UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BURSON AUGUSTIN, a.k.a. B, STANLEY GRANT PHANOR, a.k.a. Brother Sunni, PATRICK ABRAHAM, a.k.a. Brother Pat, ROTSCHILD AUGUSTINE, a.k.a. Brother Rot, NARSEAL BATISTE, a.k.a. Brother Naz, a.k.a. Prince, Manna, Defendants-Appellants.
No. 09-15985
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
NOVEMBER 1, 2011
D. C. Docket No. 06-20373-CR-JAL
[PUBLISH]
Appeals from the United States District Court for the Southern District of Florida
(November 1, 2011)
PER CURIAM:
Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild Augustine, and Narseal Batiste (collectively, “Appellants“) were all convicted of (1) conspiracy to provide material support to a Foreign Terrorist Organization (Al Qaeda) by agreeing to provide personnel (including themselves) to work under Al Qaeda‘s direction and control, knowing that Al Qaeda has engaged or engages in terrorist activity, in violation of
Appellants now appeal their convictions, raising six issues. First, Batiste and Augustine challenge the district court‘s order granting in part the government‘s motion to strike portions of the indictment as surplusage. Second, Augustin, Phanor,
I.
We first recite the facts of this case in the light most favorable to the government. United States v. Glen-Archila, 677 F.2d 809, 812 (11th Cir. 1982). We then describe the procedural history.
A.
Batiste was the leader of the Miami branch of an organization called the Moorish Science Temple, headed in Chicago by an individual known as Sultan Khan-Bey, who named Batiste a minister in the Temple in July 2004. His followers included the other appellants—Abraham, Phanor, Augustin, and Augustine—as well as Batiste‘s wife, Minerva Vazquez, and two other men charged (but subsequently aquitted) in this case, Naudimar Herrera and Lyglenson Lemorin.
As early as 2004, Batiste‘s group mixed political and religious ideology with martial arts training. The group frequented a convenience store called Al-Saidi Enterprises, where Batiste engaged in political and religious conversations with Abbas Al-Saidi (“Abbas“), a part owner of the store. The government offered evidence that in these conversations, Batiste mentioned his agreement with Osama Bin Laden‘s plans to kill Americans in retaliation for America‘s killing of Muslims around world. The government contends that when Batiste learned that Abbas would be traveling home to Yemen, he asked him to help contact a foreign terrorist organization, such as Al Qaeda, Hammas, or Hezbollah, to help support Batiste‘s religious and political goals in the United States. According to Abbas, Batiste gave him a flyer containing Batiste‘s address and contact numbers to give to Abbas‘s connections with those organizations.
In the fall of 2005, Abbas contacted the FBI, and began working as a confidential informant for the agency. At the FBI‘s request, Abbas began to record his meetings with Batiste and the members of his group to determine if they were a threat. He also pretended that he had made contact with a terrorist organization that was willing to support Batiste‘s group. Batiste, Abraham, Herrera, and Augustin drove Abbas past the Miami FBI Building, and Batiste pointed to a window broken during Hurricane Wilma and noted how easy it would be to throw a grenade into the building. He observed that “the best time to attack the U.S. Government is during a disaster.” On November 7, 2005, Augustin met with Abbas at the group‘s headquarters—known as the “Embassy“—and discussed how the group‘s “plan” for “jihad” to “destroy” the “devil” would attract followers, who would see that “we‘re not just talking about taking over Miami or some Dade county, we‘re talking about taking over . . . Allah‘s world” through coordinated attacks in various locations.
At the direction of the FBI, Abbas told the group that a representative of a Middle
On December 16, 2005, Abbas introduced Batiste to a second FBI informant, Ellie Assaad (“Assaad“), who was posing as Abbas‘s foreign terrorist connection. To prove to Assaad that he was serious about his mission, Batiste told Assaad that he was in the “same situation” as an individual named Jeff Fort, who Batiste described as the “leader of one of the biggest gangs” based on “Islamic philosophy,” and who went to jail in the 1980s “for terrorism,” because “he was being helped by Libya.”
Assaad asked Batiste to make a list of what support he wanted, and Batiste provided a list requesting uniforms, boots, machine guns, radios, and other equipment. On December 18, 2005, Abraham brought Abbas to the Embassy, where Batiste, Augustin, Phanor, and Herrera were meeting with a potential recruit. Batiste gave Abbas another list, including assault rifles, boots, uniforms, SUVs, binoculars, bulletproof vests, revolvers, phones, military jackets, and rocket launchers.
On December 21, 2005, Batiste told Abbas of his desire to create confusion through bombing or mass poisoning, and in particular raised the idea of blowing up or burning down the Empire State Building or the Sears Tower, adding “[t]hen you gotta get . . . the buildings right here in Miami.” On December 22, 2005, Batiste gave Assaad another similar list of materials, this time specifying the shoe sizes for the members of his group. Batiste elaborated on the idea of attacking the Sears Tower. Batiste stated, “I know this building, I know how to get inside this building,” and explained that he had been thinking about it since 1998. Federal Express records indicate that Batiste had worked for the company in the Chicago Loop (where the Sears Tower is located) in 1998. At a December 29, 2005 meeting, Assaad provided the boots Batiste had requested, and Batiste again elaborated on his idea for a dynamite attack on the Sears Tower, this time pointing to his construction experience (as Batiste was, at the time, running a construction company in Miami): “If I can put up a building, I can take one down.” Batiste provided another list, specifying various firearms and materials, as well as $50,000 in cash.
Batiste and Abraham became concerned that Assaad was involved with law enforcement, so when Abbas and Assaad arrived at the Embassy on January 28, 2006, Abraham, Herrera, and Augustin had them strip, change into other clothes, and hand over all electronic devices. Assaad hid the recording device, but refused to give up his phone, explaining that he needed to stay in touch with Al Qaeda at all times. Abraham drove Abbas and Assaad to see Batiste in Islamorada, without telling Abbas or Assaad where they were going during the two-hour drive. Once in the Keys, Abraham met up with Phanor, who had driven separately, and Phanor and Abraham insisted that Assaad surrender his phone, because according to Phanor: “in this business brother, with electronics, you can never be too safe . . . in this country, brother, . . . electronic devices [are] something terrible to have cause they find all kinda ways to, you
Abbas and Assaad were taken to meet Batiste in a fishing tent by the water. Batiste explained that he was suspicious because the government was “concerned about domestic terrorism . . . citizens who will help out on the terrorist attack right here in America, as opposed to outsiders coming over here and doing it.” Batiste explained that he was concerned that Assaad was taping their conversations. Assaad assured Batiste that “Al Qaida [was] very happy with your plans,” and Batiste stated that “those plans will never change.” Batiste and Assaad discussed obtaining funding and a new training headquarters in Miami, as well as bringing in a bomb expert from overseas. Batiste said that he could obtain the materials and access through his construction company, but he needed an expert to help making the bombs.
On February 19, 2006, Assaad, Batiste, and Abraham discussed details for sending members of Batiste‘s group overseas for Al Qaeda training. Batiste again elaborated on his plan to detonate explosives under the Sears Tower, explaining how he would obtain a city contract in order to gain access. Batiste also discussed the need for a new training space in Miami, and a video camera to “film [his] evidence.” The next day, however, Batiste told Assaad that after talking to some of his group members, he decided that he wanted to train his members at his property in Louisiana rather than at an Al Qaeda camp.
On March 9, 2006, Assaad aborted a scheduled meeting with Batiste when two of Batiste‘s men tried to strip search him at the Embassy. Eventually, Assaad returned and was searched by Abraham and Phanor before meeting with Batiste, Augustin, Augustine, and Herrera. Batiste expressed that he was pleased that Al Qaeda knew of his Sears Tower plan and wanted an alliance with him, but that he was anxious to receive the money he had requested from Assaad.
The next day, March 10, 2006, Batiste reaffirmed to Assaad his desire to form an alliance with Al Qaeda and took an oath of allegiance to Al Qaeda that the FBI had written for Assaad. Assaad requested that Batiste have all the group members come to the Embassy so he could “read . . . the commitment in front of everybody.” Assaad, Batiste, and Phanor looked at a potential warehouse space, which Assaad presented to the group on March 16, 2006, the day the other defendants were offered the Al Qaeda oath. On the way to the meeting, Batiste told Phanor not to bring another member, “Brother Corey,” because the meeting was “only for the closed circle.” Batiste directed Lemorin and Phanor to conduct counter-surveillance to make sure “the coast [was] clear.”
Batiste, Abraham, Augustin, Augustine, Phanor, Herrera, and Lemorin were at that March 16, 2006 meeting, with Augustine guarding the door. Batiste began by acknowledging how “grateful” his group was for the support of Bin Laden and Al Qaeda, and Batiste and Assaad both affirmed the bonds of the alliance. Each of the defendants then took an oath, with Assaad first (at Batiste‘s prompting), reading it for them, and then the group members repeating along the second time through and substituting their own names in the relevant places. Augustine appears to have misstated the oath such that, on its face, he pledged allegiance to himself. Before taking the oath, Phanor asked Batiste whether it was “alright” to take the oath. With Batiste‘s approval, Phanor took the oath. After Batiste read from the Qur‘an
After the oath, as directed by the FBI, Assaad asked Batiste if it was okay to discuss in front of the other members an Al Qaeda plan to blow up five FBI offices across the country, including the Miami office. Batiste said it was okay to discuss the plan in front of those present at the meeting (including all of the appellants), because they were “[his] close guards.” Assaad explained the plan and asked for help videotaping the Miami FBI building, and presented Batiste with the video camera he had previously requested for his Sears Tower plan. Batiste accepted the task, and promised to deliver the tapes in about a week, but warned Assaad that “when I give you these tapes, you‘re gonna have to be very careful with those tapes.” Batiste continued to discuss his Sears Tower plan, and complained that it was taking too long for Assaad to come through with the financial support he had requested.
On March 24, 2006, on the way to purchase additional film equipment, Batiste and Abraham drove Assaad past the North Miami Beach FBI office and other alternative targets of their own choosing, such as the National Guard Armory in Northwest Dade and a synagogue. The next day, Phanor, Batiste, and Augustine drove a van around the federal courthouse complex and Federal Detention Center in downtown Miami, and then parked the van and took pictures and video footage of the building.3 The following day, Batiste and Augustin gave Assaad photographs of the North Miami Beach FBI building and photographs and video recordings of the downtown courthouse complex, depicting the various views of the buildings at the two sites, including their security barricades, check-points, gas lines, and water supplies. In Augustin‘s presence, Batiste on two occasions offered advice to Assaad about the security observed at the Miami federal buildings and how to go about the attack.
Batiste obtained money from Assaad to bring Khan-Bey—the leader of the group in Chicago—to Miami, in order to tell Khan-Bey of the plan. Batiste also
brought his religious mentor, “Master Athea,” to Miami, but Master Athea became disillusioned with Batiste‘s and Khan-Bey‘s beliefs. On April 19, 2006, Khan-Bey was arrested for firing a gun at Master Athea. Batiste became increasingly suspicious that Assaad was working with the FBI and began to decrease his communication with Assaad. On April 27, 2006, Master Athea spoke with the FBI and agreed to record a conversation with Batiste, in which they discussed their disagreements about Batiste‘s waging of a physical rather than spiritual war.
Abraham was arrested on May 9, 2006 for overstaying his tourist visa. Abraham gave a statement, after receiving warnings in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), which was used only against him at trial. In that statement, he implicated himself and the other group members. The remaining defendants were arrested on June 22, 2006.
B.
On June 22, 2006, Augustin, Phanor, Abraham, Augustine, Batiste, Herrera and Lemorin were indicted by a federal grand jury sitting in the Southern District of
The defendants pled not guilty, and three trials ensued. The first trial began on September 18, 2007. On December 13, 2007, that jury acquitted Lemorin on all counts, but was unable to reach verdicts as to the remaining defendants, and the district court declared a mistrial. The second trial began on January 22, 2008. That trial also ended, on April 16, 2008, with the jury unable to reach verdicts on any of the counts as to the remaining defendants, and the district court again declared a mistrial. The third trial began on January 27, 2009. Much of the government‘s evidence consisted of taped conversations recorded by the confidential informants, Abbas and Assaad, as well the one conversation recorded by Master Athea. After approximately three months of trial, the case was sent to the jury for deliberations on Monday, April 27, 2009. One juror was dismissed due to illness on Thursday, April 30, 2009, and the jury was reconstituted. Another juror was dismissed on Tuesday, May 5, 2009 after the district court determined that the juror was unwilling to follow the court‘s instructions on the law. The jury was reconstituted again. On May 12, 2009, the reconstituted jury returned a verdict convicting Batiste on all counts, convicting Abraham on Counts 1–3 and acquitting him on Count 4, convicting Augustin, Phanor, and Augustine on Counts 1 and 2 and acquitting them on Counts 3 and 4, and acquitting Herrera on all counts.
II.
Batiste and Augustine challenge the district court‘s order granting in part the government‘s motion to strike portions of the indictment as surplusage. We review a district court‘s decision on a motion to strike surplusage from an indictment for an abuse of discretion. United States v. Awan, 966 F.2d 1415, 1426 (11th Cir. 1992).
The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .”
On December 19, 2007, shortly after the first trial, the government moved to strike from the indictment any references to Lemorin and certain allegations—namely, the General Allegations section of the indictment and several of the enumerated overt acts—claimed to be surplusage. On February 21, 2008, the district court granted in part and denied in part that motion. Specifically, the district court granted the motion to strike the references to Lemorin, as well as two paragraphs in the General Allegations describing the Sears Tower and the Miami Field Office of the FBI. The district court also granted the motion to strike several of the overt acts listed in the indictment, because the indictment never said that any of the defendants committed all of the overt acts. Instead, the original indictment said only that at least one of the defendants committed at least one of the overt acts. In the revised indictment, several overt acts remained. Thus, the district court concluded that omitting some but not all overt acts narrowed rather than broadened the indictment. Finally, the district court granted the motion to strike sentences further describing Al Qaeda‘s leadership and membership, and its designation by the Secretary of State as a “foreign terrorist organization” under the Immigration and Nationality Act.4
Batiste argues that the district court abused its discretion in granting the government‘s motion because
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
First, we observe that the amended indictment retained the allegations regarding Augustine‘s oath of allegiance to Al Qaeda, and thus, even under Augustine‘s legal theory, the amendment did not broaden the indictment. Beyond that, we have previously explained that “Congress defines the elements of an offense, not the charging document.” Deverso, 518 F.3d at 1258 n.2. With that in mind, we note that neither
III.
Augustin, Phanor, and Augustine, who were convicted only on Counts 1 and 2, each challenge the sufficiency of the evidence supporting their convictions. We review de novo the sufficiency of the evidence to support a conviction, viewing the evidence in the light most favorable to the government and making all reasonable inferences and credibility choices in the government‘s favor. United States v. Friske, 640 F.3d 1288, 1290–91 (11th Cir. 2011). “[T]he jury is free to choose . . . among the reasonable conclusions to be drawn from the evidence
presented at trial,” but speculation by the jury is not enough to sustain a conviction based on circumstantial
A.
We begin by reviewing the statutory provisions relevant to Counts 1 and 2. Count 1 alleged a violation of
Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both . . . . To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization [by the Secretary of State under section 219 of the Immigration and Nationality Act], that the organization has engaged or engages in terrorist activity . . . , or that the organization has engaged or engages in terrorism . . . .
Section
Whoever provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section . . .
844(f) or (i) . . . of this title, . . . or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 15 years, or both . . . .
Section
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.
Section
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both . . . .
Under both
the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.
[n]o person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization‘s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization.
Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization‘s direction and control.
Finally,
B.
With respect to their convictions under Count 1, Augustin, Phanor, and Augustine first argue that the evidence was not sufficient to prove that they intended to conspire to provide material support to Al Qaeda in the form of their personal service to Al Qaeda, because they were acting “entirely independently of the foreign terrorist organization to advance its goals or objectives.” See
Neither does the fact that Assaad acknowledged that Batiste had command of the group undermine this conclusion. Under the totality of the evidence presented, the jury was free to conclude that Augustin, Phanor, and Augustine, though immediately under Batiste‘s command, were ultimately volunteering themselves to serve under the direction and control of Al Qaeda. See
Beyond this, while we agree with Augustine and Phanor that the recorded images themselves would not actually have been material in furthering the proposed plot to attack the federal buildings, we nevertheless conclude that Augustine and Phanor‘s volunteering of their service to Al Qaeda was sufficient for a jury to deem it material support in the form of personnel. Section
Augustine and Phanor also point to evidence that they did not really take the oath. Augustine argues that the record indicates that in reciting the oath, he actually changed the words such that he stated his allegiance to himself, rather than to Al Qaeda. Similarly, Phanor argues that he initially refused to take the oath, and only did so after being assured by Batiste that it was “alright” for him to do so. However, we do not find the inadequacies or hesitations in the recitation of the oath to inoculate these defendants from the jury verdict. Instead, it is Augustin, Phanor, and Augustine‘s participation in the ceremony itself, and their resulting awareness of the plot against the Miami FBI building—rather than the particular words uttered by any given defendant—that is sufficient evidence supplying knowledge and intent to their later participation
Neither are we persuaded by Augustin‘s argument that the oath ceremony was not sufficient evidence of his intent because the taking of the oath was motivated by a desire to obtain money from Assaad. He argues that “an oath taken for money is a meaningless gesture,” because it does not establish allegiance to a cause. But allegiance to a cause is not an element of
With respect to Count 2, we first observe that it is not clear that the definition of personnel provided under
We recognize that the evidence supporting Augustin‘s, Phanor‘s, and Augustine‘s convictions on both Count 1 and Count 2 is far from overwhelming. Indeed, two juries failed to convict on these counts. But those juries also failed to acquit. Ultimately, with the benefit of three months of testimony and over five days of deliberation, the third jury arrived at a verdict, distinguishing between the various defendants and various counts. We cannot say that the jury was unreasonable in concluding that the government carried its burden of proving beyond a reasonable doubt that Augustin, Phanor, and Augustine violated
IV.
Augustin argues that the government‘s involvement in the criminal scheme was outrageous and therefore violated the Due Process Clause of the Fifth Amendment. Ordinarily, we review de novo whether the government‘s investigatory techniques constituted outrageous conduct. United States v. Edenfield, 995 F.2d 197, 200 (11th Cir. 1993). But where, as here, the “outrageous governmental conduct” argument was not raised in the district court,9 this Court reviews the issue only for plain error. United States v. Kelly, 888 F.2d 732, 739 & n.12 (11th Cir. 1989).10
Augustin “argues that his conviction violated the Due Process Clause . . . by reason of the Government‘s overinvolvement in the case.” The Supreme Court and this Court have both “recognized the possibility that a conviction may be overturned where government involvement in criminal schemes is so extensive that it may be characterized as ‘outrageous.‘” Owen v. Wainwright, 806 F.2d 1519, 1521 (11th Cir. 1986). But “[g]overnment involvement in criminal schemes is constitutionally impermissible only where it violates fundamental fairness, shocking to the universal cause of justice.” Id. (quotation marks omitted); see also Edenfield, 995 F.2d at 200 (“[I]n the rarest and most outrageous circumstances government conduct might violate that fundamental fairness, shocking to the universal sense of justice mandated by the due process clause of the fifth amendment.” (quotation marks omitted)). Thus, “[e]xtreme circumstances of outrageous government conduct must be shown before a court will find a due process violation.” Owen, 806 F.2d at 1522. “In reviewing charges that official conduct rose to a constitutionally impermissible level, the cases turn on the totality of the circumstances without any single controlling factor.” Id. at 1521.
Here, we cannot say that the government‘s conduct was so “shocking to the universal sense of justice” that it was plain error for the district court to refuse to dismiss the indictment. Edenfield, 995
V.
Batiste and Abraham challenge several of the district court‘s evidentiary rulings relating to the admissibility of lay and expert testimony. We review the district court‘s evidentiary rulings for an abuse of discretion. United States v. Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011). However, “[e]ven if a ruling constitutes an abuse of discretion, it will result in reversal only if the . . . error was not harmless.” Id. (quotation marks omitted) (ellipsis in original). “An error is harmless unless there is a reasonable likelihood that [it] affected the defendant‘s substantial rights.” Id. (quotation marks omitted) (alteration in original). In other words, “nonconstitutional error will be harmless unless the court concludes from the record as a whole that the error may have had a substantial influence on the outcome of the proceeding.” Id. (quotation marks omitted).
A.
First, Batiste argues that the district court erred in admitting some of Special Agent Anthony Velazquez‘s testimony because it was impermissible expert testimony about Batiste‘s criminal intent. Under
Here, Agent Velazquez was permitted to testify as to how the contents of the various recorded conversations and other evidence involving Batiste impacted the course of the investigation.11 Batiste
simply pretending to conspire with the purported terrorist[s], and posturing for the purpose of ripping them off, or scamming them out of money.” As such, he claims that the jury at the third trial was tasked with deciding whether he “meant what he said.” He argues that Agent Velazquez testified, in violation of
We do not find this argument convincing. We note that Agent Velazquez was not asked to testify directly to the state of mind of Batiste. Instead, he was asked about the effect of Batiste‘s statements on the course of the investigation. In other words, Agent Velazquez 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. We acknowledge that this is a very fine line. In light of the specific questions that prompted the challenged testimony, however, we are confident that Agent Velazquez left the ultimate issue of Batiste‘s state of
the U.S. Government by creating a civil war, if you will, [by] creating chaos and confusion in the streets.
Example 3:
Q: What effect did this list, requesting these types of weapons, have on your investigation?
A: It further established that we needed to continue validating information we were receiving, as we did with the follow-up of the items on the list, and gather more information on other members of Batiste‘s organization and the extent to which he had access to other parts of the country and other people.
mind for the jury to decide. See Alvarez, 837 F.2d at 1031. We therefore conclude that the testimony did not violate
Batiste also argues that this lay opinion testimony was not relevant, except for the impermissible purpose of proving Batiste‘s criminal intent. We reject this argument as well. Agent Velazquez‘s testimony as to his perceptions of Batiste‘s intent was relevant, as the phrasing of the questions suggests, to show why the law enforcement agents responded to Batiste‘s statements in the way that they did. Specifically, this evidence helped to establish that the agents were responding to Batiste‘s actions and statements, rather than leading Batiste to act in a way that he was not inclined to. We conclude that the district court did not abuse its discretion in permitting this testimony.
B.
Next, Batiste and Abraham challenge the district court‘s decision to qualify Dan Young as an expert in gangs and allow him to testify about Jeff Fort. Under
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert[ v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993)]; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). But “[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Id. at 1261 (emphasis omitted).
In this case, Agent Young testified, as an expert, that Jeff Fort—the man Batiste compared himself to in one of the recorded conversations—was the leader of a Chicago group, influenced by the Moorish Science Temple, known as the Almighty Black P. Stone Nation or the El Rukns. Agent Young testified about the structure of that organization, and stated that Fort sought support and military equipment from the government of Libya and was convicted for conspiring to shoot down an airplane in exchange for two million dollars. In a later written order on the motion in limine, the district court explained that “Young‘s extensive experience with [Fort‘s organization] and other Chicago street gangs makes his testimony as to their organization, history, symbols, etc. a reliable source of his expert opinion,” and that this testimony was “relevant in educating the jury as to the background and significance of Defendant Batiste‘s statements regarding Jeff Fort, his involvement with the Black Stone Rangers, and his alleged use of gang symbols and codewords.”
Abraham and Batiste argue that Agent Young was not qualified to give this testimony. Specifically, Batiste argues that Agent Young did not have sufficient experience to testify as an expert on the Black P. Stones, the El Rukns, or Jeff Fort. To that end, Batiste points out that Agent Young began his career with the Bureau of Alcohol, Tobacco, and Firearms (“ATF“) in 1989, just as Jeff Fort‘s activities in Chicago were coming to an end with his conviction in the late 1980s. As a result, Young‘s knowledge came from law enforcement reports generated by the ATF, Chicago police, and an article by a University of Chicago professor.
We reject Batiste‘s and Abraham‘s assertion that the district court erred in qualifying Agent Young as an expert. Agent Young‘s expertise for the purposes of this trial did not need to extend to every detail and intricacy particular to Fort‘s personal history and organization. Agent Young‘s experience included fifteen years with the ATF specializing in Chicago street gangs, during which he participated in extensive interviewing and investigation of gang members from the El Rukns and other gangs. Agent Young also acted as a nationwide consultant in over fifty investigations, prosecutions, and sentencings of members of the Black P. Stones, and was consulted for a television documentary series on Chicago street gangs, including Jeff Fort and the Black Stone Rangers. We note that
Batiste and Abraham also argue that the testimony had a minimal probative value and was highly prejudicial. They argue that Batiste‘s one reference to Fort over the course of hundreds of hours of recorded conversations made Agent Young‘s testimony minimally relevant, and that this evidence—given as expert testimony—prejudiced Batiste by equating him with Fort and the El Rukns gang. Batiste elaborates that his single reference to Fort did not suggest that his knowledge about Fort approached the level of detail presented in Agent Young‘s testimony. He argues that the district court erred in refusing to accept his stipulation to a more limited and less prejudicial description of Fort. As a result, Batiste argues that he was placed in a Catch-22 as he was forced to decide between two unattractive options: he could either emphasize Fort‘s violent history—compared to Batiste‘s peaceful one—to distinguish himself from Fort, or ignore Fort‘s violent past and let the comparison between himself and Fort go essentially unchecked.
After examination of the record, we reject Batiste‘s characterization. The explanation of Jeff Fort‘s significance became relevant upon the admission of the recording of Batiste‘s first meeting with Assaad, during which Batiste likened himself to Fort. Once this came into evidence, the district court was within its discretion in admitting Agent Young‘s testimony about Jeff Fort and the El Rukns. Neither do we view this evidence as unduly prejudicial. See
could have limited Agent Young’s testimony further to mitigate the concerns Batiste and Abraham raise, but viewing these rulings, as we are required to, through the abuse of discretion standard, we cannot say that the district court committed error by these rulings.
C.
Batiste also argues that the district court erred in prohibiting him from presenting lay opinion testimony from Lance Williams. On the second day of his defense, Batiste offered the lay testimony of Williams, who had not been listed as an expert witness prior to trial. The defense intended to offer Williams—a Professor of Inner City Studies who was not a gang member, but who grew up around them in Chicago, and whose father was a gang member—to testify (in response to Agent Young’s testimony) that certain words attributed to gangs were actually common slang in urban Chicago. After hearing a proffer of Williams’s testimony, and considering argument from the parties, the district court ruled that Williams could not testify as a lay witness (1) on gang terminology that was part of common language in Chicago, outside of gang circles, (2) that the word “Mo” was used popularly, and (3) that people who were not related, or only marginally related to gangs, were affected by or interacted with gang culture.
Batiste argues that the district court erred in limiting Williams’s testimony because the testimony was based on perception,
young man, he referred to gang members as ‘Folks’ and as ‘People,’” and “as to whether or not there were flags displayed in the exterior of the headquarters of Jeff Fort.” The district court thus carefully distinguished between proper lay testimony based on perception, and impermissible opinion testimony based on expertise. We therefore conclude that the district court did not abuse its discretion in excluding the portions of Lance Williams’s testimony described above.13
VI.
Batiste offers several arguments relating to limitations on his cross-examination of witnesses, which he contends resulted in cumulative error requiring a new trial. As explained above, we review the district court’s evidentiary rulings for an abuse of discretion, but will reverse only if “the error may have had a substantial influence on the outcome of the proceeding.” Bradley, 644 F.3d at 1270 (quotation marks omitted). However, “[e]ven where individual judicial errors . . . may not be sufficient to warrant reversal alone, we may consider the cumulative effects of errors to determine if the defendant has been denied a fair trial.” United States v. Ladson, 643 F.3d 1335, 1342 (11th Cir. 2011).
Batiste had sought disclosures from the government under Giglio v. United States, 405 U.S. 150 (1972) and Napue v. Illinois, 360 U.S. 264 (1959). The district court granted his request for some of these materials, but Batiste contends that the court denied his attempts to inquire on cross-examination into specific details of immigration benefits Assaad received from the government. Batiste also asserts that the district court denied him the opportunity to call an immigration expert to testify about these benefits.14 Batiste argues these rulings deprived him of his right to effectively cross-examine Assaad, who was one of the most important government witnesses. As the government points out, however, the record reveals extensive cross-examination of Assaad regarding his immigration status and any immigration benefits he received, as well as his relationship with the FBI. Thus, even assuming that the district court erred in some way by limiting the cross-examination or expert testimony, we cannot say that “there is a reasonable likelihood that [the asserted error] affected the
defendant’s substantial rights,” Bradley, 644 F.3d at 1270, nor can we say such errors would have denied him a fair trial. See Ladson, 643 F.3d at 1342.
Batiste next argues that the district court erred in barring him from questioning Assaad about a polygraph test he failed in 1997.
Batiste then argues that his Confrontation Clause rights were violated by admission into evidence of the recording of the conversation with Master Athea, because Master Athea was not available for cross-examination. However, the district court instructed the jury that Master Athea’s statements were not offered for the truth of the matters asserted, but rather to provide context for Batiste’s own statements. This Court has explained that the Confrontation Clause is not violated by a non-testifying informant’s recorded statements when offered only to place the defendant’s statements in context. See United States v. Byrom, 910 F.2d 725, 737 (11th Cir. 1990).15 Because Master Athea’s statements were offered only for context,
In sum, we find that the district court did not commit any errors, let alone ones that cumulatively would require the reversal of Batiste’s convictions.
VII.
Finally, all of the appellants challenge the district court’s dismissal of Juror #4 for refusing to follow the court’s instructions on the law. A district court’s decision to remove a juror is reviewed for abuse of discretion. United States v. Register, 182 F.3d 820, 839 (11th Cir. 1999). Under the Sixth Amendment, “[a]ny criminal defendant . . . tried by a jury is entitled to the uncoerced verdict of that body.” Lowenfield v. Phelps, 484 U.S. 231, 241 (1988).
However,
“Any challenge to the district court’s investigation [of juror misconduct] must be viewed in the context of the broad discretion afforded a trial judge confronted with such an allegation of juror misconduct.” United States v. Yonn, 702 F.2d 1341, 1344 (11th Cir. 1983). “In fact, that discretion extends even to the initial decision of whether to interrogate the jurors.” Id. at 1345. “[W]hether a juror is purposely not following the law is a finding of fact that we . . . review for clear error.” Abbell, 271 F.3d at 1302–03.
A.
On the afternoon of Friday, May 1, 2009, after the reconstituted jury had been deliberating for about six hours,16 the jury foreperson sent a note to the district court complaining that “Juror #4 has made up her mind about the trial well in advance of deliberations,” and “she feels deliberating is a waste of time.” The note complained that Juror #4 “mumbles words that should not be said,” which “offend others,” and that her conclusions are based not “upon the evidence and the law,” but instead on “internal beliefs and feelings,” and that this “is unfair to the defendants.” The note concludes: “We have spoken to her on numerous ocassions [sic] and it has not helped. Can Juror #4 be removed? Please help Judge!”
About thirty minutes later, Juror #4 also sent a note to the court, in which she explained that the “trial has been very difficult for [her] in the deliberation room.” Specifically, she wrote that “[no one] respects
The district court summarized the substance of the notes for the parties, and provided relevant excerpts, but decided not to read the notes in their entirety to the parties at that time, in order to avoid the possibility of revealing information about the jury’s deliberative process.17 After discussing the issue with the parties, the district court decided to instruct the jury again that it must base its decision on the evidence at trial and the law provided in the district court’s instructions. The district court also denied various objections to the instructions and motions for mistrial based on the district court’s refusal, at that time, to release the full content of the notes. After instructing the jury, the court discharged the jury for the day, with the expectation that the jury would resume deliberations again on Monday morning.
On Monday, however, Juror #4 called the district court, claiming illness, to say she would not be coming in. As the district court later explained: “Upon further inquiry, Juror #4 indicated that she did not have plans to go to the doctor and was vague as to the extent of her illness.” That morning, at approximately 10 a.m., the jury foreperson sent another note to the court, which stated that “[b]ased upon comments made by Juror #4, we feel that we need to bring to the Court’s attention that it has been deceived.” Specifically, the note said: “Late Friday, May 1st, Juror #4 said during deliberations, ‘I don’t believe in the law.’ ‘I don’t trust the law.’” The note complained that “[r]ather than follow the Court’s instructions, this juror does not want to make any decisions based upon the evidence that the prosecution or defense has provided, but rather relies solely upon her feelings.” The note concluded with another plea: “We once again plead to the Court to act on our behalf and our desire for these Defendant[s] to receive a fair and just trial, by admonishing or dismissing this juror.”
The district court then showed the parties all of the jury’s notes. The government moved to dismiss Juror #4 and replace her with an alternate juror, while counsel for the defendants moved for a mistrial. The district court determined that deliberations “ha[d] not been so infected that they cannot proceed,” but decided that it was necessary to question the jurors to determine “whether . . . everyone in that jury room is willing to follow the instructions on the law, willing to obey the Court’s instructions and willing to apply the evidence to the law.” Thus, the court rejected defense mistrial motions based on suggestions of threats against or undue “cross-examination” of Juror #4,18 but
First, I have a predicate statement that I would say to each juror: I am not asking you nor should you state or reveal either your own opinions or positions on any of the decisions to be made by the jury or the opinions or positions of any other juror. Without telling me what your or any juror’s opinion is regarding the charges or evidence in this case. Question No. 1: Is there any juror or jurors who are refusing to deliberate? Followup question if the person says ‘yes’: What statements, if any, has Juror X made about refusing or being unwilling to deliberate? Question No. 2: Without telling me what your or any juror’s opinion is regarding the charges or evidence in this case, is there any juror who is refusing to follow the Court’s instructions on the law? Followup: What statements, if any, has Juror X, if there’s a positive answer to that question, made about being unwilling to follow the Court’s instructions on the law? Next question: Without telling me what your or any juror’s opinion is regarding the charges or evidence in this case, is there any juror who has refused to apply the law to the evidence or the lack of evidence in the case? If there’s an affirmative answer: What statements, if any, has Juror X made about being unwilling to apply the law to the evidence or the lack of evidence in the case?
The district court questioned each juror, beginning with the foreperson and going up in numerical order, except Juror #4 was questioned last, as she had not yet arrived. The district court later summarized the other jurors’ responses to the court’s questions as follows:
[E]ach juror testified consistently regarding Juror #4’s statements about her refusal to follow the Court’s instructions or the law. In response to the Court’s first question, ‘[i]s there any juror or jurors who are refusing to deliberate?,’ all of the jurors except Juror #9 answered ‘yes’ and identified Juror #4. In response to the Court’s second question, ‘[w]ithout telling me what your or any juror’s opinion is regarding the charges or evidence in this case, is there any juror who is refusing to follow the Court’s instructions on the law?,’ all of the jurors, except for Juror #3, answered ‘yes’ and identified Juror #4. In response [to] the Court’s third question, ‘[w]ithout telling me what your or any juror’s opinion is regarding the charges or evidence in this case, is there any juror who has refused to apply the law to the evidence or the lack of evidence in the case?,’ all of the jurors except Juror #9 answered affirmatively and identified Juror #4. Most importantly, all of the jurors testified that Juror #4 made statements that she did not trust the law, did not believe in the law, or did not agree with the law.
When Juror #4 arrived at the courthouse, the district court questioned her regarding her health, then asked the same questions posed to other jurors, plus the following additional questions:
Are you willing or unwilling to follow the law as given to you by the Court? Have you expressed or stated otherwise to the other jurors? Are you willing or unwilling to apply the law to the evidence or lack of evidence in this case? Have you expressed or stated otherwise to the other jurors? Are you willing or unwilling to deliberate with the other jurors? Have you expressed or stated otherwise to the other jurors?
According to the district court, “Juror #4 responded evasively, taking long pauses before giving answers, and never indicated she was being physically threatened.” In response to the district court’s question about whether she was “willing . . . to follow the law as given to [her] by the Court,” Juror #4 responded: “I’m willing to follow the law. But I’m still entitled to my own— you know, what I feel.” During the course of questioning, Juror #4 became upset and began crying, and the district court permitted her to return to the jury room for a brief recess. When questioning resumed, Juror #4 acknowledged making a statement “about the law in general” that was “misinterpreted,” but insisted that she only meant: “I don’t believe everything I hear.” The district court asked Juror #4 if she was “willing or unwilling to deliberate with the other jurors,” and Juror #4 responded: “I’m really unwilling because I think I’m making myself very ill. This whole situation is making me very ill.”
The next day, after considering the parties’ arguments, the district court dismissed Juror #4. The Court found the other eleven jurors credible and consistent, found Juror #4’s answers to be evasive and incredible, and found beyond a reasonable doubt that Juror #4 had violated her oath and duty as a juror “to follow the Court’s instructions on the law and apply the law to the evidence or lack of evidence.” The court found “as a matter of fact that no substantial possibility exists that [Juror #4] is basing her decision on the sufficiency of the evidence, that she does not intend to apply the law as set forth in the instructions by the Court.” The court replaced Juror #4 with an alternate juror.
B.
Batiste argues that “the conduct of the jury and the district court’s response to this conduct” violated his “right to an uncoerced, unanimous verdict.”19 Batiste describes the allegation in Juror #4’s note that another juror threatened to come across the table as “an assault,” and argues that the district court “brushed aside a serious allegation of harm to Juror No. 4” by failing to inquire into this allegation during the voir dire. Batiste also complains that the district court initially withheld the allegation of juror intimidation contained in Juror #4’s note from the parties by not disclosing the complete notes when the court received them on Friday afternoon.
After review, we conclude that the district court did not err in initially withholding the full notes from the parties, nor in declining to ask specific questions about the alleged “assault.” In both instances, the district court was concerned about invading the jury’s deliberative process. See United States v. Siegelman, 640 F.3d 1159, 1185 (11th Cir. 2011) (“District courts are subject to very stringent limitations on their authority to question jurors about their deliberations . . . .”). Indeed, this Court “has repeatedly emphasized the important policy considerations that require
We also do not agree with Batiste and the other appellants that the district court erred in failing to ask specific questions about the allegation of intimidation during the voir dire. As we observed above, we must afford “broad discretion . . . to a trial judge confronted with such an allegation of juror misconduct,” and “that discretion extends even to the initial decision of whether to interrogate the jurors.” Yonn, 702 F.2d at 1344–45. Moreover, as we recently explained, “[t]he district court’s discretion . . . is at its zenith when the alleged misconduct relates to statements made by the jurors themselves, and not from media publicity or other outside influences.” Bradley, 644 F.3d at 1277 (quotation marks omitted). Given our warning that district courts should “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,” Abbell, 271 F.3d at 1304 n.20, we conclude that the district court acted within its “broad discretion” in asking only general questions that provided Juror #4 with a sufficient opportunity to repeat or elaborate on the allegation of intimidation contained in the note. Bradley, 644 F.3d at 1276.
Batiste further argues that the district court lacked good cause to dismiss Juror #4. He contends that there was a “substantial possibility” that Juror #4’s decisions were based on the evidence. In support of his claim that there was evidence that Juror #4 was participating in deliberations, he points to an earlier jury note indicating that the jury was having difficulty distinguishing between two of the counts. Another note requested a transcript. Batiste also points to the district court’s recognition that Juror #4 took notes. Batiste argues that this constitutes “ample evidence [that] the jury majority’s allegations were based on [Juror #4’s] holdout position and particular views on the evidence, rather than on a true refusal to deliberate and follow the law.” He contends further that Juror #4’s ultimate unwillingness to deliberate, as reflected in her answers at the evidentiary hearing, were the result of the harassment and threats she received in the jury room and not her unwillingness to follow the law and base her decisions on the evidence presented at trial.
The district court here acted within its discretion in removing Juror #4. The district court, consistent with Abbell, first attempted to remedy the problem by re-instructing the jury that it must follow the law as provided by the court. 271 F.3d at 1303–04. The district court dismissed Juror #4 only after problems escalated on
VIII.
For all of these reasons, we affirm the appellants’ convictions.
AFFIRMED.
Notes
Example 1:
Q: Now, at the end of the clip . . . when Elie Assaad says, “What‘s your plan?” and Batiste says, “To build Islam Army” and then further down, “an Islamic Army for Islamic jihad,” what effect did that have on this investigation?
A. The effect that it had was it further established what Batiste‘s intentions were, which was to build an organization by recruiting members from the local community and determining which of those members would be trusted with the ultimate objectives, which was to—which was advocating the overthrow of the United States Government and waging some kind of war in the streets.
Example 2:
Q: Agent Velazquez, at the beginning of this clip, where Narseal Batiste says, “It has to be more than just a bombing. It has to be a real ground war ‘cause somehow or other you got to get the civilians, you have to get the people involved, make them go crazy,” what effect did that statement have on your investigation, if any?
A: It basically established that Batiste is laying out his business model for what his intentions and the ultimate intentions of his organization are, which is the overthrow of