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Terrorism Charges Affirmed, First Amendment Defense Rejected, by Federal Court of Appeals

The Federal Sixth Circuit Court of Appeals has affirmed the conviction three men on terrorism related charges.  An entrapment defense was rejected.

The case is United States v. Amawi et al., Nos.: 09-4339/ 4340/ 4341/4342/ 4344/ 4345; 11-4079(6th Cir. 2012 ).

The three defendants were convicted of terrorism related charges.

I will focus on a couple of issues:  the decision, pursuant to the Classified Information Procedures Act and Foreign Intelligence Surveillance Act, to delete classified information from discovery; and a First Amendment issue.

The case arose when an undercover government agent was approached by at a mosque and asked about the feasibility of kidnaping an Israeli soldier or politician.  Later, the agent was approached about Jihad training.  The agent offered to provide firearm instructions.

The government’s case-in-chief did not contain any classified information.  However, the district court examined and withheld from the defendants discovery of certain classified materials under the Classified Information Procedures Act and the Foreign Intelligence Surveillance Act.  The Act, in part, the court explained: “permits the government to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.”

The court noted a difficulty with the procedures and process:  “Rather than neutrally deciding disputes with an open record based on the adversarial process, we must place ourselves in the shoes of defense counsel, the very ones that cannot see the classified record, and act with a view to their interests.”  The court reviewed the materials and determined that “there was nothing ‘relevant and helpful to the defense.’” Citing  Yunis, 867 F.2d at 623.

The most interesting aspect of the case may be that one of the Defendants requested a jury instruction that stated that he could only be convicted if his conduct was not protected by the First Amendment.  Part of this instruction was:  “A defendant cannot be convicted on the basis of his beliefs or the expression of them, even if those beliefs are unpopular or favor violence.”  The court held that the instruction was not necessary.  The court said:  “First, although the conspiracy was closely related to, and indeed proved by, many of the defendants’ conversations about political and religious matters, the conviction was based on an agreement to cooperate in the commission a crime, not simply to talk about it.”

The court reasoned that an agreement “to engage in criminal activities—in contrast with simply talking about religious or political beliefs—is not protected speech.”  Moreover, juries can consider speech as evidence in a conspiracy.