In a summary order, the Second Circuit upheld the convictions of Sulaiman Abu Ghayth (a son-in-law of Osama Bin Laden) for offenses including conspiracy to murder Americans and providing material support for terrorist activities. The outcome is unsurprising, but the decision nevertheless offers some hope for differently situated defendants charged under the material support statute, 18 U.S.C. § 2339A.
The order, available here, serves as a troubling reminder of the potential breadth of the material support statute. Abu Ghayth’s material support conviction was based on his speeches in the wake of September 11 urging Muslims to fight for Al Qaeda and threatening attacks on “new American targets.” Slip op. at 8. The Circuit rejected a sufficiency-of-the-evidence challenge to this conviction, and observed that “speech alone” can serve to establish a material support violation. Id. at 7 (quoting United States v. Rahman, 189 F.3d 88, 116-17 (2d Cir. 1999)). Practitioners should note, however, that Abu Gayth’s prominence in Al Qaeda enables them to distinguish his offense from that of less influential defendants charged with material support based solely on speech. This argument is bolstered by the fact that panel’s decision relied on United States v. Stewart, 590 F.3d 93 (2d Cir. 2009), which involved a similarly high-profile spiritual leader of a designated terrorist organization.
Promisingly, the summary order leaves open a challenge to jury instructions for aiding and abetting material support for terrorist activities. Under Rosemond v. United States, 134 S. Ct. 1240 (2014), an aiding-and-abetting charge requires the government to prove the intent to facilitate the “specific and entire crime charged.” Id. at 1248. Abu Ghayth argued that, in the material support context, this requires specific intent to facilitate “(1) knowingly (2) providing material support or resources, (3) knowing or intending that such resources are to be used in preparation for or in carrying out (4) an offense identified as a federal crime of terrorism.” Slip op. at 6. Abu Ghayth contended that the district court’s jury instructions did not adequately charge the jury to evaluate his intent as to each of these elements. The Circuit denied this challenge on plain error review, concluding that Abu Ghayth was not prejudiced by any error that occurred in light of the instructions the jury received on the charge of conspiracy to murder Americans. The panel’s decision, however, leaves open a Rosemond challenge in a material support case where the defendant can establish prejudice.