articulation of what constitutes a “custodial interrogation” in which

Miranda warnings are required. Specifically, the Court has defined “interrogation” to

encompass “any words or actions on the part of the police (other than those normally

attendant to arrest and custody) that the police know are reasonably likely to elicit an

incriminating response from the suspect.” Pennsylvania v. Muniz, 496 U.S. 582, 600–01

(1990) (plurality opinion) (emphasis added). The emphasized language highlights a well-

recognized but relatively little-developed exception to Miranda “for routine booking

questions securing ‘biographical data necessary to complete booking or pretrial services.’”

United States v. D’Anjou, 16 F.3d 604, 608 (4th Cir. 1994) (quoting Muniz, 496 U.S. at

601)). In the district court’s view, the routine booking exception applied to Elsheikh’s false

identity responses because they were made in a “closely analogous” context and the

questions served the same administrative goals. Elsheikh, 578 F. Supp. 3d at 779.

On appeal, Elsheikh reiterates his argument that admission of this evidence was

inadmissible because the wartime locale is not analogous to a routine domestic police

booking. In addition, he contends that, in this particular case, correctly answering questions

about his identity would have provided potentially inculpatory information—that he was

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an individual believed to be one of the Beatles. For both reasons, Elsheikh argues that the

routine booking exception did not apply and, since he responded to the questions without

the benefit of Miranda warnings, his answers should have been suppressed.

Having reviewed the record, we conclude that even if we assumed that the routine

booking exception did not apply for any reason, any error in the admission of Elsheikh’s

responses would be harmless. “In assessing whether a constitutional error was harmless,

we determine whether the admission of the statement[s] at issue was harmless beyond a

reasonable doubt, such that it is clear that a rational fact finder would have found the

defendant guilty absent the error.” United States v. Watson, 703 F.3d 684, 698 (4th Cir.

2013) (cleaned up). “The test . . . is not whether laying aside the erroneously admitted

evidence there was other evidence sufficient to convict beyond a reasonable doubt . . . ,

but, more stringently, whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.” Thompson v. Leeke, 756 F.2d

314, 316 (4th Cir. 1985) (cleaned up). In Arizona v. Fulminante, 499 U.S. 279 (1991), the

Supreme Court “identified three considerations in finding whether admissions of

statements given by a defendant in violation of the Fifth Amendment would survive

harmless error: (1) the importance of the statement to the government’s case; (2) the impact

on credibility of other evidence; and (3) the admission of prejudicial evidence based solely

on the admission of the statement,” United States v. Giddins, 858 F.3d 870, 885–86 (4th

Cir. 2017). The Government bears the burden of showing “that the admission of the

[defendant’s statements] did not contribute to [his] conviction.” Fulminante, 499 U.S. at

296.

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The Government has met its burden here. Although the evidence of Elsheikh’s false

identity statements provided some evidence probative of Elsheikh’s consciousness of guilt,

it was not a significant part of the Government’s case relevant to that issue or any other

matter leading to his convictions. The challenged trial testimony involved less than ten

pages of trial transcript out of thousands. Moreover, the evidence was freestanding,

meaning that it did not allow for the introduction of any other evidence in the case, nor did

it buttress or undermine any other evidence. Most significant to our determination, the

admission of this evidence was cumulative of other direct and circumstantial evidence

establishing Elsheikh’s guilt, which included extensive testimonial and documentary

evidence as well as his own admissions to his interactions with Emwazi, Kotey, and ISIS

hostages. On this record, we can readily conclude that “it is clear beyond a reasonable

doubt that the jury would have returned a guilty verdict absent [any] error.” United States

v. Camacho, 955 F.2d 950, 955 (4th Cir. 1992). Thus, even if admission of this evidence

was erroneous, any error was harmless and does not require reversal and remand.

B. Statements to FBI Agents

To better understand the concerns surrounding the admissibility of Elsheikh’s post-

Miranda warnings statements to FBI agents, we begin with a brief overview of the relevant

law. The Supreme Court held in Miranda that, as a general matter, “certain warnings must

be given before a suspect’s statement made during custodial interrogation could be

admitted in evidence.” Dickerson v. United States, 530 U.S. 428, 431 (2000); see also

Oregon v. Elstad, 470 U.S. 298, 317 (1985) (“When police ask questions of a suspect in

custody without administering the required warnings, Miranda dictates that the answers

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received be presumed compelled and that they be excluded from evidence at trial in the

[prosecution’s] case in chief.”). The “administration of Miranda warnings to a suspect who

has given a voluntary but unwarned statement ordinarily should suffice to remove the

conditions that precluded admission of the [pre-Miranda] statement.” Elstad, 470 U.S. at

314. Thus, the admissibility of the individual’s post-Miranda statements turns on whether

“the surrounding circumstances and the entire course of police conduct with respect to the

suspect” demonstrates that they were “voluntarily made.” Id. at 318.

In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court held that law

enforcement intentionally frustrated the effectiveness of mid-questioning Miranda

warnings by intentionally withholding them, obtaining a confession, and then immediately

providing warnings and requestioning the defendant using the same questions to obtain a

“Mirandized” confession, id. at 604–05. But the Supreme Court’s reasoning for its

conclusion was split and, as we’ve previously recognized, Justice Kennedy’s concurring

opinion, which provided the narrowest grounds for the holding, “represents the holding of

the Seibert Court.” United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005). In Justice

Kennedy’s view, Elstad’s voluntariness standard should ordinarily apply to coordinated

two-step interrogations (the first part being un-Mirandized and the second following

Miranda warnings). He stated that a separate analysis was required “only in the infrequent

case . . . in which the two-step interrogation technique was used in a calculated way to

undermine the Miranda warning.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the

judgment). In the event of such a “deliberate two-step strategy,” Justice Kennedy

concluded that “postwarning statements that are related to prewarning statements must be

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excluded unless curative measures are taken before the postwarning statement is made.”

Id. Those curative measures must “ensure that a reasonable person in the suspect’s situation

would understand the import and effect of the Miranda warning and of the Miranda

waiver,” and could include things such as “a substantial break in time and circumstances”

to allow a suspect “to distinguish the two contexts and appreciate that the interrogation has

taken a new turn.” Id.

Turning to what occurred in this case, from late January 2018 to March 7, 2018,

DOD investigators interviewed Elsheikh twenty-six times to gather intelligence relating to

ISIS operations. 6 Miranda warnings were not provided. During the interviews, Elsheikh

“provided extensive and detailed answers which established [his] involvement in the

activities of ISIS, including the hostage-taking conspiracy alleged in the Indictment.”

Elsheikh, 578 F. Supp. 3d at 760. It is undisputed that no evidence gathered during these

DOD-led interviews was admitted at trial against Elsheikh.

But the Government did (successfully) seek to introduce evidence gathered during

Elsheikh’s subsequent interviews with FBI agents. Twenty days after the last DOD

interview, on March 27, 2018, two FBI agents interviewed Elsheikh for law-enforcement

purposes. They spoke with him again the following day, March 28. The record shows that

even before that interview took place, the FBI interrogators had taken measures to insulate

6 The DOD investigators were distinct from the DOD analysts who participated in the initial biometric screening process. Further, the record shows that these interviews all occurred under the auspices of the DOD regardless of which agency of the United States Government employed the interviewers. More important than their agency affiliation, all individuals identified here as the “DOD investigators” were distinct individuals from the FBI interrogators. 13 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 14 of 36

themselves from the DOD investigators and from any information gathered as part of the

DOD interviews. They also asked the SDF to provide a different interview room from the

room the DOD used, though the record is not clear on whether a different room was actually

provided on each occasion.

At the outset of the interview, FBI Special Agent John Chiappone read through and

provided Elsheikh a written copy of an Advice of Rights form that set out modified

Miranda warnings. The modifications added language to the standard Miranda warnings

to highlight how any interrogation that followed after these warnings differed from prior

interviews. To that end, the form explained: “you may have already spoken to others from

the U.S. Government. We do not know what, if anything, they said to you, or what you

said to them. . . . We are starting anew. You do not need to speak with us today just because

you have spoken with others in the past.” J.A. 3648 (emphasis added). Likewise, the form

distinguished that although prior statements “likely . . . will not be useable against you in

a U.S. court[, a]nything you now say can be used against you in a U.S. court.” J.A. 3648.

The form explained that Elsheikh had the right to speak to a lawyer or have one present

during questioning and that, regardless, he could decide whether to answer any questions

or “stop answering at any time.” J.A. 3648.

Agent Chiappone testified that after he read through the Advice of Rights form,

Elsheikh’s sole question was what “starting anew” meant. This question led him to

elaborate on the division between anything Elsheikh may have said previously to other

United States personnel—which likely could not be used against him in a criminal

prosecution—and anything he may now tell the FBI agents—which could.

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Elsheikh indicated that he understood his rights, and although he declined to sign

the form, he agreed to answer some questions. Accordingly, Agent Chiappone signed the

form as the witness to Elsheikh having been read his rights. Throughout the interview that

followed, Elsheikh selectively answered questions, sometimes providing thorough answers

and sometimes declining to answer questions or elaborate. A comparison between the

information he provided to DOD interviewers and the FBI agents also demonstrates that

Elsheikh was more forthcoming with the DOD than he chose to be with the FBI.

Before trial, Elsheikh moved to suppress statements he made to the FBI

interrogators, arguing that the Miranda warnings were ineffective because the DOD and

the FBI orchestrated a two-step interview process designed to undermine the effectiveness

of the warnings and lull him into making incriminating statements.

The district court denied Elsheikh’s motion on two independent grounds. First, it

rejected the premise of Elsheikh’s motion that the DOD and FBI “deliberately orchestrated

a two-step interview process in a calculated way to undermine the Miranda warning.”

Elsheikh, 578 F. Supp. 3d at 772 (cleaned up). As support, it pointed to the “starkly

different needs of different agencies within the U.S. government” as well as the

precautionary measures taken to avoid communications and interactions that demonstrated

an intentional lack of collusion between the DOD personnel and the FBI agents. Id. at 773.

In light of this conclusion, the court held that the usual (Elstad) standard for admissibility

of post-Miranda warnings applied and the record supported the conclusion that Elsheikh’s

“statements to the FBI were knowing and voluntary” and thus admissible against him at

trial. Id.

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Second, and alternatively, the district court held that “even assuming [that] the

United States deliberately employed a two-step strategy to undermine the Miranda

warnings,” Elsheikh’s statements would be admissible under the standard set out in Justice

Kennedy’s Seibert concurrence. Id. at 774. In short, the court found that the FBI agents

questioned Elsheikh twenty days after his last DOD interview; they clearly and plainly

described that they were “starting anew” and that this interview would be different from

any prior ones; and they did not know—let alone question Elsheikh about—any statements

he’d made during the earlier DOD interviews. Following the reasoning of the closely

analogous application of the Seibert concurrence in United States v. Khweis, 971 F.3d 453

(4th Cir. 2020), the district court concluded that these circumstances were sufficiently

curative to demonstrate that a reasonable person “would understand the import and effect

of the Miranda warning and of the Miranda waiver.” Elsheikh, 578 F. Supp. 3d at 772

(quoting Seibert, 542 U.S. at 622).

On appeal, Elsheikh contends the district court misapplied Justice Kennedy’s

Seibert analysis and that the DOD and FBI’s coordinated interrogation intentionally sought

to undermine the effectiveness of the Miranda warnings. 7 As support, he suggests that the

7 Elsheikh’s appellate briefing essentially ignores the district court’s first ground for denying his motion—its conclusion that Elstad rather than Seibert applied under the circumstances presented. Instead, his briefs focus on why there were insufficient curative measures in place to ensure that Elsheikh’s rights were not violated. Seizing on Elsheikh’s failure to directly challenge an alternative basis for the district court’s holding, the Government urges us to deem any challenge to this alternative ground waived and thereby avoid any discussion of the merits. We have carefully considered the Government’s argument and Elsheikh’s obligation to “develop” the arguments supporting each issue raised in his opening brief. See Fed. R. App. P. 28(a)(8)(A). (Continued) 16 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 17 of 36

twenty-day gap in time between DOD and FBI interviews was not a sufficient break to

satisfy Seibert and Khweis because there had also been increasing gaps occurring between

the prior DOD interviews. Elsheikh maintains this factor would give rise to a reasonable

inference that he would not appreciate the significance between those gaps and the later

twenty-day gap before the interview with the FBI agents. He also points to the

Government’s inability to confirm that the interviews occurred in different rooms and

asserts that the interviews also involved an impermissible crossover of personnel because

some of the same SDF guards were present during both DOD and FBI interviews. In

addition, Elsheikh points to an email in the record that lists potential strategies to use in the

FBI interview, one of which was to “[d]ownplay [the] Advice of Rights.” S.J.A. 2. He

further claims the FBI did not honor his request to have an attorney present during the post-

Miranda interview. And, in broader terms, he argues that the district court repeatedly and

unreasonably disregarded evidence in his favor and failed to undertake the requisite Seibert

analysis.

Having reviewed the record and the relevant case law, we discern no error in either

of the district court’s grounds for denying Elsheikh’s motion. First, the record does not

While the Government’s argument has some force, we decide to exercise our discretion to overlook Elsheikh’s omission and address fully this important issue challenging the constitutional protections afforded to him during the investigation that led to his criminal prosecution. Of particular influence, we acknowledge that the Seibert issue Elsheikh argues at some length necessarily rests on the threshold premise that his rights were violated by a coordinated two-step interrogation, such that Justice Kennedy’s controlling opinion governs resolution of the admissibility of Elsheikh’s statements to the FBI. Under the circumstances presented, we believe it is appropriate to address this issue in full on the merits. 17 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 18 of 36

support the conclusion that the DOD and FBI coordinated their interview process “in a

calculated way to undermine the Miranda warning,” Seibert, 542 U.S. at 622 (Kennedy, J.,

concurring in the judgment), such that the admissibility of Elsheikh’s statements is subject

to Justice Kennedy’s analysis in Seibert. To the contrary, the record uniformly supports the

district court’s finding that the DOD and the FBI did the opposite of coordinating “in a

calculated way to undermine the Miranda warning.” The FBI agents took numerous

affirmative measures to isolate themselves from both the personnel involved in and the

information disclosed during the earlier DOD interviews. What’s more, the interviews

themselves had entirely different characters. The DOD interviews took place over a three-

month period and involved twenty-six separate encounters that focused on “a wide panoply

of subjects related to military intelligence: hostage locations, ISIS’s infrastructure and

capabilities, the identities of ISIS members, and so on.” Elsheikh, 578 F. Supp. 3d at 773.

In contrast, the two days of FBI interviews delved into matters directly pertinent to a

possible criminal prosecution. Id. These circumstances do not even come close to the sort

of calculated staging that the Supreme Court disapproved of in Seibert. There, the law

enforcement officer questioned the defendant “for 30 to 40 minutes” without the benefit of

Miranda warnings. Seibert, 542 U.S. at 604–05. After the defendant confessed, the same

officer gave her a “20-minute coffee and cigarette break” before returning. Id. at 605. He

read the defendant her Miranda warnings, obtained a waiver, and then “confronted her with

her prewarning statements,” which she admitted to, resulting in a “Mirandized” confession.

Id. That is the sort of interrogation technique calculated to undermine the effectiveness of

a Miranda warning under Seibert and it does not have any parallel on the record before us.

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For this reason, the district court did not err in concluding that Seibert’s “curative

effect” analysis has no application here. And, under the standard Elstad voluntariness

inquiry, the record fully supports the court’s conclusion that Elsheikh understood the

Advice of Rights form and voluntarily decided which of the FBI agents’ questions to

answer. This conclusion alone would be sufficient grounds to reject Elsheikh’s argument.

Given the nature of the case and Elsheikh’s briefing, however, we will also consider

the alternative basis for the court’s denial of the motion—that even if Seibert’s analysis

applied here, sufficient curative measures were undertaken. As the district court

recognized, our decision in Khweis is instructive on this issue. There, the Court undertook

Justice Kennedy’s Seibert curative-measure analysis in the context of an interrogation of a

defendant suspected of supporting foreign terrorism in Iraq. 971 F.3d at 455–56. He was

interviewed by one team of FBI agents for intelligence-gathering purposes and then

interviewed by a separate team of FBI agents for law-enforcement purposes. Id. At the

outset of the law-enforcement interviews, the defendant had been provided with an Advice

of Rights form, he waived his rights, and the Government sought to introduce the post-

Miranda statements at trial. Id. at 456.

When the admissibility of those statements was challenged on appeal, the Court

elected to assume that Justice Kennedy’s curative-measure Seibert analysis would apply to

the circumstances presented, and it concluded that sufficient curative measures had been

undertaken to ensure that the defendant “would understand the import and effect of the

Miranda warning and of the Miranda waiver.” Id. at 461 (citation omitted). As support for

this conclusion, the Court cited nine considerations: (1) a ten-day gap between the two

19 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 20 of 36

stages of interviews, which was “a period longer than any break during the series of

unwarned interviews”; (2) “the warned interviews were held in a different room than the

unwarned interviews”; (3) “[e]ntirely different American and Kurdish personnel attended

the” two sets of interviews; (4) the law-enforcement interviewers “did not receive any

information about [the] intelligence interviews, nor did they ask [the defendant] about what

he told [the intelligence interviewers]”; (5) the law enforcement interviewers “told [the

defendant] they did not know what, if anything, he had said in prior interviews, a disclosure

that would indicate a reset to a reasonable person in [his] position”; (6) the Advice of Rights

form specifically explained that the defendant did not have to speak with them just because

he had spoken to others in the past; (7) the Advice of Rights form explained that the

interviewers were not interested in what the defendant had said in the past; (8) the Advice

of Rights form “explicitly stated: ‘We are starting anew’”; and (9) the law-enforcement

interviewers had informed the defendant that his family had retained counsel for him in the

United States. Id. at 461–62 (citation omitted). Given the totality, the Court concluded that

these circumstances satisfied Justice Kennedy’s concerns in Seibert and permitted the

admission of the defendant’s post-Miranda statements. Id. at 462.

If many of the factors set out in Khweis sound familiar, it’s because the FBI had the

benefit of that decision as they were preparing for their interview with Elsheikh and

intentionally followed many of those protocols. Elsheikh’s attempts to materially

distinguish his record from the circumstances in Khweis fail. Both cases involved a gap

between the intelligence-gathering and law-enforcement interviews that was longer than

any gap that had previously occurred. In fact, the gap in this case is twice as long (twenty

20 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 21 of 36

days instead of ten) as existed in Khweis. Nor is Elsheikh persuasive in arguing that

increased gaps between his prior DOD intelligence-gathering interviews should give rise

to an inference that he was being lulled into a “trap” by which he’d misunderstand that the

law-enforcement interviews constituted a break from what had occurred previously. In

addition to ignoring other evidence directly contrary to his being thus misled, the longest

gap between intelligence-gathering interviews was five days, with most occurring on back-

to-back days or with a single day’s gap. The twenty-day gap retains its curative effect here.

More importantly, the Advice of Rights form Elsheikh was presented with is nearly

identical to the one presented to Khweis, so those factors all support the same conclusion

in this case. Elsheikh was plainly and repeatedly informed of the difference between the

two types of interviews, the legal significance of any statements he would make if he

waived his rights going forward with the FBI interview, and that the FBI agents had no

knowledge of what had been said earlier. Nor did the FBI agents confront Elsheikh with

any statements he’d previously made during the DOD interviews. All of this constitutes

significant evidence of curative measures, if required, rendering the Miranda warnings

effective. Elsheikh’s contention that Agent Chiappone downplayed the Advice of Rights

form has no support in the record. He points solely to brainstorming notes from another

FBI agent and speculates that this means it must have occurred. Against that speculation,

both Agent Chiappone and the other FBI agent in the room testified that the Advice of

Rights form was presented in a straightforward manner and Elsheikh’s questions about it

21 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 22 of 36

were answered. There’s no basis for concluding from this evidence that they “downplayed”

the Advice of Rights form. 8

To be sure, there are some differences between this case and Khweis. It’s not known,

for example, whether the same room was used for both sets of interviews in this case, and

it’s also possible that the same SDF guard was present during some of the intelligence-

gathering and law-enforcement interviews. While we’ve previously remarked on both

being relevant curative measures, we’ve never indicated that they are indispensable to

reaching that result. And here, there’s no evidence that the overlapping location or SDF

guard would give rise to any unique coercive effect that undermines the other factors which

more directly bear on whether there was impermissible collusion. As such, we do not find

these marginal differences significant enough to call into question the sufficiency of the

curative measures undertaken in this case.

Considering the record as a whole, we conclude that the district court did not err as

to its second basis for denying Elsheikh’s motion. The DOD and FBI’s curative measures

were sufficient to underscore the differences in the interviews so that a reasonable person

in Elsheikh’s position would have readily understood “the import and effect of the Miranda

warning and the Miranda waiver.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the

8 As to Elsheikh’s alleged request to have an attorney present during the interviews, the only evidence that Elsheikh asked for an attorney when presented with the Advice of Rights form is his sworn declaration. He did not testify on this matter during the hearing, while the FBI agents did testify to the contrary. Moreover, the FBI agents represented that when Kotey was presented with the same Advice of Rights form, he did invoke his right to an attorney, and they immediately stopped the interview. On this record, the district court did not clearly err in finding that Elsheikh did not invoke that right when speaking with the FBI agents. 22 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 23 of 36

judgment). As such, the district court did not err in concluding that Elsheikh’s waiver was

knowing and voluntary and that the post-Miranda statements he made to FBI agents were

admissible.

C. Statements During Media Interviews

During his detention, Elsheikh participated in multiple interviews with journalists,

including 2019 media interviews with CNN, The Washington Post, ITV News, a Kurdish

news outlet, and documentarian Sean Langan (who testified at the trial). Some were

conducted alone and many with Kotey. During the media interviews, Elsheikh made

statements that were admitted against him at trial regarding a range of topics such as his

upbringing in England, his friendship with Emwazi, his support for ISIS and its ideology,

and (to a limited extent) his knowledge of and participation in ISIS’s hostage activities.

Before trial, Elsheikh moved to suppress those statements, arguing that they were

involuntarily made as a result of physical abuse he endured while in SDF custody. In

support of his motion, Elsheikh submitted his declaration alleging that he was regularly

and repeatedly beaten by SDF guards and that he agreed to participate in the media

interviews—and to make the statements that he did during them—only because he had

been threatened with further beatings if he did not comply.

After a multi-day hearing that included classified testimony in a closed courtroom,

the district court denied Elsheikh’s motion. Elsheikh, 578 F. Supp. 3d at 774–78; see also

23 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 24 of 36

id. at 759–70. 9 The court concluded that Elsheikh’s claim of abuse was “supported by little

more than [his] own uncorroborated words, and is rebutted by a great deal of credible

witness testimony and other record evidence.” Id. at 776. It found credible the various

Government witnesses who interacted with Elsheikh throughout his SDF detention, none

of whom observed signs of beatings, malnourishment, or other mistreatment of the type

Elsheikh maintained that he had faced. The court also found credible the testimony of

numerous witnesses regarding the process for coordinating media interviews with SDF

detainees, including the ability of detainees to control whether and how to participate in

them. Lastly, the district court pointed to the substance of Elsheikh’s statements to different

questioners at different times as proof that he appeared to be free to be more or less

forthcoming as he chose throughout the time of his detention.

“When Miranda warnings are unnecessary, as in the case of [statements made to

non-government actors, the Court] assess[es] the voluntariness of a defendant’s statements

by asking whether [they are] ‘the product of an essentially free and unconstrained choice

by its maker.’” United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (quoting

Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). Assessing whether the “will has been

9 We refer in this opinion only to unclassified testimony and the district court’s unclassified memorandum opinion. But we have reviewed the entire record, including the classified testimony and memorandum opinion. We find nothing clearly erroneous in the district court’s classified findings of fact or its related conclusions of law, but we have chosen not to expound upon the classified components of this case in this opinion given that neither party’s arguments hinge on that part of the record or the district court’s decision. 24 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 25 of 36

overborne” requires courts to consider “the totality of the circumstances, taking into

account characteristics of the accused, and details of the [interview].” Id. 10

We review the district court’s “legal conclusion as to the voluntariness of an

accused’s statements de novo, but its findings of fact on the circumstances surrounding the

[statements] for clear error.” Id. at 232 (cleaned up). The Court “particularly defer[s] to a

district court’s credibility determinations, for it is the role of the district court to observe

witnesses and weigh their credibility during a pre-trial motion to suppress.” Id. (cleaned

up). But “even when findings of fact are not based on observations of credibility, but rather

on undisputed evidence or on entirely documentary evidence, appellate courts must

nonetheless defer to the trial court’s factfinding function.” United States v. Stevenson, 396

F.3d 538, 543 (4th Cir. 2005); see also id. at 544 (“The ‘clearly erroneous’ test does not

derive solely from the trial judge’s superior opportunity to assess the credibility of

witnesses; it also reflects and preserves the proper relationship between trial courts and

courts of appeal.” (citation omitted)).

Under the clearly erroneous standard, we must uphold a district court’s factual

findings unless we are “left with the definite and firm conviction that a mistake has been

made” based on the entire record evidence. United States v. Ferebee, 957 F.3d 406, 417

10 Exclusion is not always necessary when the allegedly coercive actions were committed by a non-Government actor. See, e.g., Abu Ali, 528 F.3d at 228–29 (discussing the analysis that applies when the allegedly coerced statements were made when the defendant was in the custody of a foreign authority but United States personnel “participated” in aspects of the custody). Nonetheless, we assume, without deciding, that this situation could require us to consider the admissibility of the statements under the above-stated principles. 25 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 26 of 36

(4th Cir. 2020) (citation omitted). “If the district court’s account of the evidence is plausible

in light of the record viewed in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently.” Id. (citation omitted). At bottom, “[f]or a factual finding to be clearly

erroneous, [it] must be against the clear weight of the evidence considered as a whole.” Id.

(cleaned up).

We reject Elsheikh’s argument that the district court failed to adequately explain the

basis for its decision. The opinion speaks for itself, and the district court ably recounted

the evidence presented during the hearing, made related factual findings as appropriate,

and then reasonably concluded that the record before it did not support the conclusion that

Elsheikh’s statements during the media interviews were involuntary. The court similarly

explained the bases for disbelieving Elsheikh’s contrary account.

Elsheikh’s challenge to the substance of the court’s factual findings fails because he

has not shown that they were clearly erroneous. Numerous witnesses across nationalities

and professions testified credibly—and subject to cross-examination—that Elsheikh alone

determined whether to participate in media interviews, decided how or whether to respond

to questions posed by the press, and could even terminate an interview mid-course at his

discretion. That testimony was backed up by the substance and timing of Elsheikh’s

statements during the media interviews in question, which exhibited decision-making and

discretion in what information he disclosed when and to whom.

Similarly, numerous witnesses across nationalities and professions testified

credibly—and subject to cross-examination—that they’d observed and interacted with

26 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 27 of 36

Elsheikh at various points throughout his SDF detention and had never seen or received

information indicating that he had been mistreated or abused. The substance of the media

interviews supports that witness testimony: save for one interview in which Elsheikh

appeared “fatigued and unfocused,” Elsheikh, 578 F. Supp. 3d at 767, he consistently

appeared alert, engaged, and responsive. And he did not appear or move in a way that

suggested beatings or injuries from abusive treatment.

Nothing Elsheikh points to leaves us with a “definite and firm conviction that” the

district court mis-weighed the record before it when deciding to credit this evidence over

his own. He points first to his sworn declaration alleging abusive treatment, which was

submitted to the district court. The district court was well within its right to view the

substance of Elsheikh’s declaration—which was never subjected to cross-examination—

as less credible than the contrary testimony of the many witnesses who testified at the

suppression hearing and did subject themselves to extensive cross-examination. As

Elsheikh’s counsel acknowledged during oral argument, nothing would have prevented

Elsheikh from testifying in a limited way at the suppression hearing. See United States v.

Dickerson, 655 F.2d 559, 561–62 (4th Cir. 1981) (rejecting defendant’s argument that he

could not testify at a suppression hearing because of possible prejudice to his Fourth and

Fifth Amendment rights); see also Simmons v. United States, 390 U.S. 377, 394 (1968)

(“When a defendant testifies in support of a motion to suppress evidence on Fourth

Amendment grounds, his testimony may not thereafter be admitted against him at the trial

on the issue of guilt unless he makes no objection.”). Certainly, there may be some risk

associated with deciding to testify at any point in a proceeding, but given that defendants

27 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 28 of 36

can testify at a suppression hearing without it being used against them at the trial, Elsheikh

could have sought to elaborate on the substance of his declaration by doing so there. The

district court was well within its discretion to take the limited substance of Elsheikh’s

declaration and the manner in which he presented that evidence to the court as a reason for

crediting the other, extensive testimony over Elsheikh’s declaration. Similarly, Elsheikh

pointing to Kotey’s similar representations at various times in the past doesn’t move the

needle in his favor given that Kotey had not made a sworn statement or subjected himself

to cross-examination. Lastly, Elsheikh points to a document relaying his and Kotey’s prior

self-reports of abuse. Obviously, this does not offer independent corroboration of his

declaration’s broad assertions, but instead suffers the same failing given that its account

originated from him and Kotey. 11 Under these circumstances, we do not discern clear error

in the district court’s factual findings underpinning its conclusion that Elsheikh voluntarily

made statements during his various media interviews.

At bottom, Elsheikh did not come forward with sufficient evidence to carry his

burden of showing that his will had “been overborne and his capacity for self-determination

critically impaired,” Abu Ali, 528 F.3d at 232 (citation omitted), when he participated in

11 Elsheikh points to a record created shortly after his transfer to DOD custody that notes his and Kotey’s self-reports of physical abuse by SDF. This record does not independently corroborate Elsheikh’s statements, however, because he and Kotey were the source of that information. Moreover, while Elsheikh claimed that he suffered permanent damage to a shoulder socket after SDF guards kicked him, a medical examination performed upon Elsheikh’s transfer to DOD custody reported he possessed a full range of motion in his upper extremities. 28 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 29 of 36

the media interviews. As such, he has not shown that the district court erred in determining

that those statements were voluntary and thus admissible against him.

D. Statements Made By Unavailable Hostages

Before trial, the Government sought a ruling on the admissibility of “testimony,

letters, and audio and video recordings containing out-of-court statements by deceased or

otherwise unavailable victims of the alleged hostage-taking conspiracy.” United States v.

Elsheikh, 598 F. Supp. 3d 363, 366 (E.D. Va. 2022). 12 Elsheikh objected, and after a

hearing, the court deferred ruling to allow for the development of the trial record.

In due course, the district court allowed the admission of this evidence based on the

forfeiture-by-wrongdoing exception to the hearsay rule. Id. at 367. Under that rule, set out

in Rule 804(b)(6) of the Federal Rules of Evidence, otherwise inadmissible hearsay may

be admitted upon a showing of three things: “(1) the defendant engaged or acquiesced in

wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3)

that did, in fact, render the declarant unavailable as a witness.” United States v. Gray, 405

F.3d 227, 241 (4th Cir. 2005). The Government bears the burden of establishing, by a

preponderance of the evidence, that the exception applies. United States v. Dinkins, 691

F.3d 358, 383 (4th Cir. 2012).

On appeal, Elsheikh challenges just one part of the court’s determination—the

second, regarding intent—and the court’s finding that a motive for the wrongdoing at issue

12 Six of the hostages are confirmed dead and a seventh is presumed to have been killed. All seven victims’ actual unavailability is not disputed on appeal. See Elsheikh, 598 F. Supp. 3d at 383–85. After all, no beheaded witness is available to testify at trial. 29 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 30 of 36

here was to render the declarant unavailable as a witness. He argues that the record

unequivocally establishes that the Beatles killed hostages only for political and ideological

reasons and that no evidence suggests that they did so to prevent them from testifying

against them in a future trial. In his view, the court misapplied the exception by improperly

expanding its scope to the circumstances presented, and the evidence should not have been

admitted. We disagree with Elsheikh’s argument.

The Supreme Court has previously recognized that the intent requirement is satisfied

by proof that the defendant’s wrongdoing was “designed to prevent the witness from

testifying.” Giles v. California, 554 U.S. 353, 359 (2008) (emphasis omitted). Thus, it is

insufficient that the wrongdoing have the effect of rendering the witness unavailable; the

wrongdoing must be motivated in some part to obtain that end. Id. at 361–62. But this

requisite intent does not need to be the only or even the chief motive for the wrongdoing.

In United States v. Jackson, we expressly rejected that notion, holding instead that the

exception applies “even when a defendant has multiple motivations for harming a witness.”

706 F.3d 264, 266 (4th Cir. 2013). 13

This case law and the record fully support the district court’s decision to admit the

unavailable hostages’ hearsay statements under the forfeiture-by-wrongdoing exception.

13 The Court has also held that “traditional principles of conspiracy liability are applicable within the forfeiture-by-wrongdoing analysis” such that the exception applies when a “defendant’s co-conspirator engaged in the wrongdoing that ultimately rendered the declarant unavailable as a witness.” Dinkins, 691 F.3d at 384. Elsheikh does not take issue with this principle, which allows the Court to consider the full scope of the conspirators’ wrongdoing—including Emwazi’s wielding the sword—to determine if the exception properly applies in this case. 30 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 31 of 36

The district court reasonably pointed to multiple features of this case supporting that

conclusion.

First, the record shows that the Beatles took “extraordinary steps” to hide their

identities from their hostages, including by wearing balaclavas and gloves and ordering the

hostages not to look at them or to face away from them during interactions. Elsheikh, 598

F. Supp. 3d at 380; see also id. at 381–82. This evidence strongly suggests that the Beatles

did not want their hostages to be able to identify them. Second, the Beatles took measures

to “instill a culture of silence among current and former hostages,” routinely beating and

threatening abuse intended to dissuade them from seeking outside help or, in the case of

released hostages, from speaking with governments or the media about their experiences

or captors. Id. at 381.

Second, the record showed that the Beatles had strong ties to the United Kingdom

and its criminal justice systems. In particular, Elsheikh had grown up in the United

Kingdom, received training as a British Army Cadet, and had committed crimes for which

he’d been arrested and obtained the services of a solicitor. Elsheikh’s background thus

demonstrates his personal familiarity with the potential, even the likelihood, of facing

criminal prosecution for the activities in support of terrorism.

Third, and last, messages Elsheikh sent to his brother, a resident of London, depicted

his awareness that the types of activities the Beatles were involved in could result in

criminal prosecution. See id. For example, Elsheikh sent his brother photographs of himself

posing with a firearm and identifying as a fighting member of ISIS in Syria. He also sent

photographs depicting severed human heads on poles (none of whom were identified as

31 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 32 of 36

the hostages named as part of this case). And he left a voice message assuring his brother

that he had not taken the photograph of the decapitated individuals, proclaiming, “I am

totally innocent of any crimes, and er . . . I have no comment further than that and if you

want to ask me any more questions, you can just speak with my lawyer.” Id. (alteration in

original).

Each link in this evidentiary chain removes any doubt that the district court did not

abuse its discretion in concluding that the deceased hostages’ statements were admissible

under the forfeiture-by-wrongdoing exception. In short, the record shows that Elsheikh was

aware that the activities of the Beatles could subject them to criminal prosecution and that

they took measures to reduce the likelihood of that occurring by preventing their hostages

from identifying them and intimidating their hostages to dissuade them from reporting their

activities. This evidence allows for the conclusion that a reason why the Beatles killed

some of their hostages was to prevent the hostages from being able to assist with any future

criminal prosecution. See, e.g., Giles, 554 U.S. at 377 (citing domestic violence as a

situation in which an abusive relationship may culminate in murder such that the exception

may apply to the victim’s hearsay statements because “the [wrongdoing of murder]

expressed the intent to isolate the victim and to stop her from reporting abuse to the

authorities or cooperating with a criminal prosecution”). On this record, therefore, the

district court did not abuse its discretion in allowing admission of the unavailable hostages’

statements.

32 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 33 of 36

E. Admissibility of Doe’s Testimony

One of the deceased hostages named in the indictment was Kayla Mueller. The

record shows that after months of being held by the Beatles, Mueller was turned over to

the control of other members of ISIS who subsequently enslaved, raped, and killed her.

During that post-Beatles period, Mueller was held captive with a woman (“Jane Doe”)

whom the Government sought to have testify against Elsheikh.

Before trial, Elsheikh moved in limine to exclude Doe’s testimony about any events

involving her captivity before her joint captivity with Mueller. He asserted they did not

meet the threshold for relevance under Federal Rules of Evidence 401 and 402 and that

they were unfairly prejudicial under Federal Rule of Evidence 403.

The district court denied Elsheikh’s motion, concluding the evidence was both

relevant and not unfairly prejudicial. In the court’s view, Doe’s brief proposed testimony

about her capture and detention before meeting Mueller was appropriate “foundational

testimony from Doe regarding her capture and treatment by ISIS,” “provid[ing] context for

the jury to explain why Doe was in ISIS captivity and, specifically, how she came to be

with Mueller.” No. 1:20-cr-00239-TSE, Dist. Ct. Docket No. 260, at 3–4 (E.D. Va. Mar.

24, 2022). The court also rejected Elsheikh’s contention that this testimony fell outside the

charged conspiracy, observing that Doe’s unchallenged testimony about her time with

Mueller was “part and parcel of the ISIS conspiracy” to “provide material support” to that

designated terrorist organization. Id. at 4–5. As for unfair prejudice, the court noted that

the limited nature of the testimony proposed would cabin any concern on that score and

33 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 34 of 36

that any connection the jury may draw between Doe’s experiences and the charged offenses

was “hardly unfair” prejudice given the material-aid conspiracy at issue. Id. at 6.

While the Federal Rules of Evidence state that “[i]rrelevant evidence is not

admissible,” Fed. R. Evid. 402, they set a fairly low bar for relevance. Under Rule 401,

“[e]vidence is relevant if . . . it has any tendency to make a fact more or less probable than

it would be without the evidence[] and . . . the fact is of consequence in determining the

action.” That said, even relevant evidence should be excluded under Rule 403 if it is

“unfairly prejudicial,” meaning that “there is a genuine risk that the emotions of a jury will

be excited to irrational behavior[] and . . . this risk is disproportionate to the probative value

of the offered evidence.” United States v. Walker, 32 F.4th 377, 394 (4th Cir. 2022) (second

alteration in original) (emphasis added) (citation omitted). But a district court’s assessment

of admissibility under Rules 401 and 403 is afforded deference and “will not be overturned

except under the most extraordinary circumstances, where that discretion has been plainly

abused.” United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (Rule 403) (cleaned

up).

We discern no abuse of discretion in the district court’s decision to allow Doe to

testify briefly as to the circumstances of her own capture and time in captivity before being

detained with Mueller. What happened to Mueller was part of the charged conduct, from

her initial captivity with the Beatles through her death with other members of ISIS when

she was held with Doe. Elsheikh has never challenged that basic premise. To set the stage

for the unchallenged part of Doe’s testimony relating to her time in captivity with Mueller,

the district court appropriately allowed the Government to ask Doe briefly about the

34 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 35 of 36

circumstances that led to her being held captive with Mueller. In other words, the

challenged part of her testimony provided useful context for the unchallenged part of her

testimony. See United States v. Miller, 61 F.4th 426, 432 (4th Cir. 2023) (observing, in the

context of Rule 403’s balancing test, that evidence can be probative because it preserves

the “narrative integrity of the Government’s case” and “satisfies the jurors’ expectations”

by filling in evidentiary gaps that would otherwise arise about background information

such as how individuals know each other (cleaned up)). The challenged part of Doe’s

testimony was also directly probative to one of the charges against Elsheikh. Because he

was charged with a material-aid conspiracy, evidence about how the Beatles operated in

hand with other members of ISIS seamlessly integrated into the overarching picture, even

if Elsheikh was not personally accused of taking part in Doe’s captivity. It thus met the

threshold requirement of being relevant to the Government’s case. See Fed. R. Evid. 401.

In addition, the district court conducted an appropriate Rule 403 assessment when

it determined that, in addition to being relevant evidence, Doe’s testimony was also not

unfairly prejudicial. As we have long recognized, “all incriminating evidence” is

“prejudicial” in some way, but that does not mean that it needs to be excluded under Rule

403. United States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995). Here, the admission of brief

testimony about other members of ISIS holding Doe captive discussed conduct no “more

sensational or disturbing than the crimes with which [Elsheikh] was charged.” Id. In sum,

the admission of Doe’s testimony did not run afoul of the governing evidentiary standards.

35 USCA4 Appeal: 22-4496 Doc: 87 Filed: 06/07/2024 Pg: 36 of 36

III.

The horrific acts the Beatles inflicted against United States and foreign nationals

were well-documented in this trial and elsewhere. The trial record established Elsheikh’s

identity as a participant in that brutal scheme. Having thoroughly reviewed Elsheikh’s

specific challenges to the evidence admitted against him at trial, we conclude that no

reversible errors occurred. Elsheikh received the fair trial guaranteed to him by our

Constitution and laws. We therefore affirm his convictions and life sentences.

AFFIRMED