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Convictions for providing material support for Terrorist Organizations upheld in the Liberty City Seven case

The defendants in U.S. v. Augustin, a case known in the Miami area media as the Liberty City Seven case, lost their appeal from convictions for the following offenses:
1. Conspiracy to provide material support to a foreign terrorist organization (Al Qaeda) knowing it to be engaged in terrorist activities;
2. Conspiracy to provide material support (themselves) knowing they would be used in preparation for and in carrying out a violation of 844(f)(1) and (i)(making it a crime to maliciously damage or destroy any property of the United States.); and 3. Conspiracy to destroy by means of explosive a building leased to an agency of the U.S. and with conspiracy to levy was against the U.S.
Following two failed attempts to convict, five of the sevens defendants were found guilty of these charges following the third trial.

Defendant Batiste and a small band of followers were part of a group called the Moorish Science Temple. They frequented a store owned by Abba where Batiste engaged in political and religious conversations in front of Abba, who heard Batiste express a desire to help Osama Bin Laden. Abbas reported this to the F.B.I. and soon began working as a confidential informant. He told Batiste’s group he had contacts with a terrorist organization that was willing to support Batiste’s group. Eventually, Abbas introduced the group to Asaad, another FBI informant, who posed as the connection to a Middle East terrorist group. Batiste gave Asaad a list of military equipment he wanted, spoke about plans for jihad, and committing violent acts such as blowing up the Empire State Building or the Sears Tower. After expressing a desire to form an alliance with Al Qaeda, Batiste and the others took an oath of allegiance to Al Qaeda at Asaad’s request. They continued to discuss plans to blow up FBI offices across the country and a few days later members of the group drove past the Miami FBI office and the National Guard Armory. Later they videotaped various federal buildings, including the Miami federal courthouse. Meanwhile Batiste complained to Asaad about the delay in getting the financial support he requested.

The appellate court found that the evidence was sufficient to prove there was a conspiracy to provide material support to Al Qaeda. The jury could reasonably conclude from their reciting the oath of allegiance, their discussions about plans to blowup FBI buildings, and from videotaping the federal buildings that they were ultimately volunteering themselves attack federal buildings under the direction and control of Al Qaeda. A reasonable jury could convict the defendants beyond a reasonable doubt of the various material support conspiracies.

The defendants challenged these convictions on the grounds that the government’s investigatory techniques and its overinvolvement in the criminal scheme amounted to outrageous conduct in violation of the Due Process Clause of the Fifth Amendment. Noting that outrageous conduct cases turn on the totality of the circumstances, the appellate court did not see the government’s conduct here as “shocking to the universal sense of justice” to warrant a dismissal. It concluded the government only provided a means to those who were already willing and predisposed.

Defendants also argued an FBI agent’s testimony on Batiste’s criminal intent was impermissible. The appellate court rejected this claim, finding the agent was not asked to testify about Batiste’s state of mind, rather he was asked about the effect Batiste’s statements had on the course of the investigation. The agent “testified as to what an observer perceiving Batiste’s outward manifestations would take to be Batiste’s intentions – and not what Batiste’s actual state of mind was.” The lay opinions about Batiste’s intentions were relevant to show why the agents responded as they did, rather than leading Batiste to act in a way that he was not inclined to.

The appellate court upheld the trial court’s decision to qualify the government’s expert on Chicago street gangs, whose testimony drew a connection between Batiste and a Chicago leader of the Moorish Science Temple, a group that Batiste claimed an association with. Based on his experience with the ATF specializing in Chicago street gangs, and as a consultant in over 50 investigations, prosecutions, and sentencing of Chicago street gang members, the district court was within its discretion to qualify him as an expert.

The defendants objected to the dismissal of a juror for refusing to follow the district court’s instructions on the law. The issue arose when a note from the foreperson stated that the juror #4 had made of up her mind in advance of deliberation and that the juror did not want to follow the court’s instructions to make decisions based upon the evidence, but rather wanted to rely solely on her own feelings. According to #4’s own note, another juror threatened to come across the table and assault her. After questioning the jurors, the court replaced juror #4. The defense argued that the conduct of the other jurors and the court’s response to this conduct violated his right to an uncoerced unanimous verdict. The defendant complained that the district court brushed aside this allegation of threatened harm by failing to inquire about this during the jury questioning. The appellate court concluded the court acted with its broad discretion and followed the Eleventh Circuit warnings to “be careful about invading the secrecy of the jury’s deliberations and err on the side of too little inquiry as opposed to too much.” The appellate court also rejected the defense claimed the district court lacked good cause to dismiss the juror. The district court acted within its discretion in removing the juror based on a credibility finding in light of the answers given by the eleven jurors and the vague answers given by #4.