UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERICK JAMAL HENDRICKS, Defendant-Appellant.
No. 19-3232
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: February 19, 2020
20a0049p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:16-cr-00265-1—John R. Adams, District Judge. Before: SILER, GIBBONS, and READLER, Circuit Judges.
ON BRIEF: Christian J. Grostic, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Matthew W. Shepherd,
OPINION
JULIA SMITH GIBBONS, Circuit Judge. A jury convicted Erick Jamal Hendricks of attempting and conspiring to provide material support to a foreign terrorist organization. He raises three issues on appeal. First, Hendricks argues that the trial evidence was insufficient to prove beyond a reasonable doubt that he attempted or conspired to provide material support to a foreign terrorist organization. Second, Hendricks argues that, for substantially the same reason, the district court abused its discretion by denying his motion for a new trial. Finally, Hendricks argues that the district court abused its discretion by partially closing the courtrоom during testimony from an undercover FBI agent. We find that the government presented sufficient evidence for a rational juror to find each element of the charged offenses beyond a reasonable doubt. We also find that the district court properly denied Hendricks a new trial and adequately justified its partial closure of the courtroom. We therefore affirm Hendricks‘s convictions.
I.
A grand jury indicted Erik Jamal Hendricks on one count of cоnspiracy to provide material support to a designated foreign terrorist organization, in violation of
At trial, fоur witnesses—Amir Al-Ghazi, Janet Miller, Hamza al-Ansari, and Amanda Amaro—testified that Hendricks approached them about forming a group for the purpose of waging jihad in the United States. According to Miller, Amaro, and al-Ansari, Hendricks expressed admiration for ISIS and inquired about their views on the organization or its ideology. Hendricks shared that he had purchased land and weapons for his group, occasionally asking whether they owned guns or suggesting that they should be trained to fight or operate weapons. Hendricks also exhorted each to recruit other like-minded individuals and, in some instances, connected them with other recruits.
Al-Ghazi and Amaro testified that they believed Hendricks was trying to form an ISIS cell. Al-Ghazi explained that, when Hendricks approached him, he deduced that Hendricks was “a recruiter for the Islamic State.” DE 95, Trial Tr., Page ID 2204. “I was saying things on Twitter in support of [the] Islamic State,” Al-Ghazi testified, “[s]o if yоu were looking for me” it was because “I was pledging allegiance to ISIS at the time.” Id. at 2191, 2204. Al-Ghazi referred at least one recruit to Hendricks. Amaro also shared that she perceived Hendricks to be “build[ing] . . . an extension of [ISIS] in America.” DE 96, Trial Tr., Page ID 2401. And Miller testified that Hendricks “supported the Islamic State” and “the establishment of [an] Islamic State.” DE 95, Trial Tr., Page ID 2252, 2265. She recalled that Hendricks asked her to put him in direct contact with other ISIS supporters, including a “hate preacher” in the United Kingdom who could act as a “guide into the Islamic State.” Id. at 2254.
Hendricks had similar interactions with an undercover FBI agent, Special Agent Steven Jane. As with the other witnesses, Hendricks conveyed to Jane that he was forming a group to wage jihad domestically. He connected Jane to other recruits and discussed training together on his land. Jane eventually asked Hendricks to define the link between his group and the ISIS organization. Hendricks used the analogy of a body‘s brain and its limbs. His venture, Hendricks explained, was a limb and ISIS the “[u]ltimate brain.” DE 92, Trial Tr., Page ID 1522. “Ultimately the brain is the [caliphate],” he emphasized. Id. at 1518. When pressed by Jane to further clarify whether his cell was “part of the bigger team” (i.e., ISIS) or “a new team,” Hendricks elaborated by comparing ISIS to the headquarters of a business and his cell to an “outpost[].” Id. at 1521–22.
Jane also asked Hendricks how he could help “the brain.” Id. at 1528. Janе indicated a willingness to travel to join ISIS in Iraq or Syria but told Hendricks that he wanted to be sure he had “the blessing of the brain.” Id. In response, while praising Jane‘s proposed travel as a “great deed,” Hendricks said that he had “spoken to senior brothers and the [advice] is to remain here.” Id. at 1529. In a later conversation, Hendricks again told Jane that traveling to join ISIS in Iraq or Syria “is not what senior people requested [of] me.” Id. at 1552. Lorenzo Vidino, Ph.D., an expert on terrorism, testified that these interactions were consistent with ISIS strategy at the time. ISIS leaders, he explained, directed supporters to “[c]arry out attacks wherever you are, . . . under the ISIS umbrella.” DE 93, Trial Tr., Page ID 1696.
At the close of the government‘s case, Hendricks moved under
II.
Hendricks raises three arguments on appeal. First, Hendricks argues that the district court erred in denying his motion for a judgment of acquittal because there was insufficient evidence to sustain his convictions. Specifically, he asserts that, although the government may have proved that he took independent actions inspired by ISIS or supporting its goals, there was
A.
Hendricks first argues that the trial evidence was insufficient to establish that he conspired or attempted to provide material support to ISIS. A defendant challenging the sufficiency of the evidence supporting her conviction “bears a very heavy burden.” United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005) (quoting United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)). When reviewing an insufficient evidence claim on appeal, we must affirm a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “[W]e do not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury,” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994), and “[c]ircumstantial evidence alone is sufficient to sustain a conviction,” even if it does not “remove every reasonable hypothesis except that of guilt,” Spearman, 186 F.3d at 746 (quoting United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)).
In the present case, there was ample evidence from which a rational juror could find that Hendricks attempted and conspired to provide material support to
First, the government presented evidence that Hendricks was communicating with and acting at the direction of senior ISIS members. When discussing ISIS and whether to join the group in Iraq or Syria, Hendricks told Special Agent Jane that he had “spoken to senior brothers.” DE 92, Trial Tr., Page ID 1529. Those individuals, Hendricks claimed, had advised him to “remain here” in the United States, rather than travel overseas. Id. Hendricks repeated the same claim in a second conversation with Jane, stating that traveling to join ISIS in Iraq or Syria was “not what senior people requested [of] me.” Id. at 1552. Thе government‘s expert, Dr. Vidino, testified that the substance of these conversations was consistent with the thinking of ISIS leaders at the time. Although Hendricks contends that he referred to all ISIS supporters as “brothers,” this particular reference to “senior brothers” and “senior people” arose while discussing whether to join ISIS overseas. A jury could thus reasonably infer that Hendricks was communicating with and acting at the direction of ISIS members.
Second, the government presented evidence that Hendricks viewed himself and his recruits as agents of the ISIS organization. In discussions with Jane, Hendricks used the analogy of a body‘s brain and its limbs to describe the relationship between his venture and the ISIS organization. His venture, Hendricks explained, was a limb and ISIS the “[u]ltimate brain.” Id. at 1522. When pressed by Jane to clarify whether his cell was “part of the bigger team” (i.e., ISIS) or “a new team,” Hendricks elaborated by comparing ISIS to the headquarters of a business and his cell to an “outpost[].” Id. at 1521–22. That description was consistent with how Hendricks conducted his recruitment activities. Amir Al-Ghazi, a cooperating witness who connected Hendricks with a prospective recruit, testified that Hendricks identified himself as a “recruiter.” Id. at 2201. Although Hendricks never mentioned ISIS by name, Al-Ghazi understood Hendricks to be a “recruiter for [ISIS],” explaining that Hendricks knew Al-Ghazi had “pledg[ed] allegiance” to ISIS. Id. at 2204. “You wouldn‘t bе looking for me,” Al-Ghazi testified, unless you were specifically interested in his ISIS affiliation. Id. A jury could thus reasonably infer that Hendricks viewed himself as operating on behalf of ISIS.
Finally, the government presented evidence that Hendricks acted in a manner consistent with someone who was operating or seeking to operate on behalf of ISIS. After a terror attack in Garland, Texas, Hendricks ordered Amanda Amaro to disseminate a document he had authored claiming responsibility on behalf of the “Islamic State in America.” DE 160-2, Ex. 53, Page ID 3485. In the document, Hendricks expressed allegiance to the leader of ISIS—referring to him as “our”
Hendricks points out that the record contains no direct evidence that he contactеd ISIS members or was directed to act on behalf of ISIS. The jury, he continues, could therefore only speculate and pile “inference upon inference” to find that he attempted and conspired to direct personnel or services to ISIS. CA6 R. 14, Appellant Br., at 32 (quoting United States v. Coppin, 1 F. App‘x 283, 289 (6th Cir. 2001)). Hendricks is right that the government presented no direct evidence of any conversation or meeting with specific ISIS members where Hendricks was directed or propоsed to establish an ISIS cell. It was not necessary, however, for the government to present such evidence. A conviction may be based on “[c]ircumstantial evidence alone.” Spearman, 186 F.3d at 746 (quoting Vannerson, 786 F.2d at 225). And in this case, there was a mountain of circumstantial evidence from which a juror could find beyond a reasonable doubt that Hendricks attempted and conspired to direct services or personnel to the ISIS organization—not merely operate аn “entirely independent[]” venture.
B.
Hendricks next argues that the district court abused its discretion in denying his motion for a new trial. Under
Hendricks points to the same alleged deficiencies in the trial record to support his argument that the district court abused its discretion. He contends that the absence of direct evidence linking his operations to the ISIS organization outweighs any circumstantial evidence tending to show the same. As outlined above, however, there was ample evidence—whether considered in isolation or in combination—from which a juror could find that Hendricks attempted and conspired to direct services or personnel to ISIS. The district court, in denying his
C.
Hendricks also argues that the district court abused its disсretion by partially closing the courtroom during Special Agent Jane‘s testimony. Jane is an undercover FBI agent who conducts counterterrorism investigations. Prior to trial, the district court entered a protective order governing Jane‘s testimony. The protective order provided, inter alia, that Jane could testify using an “undercover pseudonym,” wear a “light disguise,” enter the courthouse using a nonpublic entrance, and seat himself on the witness stand “outside the presence of the jury and defendant.” DE 84, Order, Page ID 586–87. The order also directed that the public be moved to a different room with real-time audio and display of exhibits but no video or images of the witness. Hendricks challenges only the closure provision on appeal.
The
Here, the district court clearly articulated the necessity and rationale supporting its limited closure of the courtroom. The court explained that Jane‘s safety, as well as the integrity of his active investigations, would be jeopardized if the general public could observe his physical appearance. This was especially so, the district court explained, because the government had “shown that both [Hendricks] and others utilizing the same social media platforms and . . . sharing the same [jihadist] ideologies” had “engaged in extensive counter-surveillance measures to detect undercover law enforcement.” DE 84, Order, Page ID 585. Indeed, as the governmеnt submitted to the court, Hendricks had shared documents detailing how to identify undercover agents and reminded one cooperating witness that “the punishment for telling on a Muslim is death.” DE 63, Mot. for Protective Order, Page ID 348. As even Hendricks concedes, the threat to Jane‘s safety and effectiveness was a substantial reason for partial closures); see also Brown v. Artuz, 283 F.3d 492, 501 (2d Cir. 2002) (“The safety of
The district сourt also considered two alternatives: use of a screen to block the witness and use of a heavier disguise. Both alternatives were designed to obscure Jane‘s true physical appearance—the government‘s main interest—but still allow the public to observe his testimony. After a colloquy about the courtroom‘s layout and the parties’ ability to view the witness, however, the court rejected use of a screen, finding that the measures eventually included in the protective order would be “less intrusive.” DE 126, Hr‘g Tr., Page ID 3037. Hendricks “agree[d].” Id. at 3038. Similarly, with respect to use of a heavier disguise, Hendricks voiced concerns that any physical alterations could interfere with the jury‘s ability to “see the reaction of the witness” or “read his responses facially.” DE 126, Hr‘g Tr., Page ID 3037. The use of a heavy disguise, Hendricks warned, could also infringe upon his right to confront the witness. The court weighed each of thesе considerations and concluded that use of a light disguise, as well as live-streamed audio in a separate room, would best balance the defendant‘s public trial right against both his confrontation right and the government‘s interest in protecting the witness.
Hendricks takes issue with the thoroughness of the trial court‘s findings, arguing that it should have considered whether the light disguise alone was adequate to protect Jane. While the district court could have more clеarly articulated its findings on this point, we can still “glean” the court‘s reasoning and supporting facts “from the record.” Simmons, 797 F.3d at 415 (quoting United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994)); see also Waller, 467 U.S. at 45 (explaining that purpose of findings requirement is to allow review of the reason for closure). The disguise was limited to minor physical details—so minor, in fact, that none of the participants could discern what features, if any, had been altered. The court even stated that observers could “see [the witness‘s] face like any other witness.” DE 92, Trial Tr., Page ID 1418. The disguise, in short, was insufficient to protect an undercover agent from attempts at countersurveillance. After the judge and parties had inspected the witness, Hendricks renewed his objection, and the court—specifically noting the objection—adhered to its prior ruling. True, the court never expressly found that the disguise would allow for identification; however, based on its existing rationale, prior consideration of alternativеs, and reasoned balancing of the parties’ interests, the court‘s adherence to its earlier ruling clearly conveyed that the light disguise was insufficient to protect the witness. We therefore find that the district court did not abuse its discretion.
III.
Based on the foregoing, we affirm Hendricks‘s convictions for attempting and conspiring to provide material support to a foreign terrorist organization.