Monday, October 6th, 2008

Trial by Error

United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)

Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations. Al-Moayad was also convicted of related substantive offenses. He was sentenced to seventy-five years in prison, while Zayed was sentenced to forty-five years.

The defendants asserted that they were entrapped. Their trial, however, was marred by a string of spectacularly unfair evidentiary rulings that gravely undermined their defense. The court of appeal remanded the case for a new trial before a different judge.


This case arose through the efforts of a confidential informant named Al-Anssi. In November of 2001, Al-Anssi approached the government and offered to furnish – for money – information regarding terrorism. Among ththe possible targets he mentioned was Al-Moayad, whom Al-Anssi described as the imam of a mosque, but who also ran a bakery and a school. Al-Anssi claimed that Al-Moayad supported terrorist groups. Defendant Zayed was Al-Moyad’s assistant. Although Al-Anssi demanded millions of dollars for his work, in all he was paid only about $100,000, and, in 2004, he set himself on fire outside the White House to publicize his claim that he was entitled to more money.

The FBI sent Al-Anssi to Yemen several times in 2002; the plan was to have Al-Anssi introduce the defendants to another informant, “Saeed,” who was posing as a wealthy American who wanted to donate money to support terrorist activities. Also, in September of 2002, Al-Anssi attended and videotaped a wedding hosted by Al-Moayad. At the wedding, a representative of Hamas made a speech proclaiming that, thanks to Hamas, there would be a terrorist attack in Tel Aviv that same day. And, indeed, there was – a suicide bombing on a bus.

In 2003, Al-Anssi set up a sting operation in Germany. He introduced the two defendants to Saeed, and they discussed Saeed’s anticipated donation to their causes. The defendants were arrested after a final meeting in Germany.

The Trial Errors

1. Improper Testimony

At trial, the government called Gideon Black as its final witness. He was on the Tel Aviv bus that Hamas bombed, as mentioned in the wedding speech. The district court overruled the defendant’s motions to preclude Black’s testimony and to instead allow them to stipulate that they knew that Hamas was engaged in terrorist activities. The court also permitted the government to introduce, through Black, graphic photographs and a DVD depicting the event. Moreover, the court permitted Black to testify about the horrible aftermath of bombing, not just the bombing itself, also over objection.

On appeal, the court held that the district court’s Rule 403 balancing with respect to this evidence was so skewed as to be “arbitrary.” Worse still, the district court refused to give a meaningful limiting instruction. In fact, the evidence was largely irrelevant. The defendants were not charged with any offense in connection with the Tel Aviv bus bombing. Moreover, the evidence was not necessary to show that the defendants knew that Hamas was involved in violence, because the defendants never denied knowing this. Finally, even if it were proper to admit evidence that the bombing occurred, evidence of the bombing’s aftermath was even less probative at trial and far more prejudicial.

Judge Johnson permitted other improper testimony, as well. During the government’s rebuttal case, the judge had admitted into evidence a document that purported to be an application form for a terrorist training camp. The form had been partially filled out by someone named Abu Jihad, and listed defendant Al-Moayad as his sponsor. The judge then permitted the government to call someone named Goba – who had attended the training camp – as a witness. Although the government proffered that Goba would only testify only about the form itself, in it elicited testimony that went far beyond the scope of the proffer.

Goba testified about his experiences in the training camp, including visits to the camp from Osama Bin Laden, and described speeches that Bin Laden made. In addition, during Goba’s tesitmony the government introduced an Al Jazeera news video documenting that visit.

The court of appeals again found error. First, the court noted that Judge Johnson failed to undertake a conscientious Rule 403 balancing at all, perhaps because of the government’s misleading proffer about what Goba would say. But it was clearly error to admit Goba’s testimony, particularly the parts relating to Bin Laden. This was “highly inflammatory and irrelevant and should not have been permitted.” There was, after all, no evidentiary connection between Goba the defendants.

Having held that the testimony of both Black and Goba was error, the appellate court went on to hold that error was not harmless as to the issue of the defendants’ predisposition, which went to the heart of their entrapment defense. Here, while there was some evidence of predisposition, it was not overwhelming, and much of the government’s proof on that issue was inadmissible for other reasons. Moreover, the government’s conduct with respect to Black’s and Goba’s testimony magnified the prejudicial effect. For each witness, the government repeatedly elicited testimony that was well beyond the scope of its proffer.

2. Al-Anssi’s Notes

While in Yemen, Al-Anssi took notes of his meetings with Al-Moyad and Zayed. During its examination of Al-Anssi, the government introduced those notes as substantive evidence, without any limitation. This, too, was error.

First, the notes were not properly admitted as prior consistent statements, because they were made after Al-Anssi’s motive to fabricate – his expectation that he would be paid large amounts of money by the FBI – had already arisen. Nor was the evidence admissible to rehabilitate Al-Anssi’s credibility.

Finally, the notes were inadmissible to rebut any supposed false impression created during the defendants’ examinations of Al-Anssi. It is true that redirect examination can be used for this purpose, but “otherwise inadmissible evidence can be used to rebut a false impression only if the evidence is carefully limited.” Generally, in such situations, the district court must admit the evidence for a clearly defined, limited purpose, and not for its truth. Here, by contrast, Judge Johnson admitted the notes in their entirety, for their truth, and without any limitation.

The erroneous admission of Al-Anssi’s notes was not harmless, given its effect on the defendants’ entrapment defense. Several assertions in the improperly admitted notes that were critical to the government’s predisposition case were not duplicated anywhere else. The notes were also seriously prejudicial for other reasons. They were the only evidence that Al-Moayad had a relationship with Bin Laden after the 1980’s, a critical point at trial, and also suggested Al-Moayad had given material support to Hamas.

3. Improper Admission Other Evidence

The court held that the admission of other evidence, without limitation, was error.

First, the form showing that Al-Moayad had sponsored an applicant to an Al-Qaeda training camp, discussed above, was inadmissible hearsay. The court of appeals rejected the government’s argument that the form was a co-conspirator’s declaration, since there was no evidence that Al-Moayad was in a conspiracy with the person who filled out the form.

Next, it was also error to admit the wedding speech, at least without limitation. The speech was not a co-conspirator statement, since there was no evidence that Al-Moayed was in a conspiracy with the speaker.

Third, the government admitted a will found in Croatia in which the testator indicated that he was willing to die as a martyr. This, the circuit held, was hearsay, but the government used it for its truth.

These three errors, together, contributed substantially to the unfairness of the trial.

4. Cumulative Impact

Finally, the court also agreed with the defendants that the collective impact of all of the district court’s errors rendered the trial fundamentally unfair.


This case has several noteworthy features. Most importantly, it clearly illustrates the importance of preserving evidentiary errors in the district court. Every error the court reversed on was objected to by the defense attorneys, and with great specificity. That was critical here, since it is highly unlikely that the court would have reversed here on plain error grounds.

Another noteworthy feature of this case is the unusually high degree of government misconduct, both at trial and on appeal. At trial, the government repeatedly took advantage of the fact that the judge was asleep at the wheel by introducing evidence that it must have have known was improper, and by repeatedly going beyond its own proffers as to the supposedly limited purpose of the evidence. On appeal, the misconduct took a different form. As least as they were described by the circuit itself, the government made numerous arguments on appeal that seem to have been wholly without basis in law or fact.

This case also introduces a new feature: the “concurrence by footnote.” Throughout the opinion, there are footnotes revealing that Judge Wesley took a position that differed from the views of the other two judges. But he did not write separately on those points, and did not quibble with the ultimate outcome.

Finally, it is noteworthy that the circuit sent this case back to a different judge with no analysis and with none of the usual qualifications that are intended to spare the district judge’s feelings.

Comments are closed.