The U.S. Court of Appeals for the Sixth Circuit issued an opinion last week sustaining a district court decision, in which the lower court found that a Jordanian national and U.S. lawful permanent resident (LPR) had attempted and conspired to provide material support to a terrorist organization (here, ISIS). The case provides an interesting view into circuit court standards of review, and the burden that the government must carry to obtain terrorism convictions to begin with.
There are a lot of facts in the case (the defendant, Laith Waleed Alebbini opted for a bench trial by the district court judge — in lieu of a jury trial — and that trial took 10 days), so I will try to boil it down to the basics.
Alebbini came onto the government's radar when he travelled from his then-home in the middle of Virginia to the Turkish embassy in Washington, D.C., in January 2017, with the intent of talking to the Turkish ambassador about the "Syrian conflict". It does not appear that he had an appointment, as he drove right into the embassy compound in an unauthorized vehicle (a no-no that he was still able to pull off).
The cops were called, and they escorted him off the property. As he was leaving, he allegedly turned toward the embassy, shouting "you are going to regret this!"
Not surprisingly, all of this prompted a visit by the FBI two weeks later. He admitted to agents that he had been kicked off Facebook for posting pro-ISIS videos, and "mentioned that he agreed with ISIS's overall goals but not necessarily with their means of achieving those goals." He asserted that he had wanted to join the U.S. military to fight against Syria, but admitted "that he 'would be the perfect recruit for ISIS.'"
The agents asked about his recent travels, and he purportedly told them only that he had gone to Canada. They determined, however, that he had actually gone to Turkey with his cousin, Raid Ababneh, a week before in order to "fight Bashar al-Assad with the Syrian opposition forces". Alebbini (and the airline) apparently overlooked the fact that his passport had expired, so the Turkish government returned him to the United States (Raid, on the other hand, was able to travel, but later "got caught").
Alebbini then moved to Dayton, Ohio, so the FBI shifted its investigation there, working with an informant who recorded conversations with Alebbini and Raid over a roughly two-month period. Alebbini made statements in support of ISIS, but also warned that they should not discuss the organization over the telephone for fear of monitoring. "If asked, Alebbini noted, 'We can say that we are talking about opposition and a revolution.'"
Alebbini started to equivocate over his interest in the group. The circuit court noted, however:
Nevertheless, at the end of March 2017, Alebbini commented to the informant that "the truth is crystal clear," and alluded to him and Raid reaching "the execution phase" of some unidentified plan. He asserted: "our duty is to support the Islamic State. ... What's our duty? Jihad. So, a person must be, I mean, must distance himself from the people of sin until it happens ... and if it happens and he is captured; then let them capture him[.]"
Alebbini also told the informant that Raid had been arrested by counterterrorism forces in Jordan, under apparent suspicion that he had been traveling to join ISIS, and Alebbini was concerned that Raid might implicate him.
That raised more flags for the FBI, and the investigation appears to have expanded to surveillance of members of Alebbini's family. In particular, according to the circuit court, in a six-hour conversation with his cousin, Hussein: "Hussein tried to talk Alebbini out of traveling to the Middle East to join ISIS, but Alebbini insisted, 'I am going to join these people because they are right. ... I am 100 percent positive and I know, and I've seen through evidence and proof that they are right.'"
In addition, Alebbini defended then-ISIS leader Abu Bakr al-Baghdadi, and discussed the structure of the group and how it assigns its operatives (apparently he had been studying the group "for years").
On April 25, 2017, he exchanged messages with his family, including sending his father "an ISIS-related Youtube video", in which he stated: "Watch this video. So you know the truth." In response, his father told him that Raid "had confessed to everything and pleaded with Alebbini to refrain from following through with whatever he was planning."
To no avail, apparently, because the next day Alebbini and his wife headed for Cincinnati-Northern Kentucky Airport (ostensibly on his way to Turkey, as explained below). On the way, he got a message from a friend who asked him not to leave, and to which, according to the circuit court, Alebbini responded: "Do you think I am a criminal ... I am a terrorist ... I am mujahid."
Once at the airport, he retrieved boarding passes for himself and his wife, and then "appeared to make his way toward the TSA checkpoint". At that point, the FBI stopped him.
During questioning, he told the agents that he had a ticket to Jordan, with a layover in Turkey, but that he planned on not proceeding to Jordan (where he claimed he was wanted by the authorities). He spoke positively about ISIS, and explained how he and Raid had come to their conclusions about the group from watching YouTube videos, explaining that "the plan was that I go [to the Islamic State] first" and that Raid would come later.
He contended, however, that he did not want to kill anyone, had not had contact with "people from there" (presumably ISIS) in order to avoid suspicion, and "did not want connections until he got to Turkey". The FBI thereafter arrested him.
As noted, the district court judge found him guilty of the two charges against him (both of which are contained in 18 U.S.C. § 2339B(a)(1)), and sentenced Alebbini to 180 months. The material support and resources in question were his own services. He appealed that decision, claiming that the evidence was insufficient to convict him.
To prove its case, the government was required to show "that Alebbini knowingly provided or attempted or conspired to provide material support to a foreign terrorist organization that he knew had been designated a foreign terrorist organization or had engaged in terrorism".
With respect to the conspiracy charge, "the government had to prove (1) the existence of an agreement between two or more persons to violate the law, and (2) that defendant knowingly and voluntarily joined the conspiracy".
As you can guess, these are not always easy charges to prove. Would-be terrorists are generally fairly circumspect about their plans, and selective about whom they share those plans with. Informants (such as the one here) make that a much easier process, but again, the evidence detailed by the circuit court shows that Alebbini was concerned about getting caught.
Alebbini contested the fact that there was any agreement between him and Raid. Notably, however, no formal agreement is needed; it can be tacit, and proven by circumstantial evidence. He also contended that the attempt charge had not been proven because the evidence "did not demonstrate that he took a substantial step towards the crime charged, or that he intended to work under the direction and control of ISIS."
On review, it is the job of the circuit court to review the sufficiency of the evidence de novo, which is to say anew. Nonetheless, a defendant challenging a conviction on appeal "bears a very heavy burden". The conviction must be affirmed — pursuant to Supreme Court precedent — if the reviewing court "after viewing the evidence in the light most favorable to the prosecution", concludes that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
That means that the circuit court could not simply substitute its own conclusions about the evidence for that of the trial court. Rather, although the review is de novo, the standard is deferential to the court that actually tried the case — it had to have gotten its conclusions really wrong to be overturned.
The "attempt" charge, the circuit court held, required the commission of an "overt act" that "was a substantial step toward committing the crime". It concluded, however, that such an overt act was not an element of the "conspiracy" charge.
Alebbini asserted that the conspiracy charge could not stand because there was no extrinsic evidence proving Raid's intention to conspire (it takes at least two to make a conspiracy, and all of the evidence about Raid's intentions came from Alebbini, the defendant claimed).
The circuit court concluded, however, that Raid's own actions (his travel to the Middle East) and the consequences that he faced for those actions (his "imprisonment by Jordanian counterterrorism authorities") bolstered Alebbini's statements. And the defendant was not the only source of that information (these facts were confirmed by a cousin).
Even if there were not such third-party evidence, however, the circuit court concluded that Alebbini's own statements were sufficient for this conviction to stand.
With respect to the attempt charge, Alebbini argued that there was no evidence to prove "that he intended to provide himself to ISIS to work under its direction and control", or that he had committed the overt act the conviction required.
The circuit court affirmed the district judge's finding that Alebbini's departure from the ticket desk to the security area was sufficient. Alebbini had argued that "that a rational trier of fact would have no way of knowing whether he was headed towards the security area, and his gate, simply because he was walking in that direction". Rather, his contended, he could have been headed to the bathroom or the nearby Starbucks.
The circuit court, reviewing his entire itinerary that day, made short work of this contention, holding: "To suggest, as Alebbini does, that the evidence is more consistent with a trip to the bathroom or for a cup of coffee — or even insufficient to establish the district court's conclusion — is folly."
And the circuit court found sufficient evidence for the trial judge to have concluded the defendant "intended to provide himself to work under the direction and control of ISIS".
The Sixth Circuit specifically referenced the following statement that Alebbini made to a cousin six days before he headed to Cincinnati-Northern Kentucky Airport, to demonstrate that the defendant was going to offer himself to work under ISIS's direction and control:
The Islamic State is fighting a survival war. They asked people to migrate to the State. When migrants get there they ask them what they learnt, what they studied and they will assign them accordingly to a diwan or a district or they will recruit them as inghimasi. I, cousin, want to go be an inghimasi soldier!
An expert witness identified this process as "part of ISIS's administration".
Again, the evidence described was not the sum total of the government's case (the Sixth Circuit's decision gets pretty weedy). But the case itself is a good representation of what the government has to prove — and how it gets the evidence to prove it — in a terrorism-related prosecution. And of the somewhat confusing but nonetheless deferential standard that a reviewing court must apply in considering an appeal from a criminal conviction.
Finally, I will note that (in the words of the Sixth Circuit) the defendant "immigrated" to this country in 2009, but did not become an LPR until 2014. How exactly he got his green card is not clear from that opinion, but the court notes that he had been "researching ISIS and the greater conflict in Syria" for years before he made his trip to the Turkish embassy.
When that research began is not specified, but it is possible that DHS failed to catch Alebbini's interest in the group (or he failed to tell them about it) when the defendant became an LPR. There was no immigration-related fraud or misrepresentation charge in the indictment or superseding indictment in this case (the conspiracy charge was not lodged until a year after the attempt charge), so either there was no such proof, or not enough to go on.
Raid's current whereabouts (and immigration status for that matter) are not specified in the opinion. But DHS likely has some questions for him, when and if he returns to this country.