Second Circuit Affirms Conviction in Training Camp/Website Case

By Robert Chesney
Thursday, January 20, 2011, 10:11 AM

An interesting opinion yesterday in United States v. Kassir (2d Cir. Jan. 19, 2011).  In a 6-page summary order, a Second Circuit panel (Jacobs, Wesley, and Chin) have affirmed the conviction of Oussama Kassir.  Kassir had been convicted by a jury on an array of material support and conspiracy counts (including 18 USC 2339A, 2339B, and 956(a)) stemming from his efforts to create a U.S.-based terrorism training camp (in Bly, Oregon), and also from his efforts to maintain a jihadi website that among other things posted terrorism training manuals (see here for more details)

The holdings:

 - the district court did not err in admitting evidence, under FRE 404(b), that Kassir had “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.”  Such “prior act” evidence was relevant to the contested issue of mens rea, and was not offered simply as propensity evidence.

 - the court also did not act arbitrarily or irrationally in concluding that this same evidence was admissible under Rule 403 (i.e., the court did not err by refusing to exclude it on grounds of undue prejudice).

 - the court did not err by permitting the government to use an expert witness to tell the jury about the general organizational structure and activities of al Qaeda, as this sort of thing is done routinely in organized crime cases.

 - the evidence sufficed to sustain the conviction.  A co-conspirator (James Ujaama) had testified about Kassir’s actions and intentions, and lack of corroboration “goes to the weight of the evidence, not to its sufficiency.”

 - the material support charge under 2339b was not unconstitutionally vague:

In light of the Supreme Court’s decision in Holder v. Humanitarian Law Project, we reject Kassir’s constitutional  challenges to 18 U.S.C. § 2339B. Just as with the as-applied challenge in Humanitarian Law Project, Kassir’s challenge fails because § 2339B applies clearly to his conduct. 130 S. Ct. at 2720; see also Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982). As the district court observed, knowingly providing jihad training and disseminating training manuals on the Internet for the benefit of al Qaeda, and other terrorist organizations, implicates the core meaning of a statute that proscribes knowingly providing training and expert advice or assistance to a foreign terrorist organization.” Kassir, 2009 WL 2913651, at *9 (internal quotation marks omitted).

A “person of ordinary intelligence,” Linares Huarcaya v. Mukasey, 550 F.3d 224, 231 (2d Cir. 2008) (per curiam), would know that training aspiring jihadists in the use of guns and knives, and in how to make poison, Trial Tr. 934-37, 1332-34, 1046-48, is proscribed by 18 U.S.C. § 2339B. A person of ordinary intelligence would also know that creating and maintaining websites that host training manuals and propaganda for jihadist organizations and provide instructions for making explosive devices and other weapons, is similarly prohibited. Trial Tr. 781-82, 2029, 1722-24, 1924-25, 1964-65, 1972-73, 2003-05. Moreover, § 2339B “provides explicit standards for those who apply it,” Linares Huarcaya, 550 F.3d at 231, because it provides definitions of its relevant terms.