United States v. Mustafa

406 F. App'x 526
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 19, 2011
DocketNo. 09-3974-cr
StatusPublished
Cited by8 cases

This text of 406 F. App'x 526 (United States v. Mustafa) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mustafa, 406 F. App'x 526 (2d Cir. 2011).

Opinion

SUMMARY ORDER

Oussama Kassir appeals from his conviction, after a jury trial, of (1) providing and concealing material support and resources to terrorists, 18 U.S.C. §§ 371, 2339A, 2339B, 2; (2) conspiring to provide and conceal material support and resources to terrorists, 18 U.S.C. §§ 371, 2339A, 2339B, 2; (3) conspiring to kill, kidnap, maim, and injure persons in a foreign country, 18 U.S.C. § 956; and (4) distributing information relating to explosives, destructive devices, and weapons of mass destruction, 18 U.S.C. §§ 842, 2. Kassir was sentenced principally to life imprisonment.

Kassir challenges his conviction on four grounds. First, Kassir argues that the district court erred in admitting evidence he maintains was irrelevant and unfairly prejudicial. Second, Kassir contends that the district court abused its discretion by allowing a terrorism expert to testify regarding the history, structure and leadership of al Qaeda, the recruitment of terrorists, and the means by which terrorist organizations raise money, distribute propaganda, and provide training. Third, Kassir asserts that evidence introduced at trial was insufficient to establish that he had a knowing agreement with another person in connection with the conspiracy counts of his conviction and that the support he provided to terrorist organizations was material. Fourth, Kassir argues that, as applied to him, 18 U.S.C. § 2339B is unconstitutionally vague, overly broad, and infringes his First Amendment rights. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

[1] We see no abuse of discretion in the district court’s challenged evidentiary rulings. See United States v. Quinones, 511 F.3d 289, 307 (2d Cir.2007). Evidence was admitted under Federal Rule of Evidence 404(b) that Kassir associated with terrorist groups other than al Qaeda, attended and attempted to attend jihad training camps in other countries, and admitted to killing people while engaged in jihad. That evidence was highly probative of Kassir’s state of mind, including his “intent and knowledge,” which were disputed at trial. See United States v. Teague, 93 F.3d 81, 84 (2d Cir.1996). With respect to Kassir’s claim that the evidence was unduly prejudicial, the district court “conscientiously balanced the proffered evidence’s probative value with the risk for prejudice” and its conclusion that that the evidence was admissible was not “arbitrary or irrational.” United States v. Al-Moayad, 545 F.3d 139, 159-60 (2d Cir.2008); see also United States v. Abu-Jihaad, 630 F.3d 102, 133-34 (2d Cir.2010).

[2] The admission of testimony by a terrorism expert was not an abuse of discretion. See United States v. Cruz, 363 F.3d 187, 192 (2d Cir.2004). As the district judge observed, this Court “repeatedly has approved the admission of expert testimony in organized crime cases to help explain the operation, structure, membership, and terminology of organized crime families.” United States v. Kassir, 04 Cr.356(JFK), 2009 WL 910767, at *4 (S.D.N.Y. Apr. 2, 2009) (internal quotation marks omitted). Expert testimony is similarly appropriate in the context of a case— such as this one — which implicates the activities of terrorist organizations and their supporters. The district court reasoned:

Although al Qaeda has become a household name, it remains true that some depictions of it on television, in the movies, and perhaps even in the national [529]*529news may be misleading. Furthermore, many of al Qaeda’s operational methods relevant to the charges in this case may not be known to the layperson.

Id. at *5. In light of our deferential standard of review, United States v. Wexler, 522 F.3d 194, 204 (2d Cir.2008), and the “liberal standard for the admissibility of expert testimony” under the Federal Rules of Evidence, United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir.2003), the ruling that the expert testimony was sufficiently helpful and reliable to be admissible under Rule 702, Kassir, 2009 WL 910767, at *7, should not be disturbed.

Given “our exceedingly deferential standard of review” of sufficiency, United States v. Hassan, 578 F.3d 108, 126 (2d Cir.2008), we conclude sufficient evidence supports Kassir’s conviction in all respects.

As to the conspiracy to provide jihadi training, the testimony of Kassir’s coconspirator — who testified as a cooperating witness — was sufficient to allow a rational trier of fact to conclude that the government established Kassir’s knowing participation beyond a reasonable doubt. See In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 112 (2d Cir.2008). “A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” United States v. Gordon, 987 F.2d 902, 906 (2d Cir.1993). “Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal.” Id.

As to the conspiracy to create and maintain terrorist websites, Kassir argues there was insufficient evidence that he had coconspirators. Not so. The government introduced evidence that Kassir’s websites were updated while Kassir, incarcerated, lacked access to the Internet, and that authors of documents posted to the websites expressed their gratitude for Kassir’s assistance.

Sufficient evidence supports the jury’s finding that Kassir’s support of terrorists and terrorist groups was “material” within the meaning of 18 U.S.C. §§ 2339A & B. Material support or resources is defined as:

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Related

Kassir v. United States
3 F.4th 556 (Second Circuit, 2021)
Kassir v. United States
S.D. New York, 2019
United States v. Mustafa
Second Circuit, 2018
United States v. Ahmed
94 F. Supp. 3d 394 (E.D. New York, 2015)
United States v. Mostafa
16 F. Supp. 3d 236 (S.D. New York, 2014)
United States v. Wassim Mazloum
695 F.3d 457 (Sixth Circuit, 2012)

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Bluebook (online)
406 F. App'x 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mustafa-ca2-2011.